Full opinion text
PELL, Circuit Judge. Sealy, Incorporated (Sealy) owns trademarks for the “Sealy” brand of mattresses, mattress foundations, and other bedding products. The Sealy brand enjoys substantial national consumer popularity, and Sealy licenses its trademarks to fifteen independent manufacturers, each of which has the primary responsibility to make and sell Sealy products in a defined territory or territories. Sealy receives license royalties, provides uniform product specifications, and also provides for the benefit of its licensees substantial national advertising, product development services, engineering assistance, sales training, and a means of central negotiation for selling to national retail organizations and purchasing certain mattress components. In addition, Sealy itself manufactures and sells mattresses in seven territories, and it also manufactures spring units through three wholly-owned subsidiaries. Over 98% of the stock of Sealy is owned by its licensees, only licensees (or their nominees) are eligible for 11 of the 14 seats on Sealy’s Board of Directors, and the Board’s Executive Committee is composed exclusively of licensees. Ohio-Sealy Mattress Manufacturing Company (Ohio) is a Sealy licensee with primary responsibility for six territories. Ohio is the largest and one of the best of the Sealy licensees, producing a high quality product efficiently, selling it effectively, and compiling an enviable profit record. In United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), the Supreme Court invalidated the system of exclusive manufacturing and sales territories on which Sealy then predicated its licenses. (Sealy at the time was not itself engaged in manufacturing mattresses.) Looking at “substance rather than form,” id. at 352, 87 S.Ct. 1847, the Court thought it clear that the exclusive territories were restraints imposed by a horizontal combination of potential competitors, because Sealy was obviously “a joint venture of, by, and for its stockholder-licensees [who are] themselves directly, without even the semblance of insulation, in charge of Sealy’s operations.” Id. at 353, 87 S.Ct. at 1850. Because the exclusive territory system operated to give each licensee an enclave free from the competition of other Sealy licensees, it amounted to an allocation of markets per se violative of Section 1 of the Sherman Act, 15 U.S.C. § 1, without regard to asserted justifications for the system. After the Supreme Court’s decision, Sealy revised its licensing agreement, eliminating exclusive selling territories. In 1971, Ohio initiated this action, complaining that Sealy had continued to effect the evils the Supreme Court condemned, albeit by more subtle means, that Sealy’s methods of dealing with national retail customers also violated the Sherman Act, and that Sealy was engaged in illegal tying and price-fixing arrangements regarding certain mattress components. Damages well in excess of $6,000,000 were claimed, and declaratory and injunctive relief was sought. Sealy counterclaimed, seeking substantial damages and other relief. The damage claims of the parties were tried before a jury over a period of four months in 1974 and 1975. Although both Sealy and Ohio had several objections to the jury’s instructions, no complaint thereof is made on appeal. Ohio’s evidence indicated damages on its complaint of $9,233,563 (before trebling, see Section 4 of the Clayton Act, 15 U.S.C. § 15). Sealy’s counterclaim evidence indicated damages of $14,701,479. The jury rendered a general verdict for Ohio on its complaint, awarding damages of $6,814,852, and against Sealy on its counterclaim. Thereafter, the district court denied Sealy’s motion for judgment n. o. v., and denied its motion for a new trial conditionally on Ohio’s accepting a remittitur of 50% of its $20,444,556 trebled damages. Ohio accepted the remittitur. After later hearings on equitable relief, the district court denied it. The court also ruled that Ohio was not entitled to interest on its judgment for the twenty-month period between the jury’s verdict and the court’s entry of final judgment in the case. Ohio appeals from the judgment’s denial of equitable relief and interim period interest, and Sealy cross-appeals from the denial of its motions for judgment n. o. v. and for a new trial. A fuller statement of the pertinent facts of the case will be given in the context of the issues presented for decision. I. Sealy’s Motion for Judgment Notwithstanding the Verdict If Sealy is correct that the district court should have granted its motion for judgment n. o. v., most of the rest of the issues on appeal will be academic. Accordingly, we consider this possibility first. In doing so, we are guided by the “well established” rule that a motion for a directed verdict or for judgment n. o. v. is properly denied where the evidence is such that reasonable men in a fair and impartial exercise of their judgment may draw different conclusions therefrom. Hannigan v. Sears, Roebuck and Co., 410 F.2d 285, 287 (7th Cir. 1969), cert. denied, 396 U.S. 902, 90 S.Ct. 214, 24 L.Ed.2d 178; see also Fontana Aviation, Inc. v. Beech Aircraft Corporation, 432 F.2d 1080, 1084 (7th Cir. 1970), cert. denied, 401 U.S. 923, 91 5. Ct. 872, 27 L.Ed.2d 826 (1971). We are bound to view the evidence in the light most favorable to [Ohio] and to give it the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962) (footnote omitted); accord, Hannigan, supra at 288. This is particularly true in complex antitrust cases such as this one “where motive and intent play leading roles,” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), because “[f]indings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses” by the trier of fact. United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); Lambert Corporation v. Evans, 575 F.2d 132, 136 (7th Cir. 1978). Ohio argues, as a threshold matter, that judgment n. o. v. was absolutely precluded by Sealy’s failure to file a motion for directed verdict “at the close of all the evidence,” which Rule 50(b), Fed.R.Civ.P., makes a necessary predicate of a later motion for judgment n. o. v. Sealy’s directed verdict motion was made at the close of its case, i. e., after all but certain rebuttal evidence was taken. The motion was not thereafter renewed, but we agree with the district court that Sealy adequately preserved its right to a ruling on the sufficiency of Ohio’s evidence. The application of Rule 50(b) in any case “should be examined in the light of the accomplishment of [its] particular purpose as well as in the general context of securing a fair trial for all concerned in the quest for the truth.” Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co., 532 F.2d 572, 576 (7th Cir. 1976); and see Rule 1, Fed.R.Civ.P. Rule 50(b) serves the important purpose of ensuring that a motion for judgment n. o. v. is used only to invite the district court to reexamine its decision not to direct a verdict as a matter of law, and not, in contravention of the Seventh Amendment, to reexamine facts found by the jury. Pittsburgh-Des Moines, supra at 576. Where the court’s attention is directed to a party’s contention that the pertinent evidence presented entitles it to judgment as a matter of law, the motion’s purpose is served. Moran v. Raymond Corp., 484 F.2d 1008, 1014 (7th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974). Nor does the introduction of additional evidence after a directed verdict motion necessarily call for a different conclusion, especially where, as here, the district court expressly determines that “there was no probability that any evidence presented during rebuttal and/or surrebuttal could have prompted this Court to grant any motion for a directed verdict.” See Moran, supra at 1012; Gillentine v. McKeand, 426 F.2d 717, 722 (1st Cir. 1970). Another purpose of Rule 50(b) is avoidance of making a trap of a motion for judgment n. o. v. where, e. g., a directed verdict motion would point out a defect in proof that the opposing party might remedy thereafter. Pittsburgh-Des Moines, supra at 576. There was no possibility of any such trap here, where the directed verdict motion came after both parties rested their cases in chief. Any additional proof which Ohio could properly introduce on rebuttal was in no way foreclosed, and no suggestion is made that the motion for judgment n. o. v. hinged in any material way on Ohio’s lack of rebuttal evidence or Sealy’s surre-buttal proof. We conclude, as did the district court, that under this court’s “liberal view of what constitutes a motion for directed verdict in deciding whether there was a sufficient prerequisite for the motion for judgment,” Moran, supra at 1014, Sealy is entitled to have its attack on the sufficiency of Ohio’s evidence heard on the merits. A. Market Allocation The evidence in the case would clearly have allowed a jury to find the following facts with reference to Ohio’s claim that Sealy was engaged in a scheme of market allocation. Soon after the Supreme Court’s decision in United States v. Sealy, Inc., Sealy’s Board of Directors met to consider Sealy’s future operations. Concern was expressed over the invalidation of the exclusive territory system, and the resulting dangers from the competition of “renegade,” “out of control,” “predatory” licensees, and from retailers which might attempt to play licensees off against each other to obtain lower prices. In conjunction with antitrust counsel, Sealy began the process of working out alternatives to preserve as much of the perceived benefit of its former system as the Department of Justice and the courts would allow in the light of the Supreme Court decision. The final decree entered in United States v. Sealy, Inc., 1967 Trade Cases ¶ 72,327 at 84,855 (N.D.Ill. Dec. 26,1967), enjoined Sealy and its licensees from any arrangement “to limit or restrict any manufacturer in any substantial way to sales of Sealy products within a prescribed territory.” Id. at 84,856. At the proceeding during which the decree was signed, John Sarbaugh, Chief of the Midwest Office of the Antitrust Division of the Department of Justice, made the following statement about the pertinent language of the decree: We do not interpret this language as prohibiting per se the employment of manufacturing location clauses, areas of primary responsibility clauses, or passover provisions. In so saying, we are in no way implying any view as to the legality of such clauses under the antitrust laws, nor, of course, are we suggesting that such clauses would not violate the decree if they have the effects proscribed by [its] language. With this background, Sealy developed a new license agreement (including each of the provisions mentioned by Mr. Sarbaugh, and more) which was signed by all of Sealy’s licensees, with one exception. The new 1968 license agreement maintained the same territories as had been used before, with Sealy promising not to license anyone else to manufacture Sealy products in a licensee’s territory. The territories, however, were no longer to be exclusive as to sales. While each licensee was assigned primary responsibility to promote Sealy sales in his area, it also had the right to sell Sealy products in the territories of other licensees. Each licensee was to be held accountable for satisfactory performance in its area of primary responsibility (APR), and, as an incentive thereto, the contract provided that once the licensee achieved a certain sales quota in its APR, its royalties on all subsequent Sealy sales that year (inside or outside his APR) would be halved. Licensees were authorized to manufacture Sealy products only at the location(s) specified in their agreements and such additional locations as Sealy might thereafter approve in writing. Licensees were obliged to pay royalties on all products manufactured in licensed plants, whether or not the products were sold under a Sealy name. Products bearing the Sealy name, not surprisingly, were subject to higher royalty rates. In addition to the normal royalties, if a licensee sold Sealy products outside its APR it was subject to two additional charges. First, it would pay Sealy (and Sealy would thereafter pay the licensee whose APR was “invaded”) pass-over payments equal to the percentage of the out-of-APR sales corresponding to the invaded licensee’s prior year advertising and promotion expenses divided by that licensee’s total sales. The precise amount of pass-over payments could not be predicted in advance in any given instance, but testimony indicated the range of payments could be from 2.2% to 11%. An additional charge was made for product service repairs on out-of-APR sales, amounting to 1% at the time of trial. Sealy was to have a right of first refusal should a licensee wish to sell its business. Licensees were forbidden to acquire any interest in any competitive organization, although this provision apparently would not preclude a licensee from manufacturing and selling competitive private brand merchandise through a subsidiary. Ohio’s theory of its case was that although many or all of the provisions to which we have just referred might be legal in and of themselves, they were designed and used by Sealy in per se violation of the Sherman Act to achieve a division of markets. In addition to receiving a Rule of Reason instruction pertaining to all aspects of Ohio’s case, the jury was told that market allocation is per se illegal, and that the above restrictions were not themselves per se illegal unless used to achieve a market allocation, i. e., to limit or restrict “in any substantial way, the geographic areas in which products may be sold.” Because the jury awarded damages vastly in excess of those claimed for the other aspects of Ohio’s case, it necessarily found that Sealy had allocated markets. Deferring for later consideration Sealy’s arguments that the evidence shows no injury and no antitrust damages to Ohio, we think it plain that the district court did not err in allowing the jury to decide whether or not Sealy had illegally divided markets. In assessing the evidence making a jury question of market allocation, we bear in mind the horizontal nature of the restraints involved. As we have pointed out, the Supreme Court’s decision in United States v. Sealy, supra, expressly held that the structure of the Sealy organization mandated the conclusion that its arrangements were horizontal ones. That structure, as pertinent, stands unchanged now. Sealy half-heartedly argues that the fact that it now itself manufactures and sells in certain territories introduces elements of verticality to the picture, but we cannot agree. Whatever may be said about the way Sealy conducts its business in those territories, it is indisputably clear that any restraints applied to the independent businesses which are licensees result directly from the concerted action of their horizontal potential competitors. Accordingly, as Sealy agreed by accepting the district court’s instructions on market allocation, if Sealy’s license agreement and its conduct thereunder amounted to substantial limitations on manufacturers’ sales territories, a per se violation existed. See Topco, supra; Sealy, supra; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947); Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). We also emphasize that Sealy’s approach to the alleged restraints misses the mark. Repeatedly, Sealy argues that, e. g., areas of primary responsibility, exclusive manufacturing licenses, location clauses, pass-over payments, rights of first refusal, etc., have all been held at one time or another not to violate the antitrust laws. That is certainly true enough, but we know of no authority holding that these devices, alone or in conjunction, do not violate the antitrust laws even though they have effects plainly within the ambit of those laws. On the violation issue, Sealy consistently refuses to address what was obviously Ohio’s case theory, on which the jury was appropriately instructed in agreed language. It is thoroughly established that “[a]cts which may be legal and innocent in themselves, standing alone, lose that character when incorporated into a conspiracy to restrain trade.” Kurek v. Pleasure Driveway and Park District of Peoria, 557 F.2d 580, 587 (7th Cir. 1977), judgment vacated, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), judgment reinstated, 574 F.2d 892 (7th Cir. 1978) (per curiam); see Simpson v. Union Oil Co. of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); Poller v. Columbia Broadcasting System, Inc., supra, 368 U.S. at 468-69, 82 S.Ct. 486. Moreover, in antitrust cases plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. “The character and effect of a conspiracy are not be judge by dismembering it and viewing its separate parts, but only by looking at it as a whole.” Continental Ore Co. v. Union Carbide & Carbon Corp., supra, 370 U.S. at 699, 82 S.Ct. at 1410 (citation omitted). Ohio proved that the mattress business is substantially local in nature, because of the bulk and weight of the product, the fact that retailers typically do not care to warehouse the product, and the need for frequent customer .sales calls. As Sealy concedes, the great majority of mattress sales are made within 200-300 miles of a manufacturing plant. Exclusive manufacturing territories in the mattress industry thus tend to have the effect of limiting to some degree the areas in which any licensee can effectively compete. The jury was not instructed, however, that this effect alone would suffice to constitute an antitrust violation, and, indeed, Ohio does not attack Sealy’s exclusive manufacturing area system, except in those limited cases where a significant market is left inadequately served by a licensee’s refusal to locate a plant in proximity thereto. The local nature of the mattress business and the exclusive manufacturing areas used by Sealy really do little more than set the stage for the balance of the restraints attacked. Any licensee could, e. g., engage in significant intrabrand competition at least with his neighboring licensees if Sealy’s restraints went no further. But Sealy did go further, as we have said. It limited its licensees to manufacturing at specified locations. While no one from Sealy squarely admitted it, the jury could have found from Ohio’s evidence that the purpose of this provision — which did not exist at the time of the Supreme Court’s decision — was to prevent aggressive licensees like Ohio from locating plants near the periphery of their APR’s, from whence they could compete effectively against neighboring licensees. The evidence also supported the conclusion that Sealy used the clause against Ohio in 1970 and 1973 to achieve exactly that purpose, when Ohio twice sought permission to locate a plant at Toledo, and Sealy twice denied it, at least partly in order to protect the interests of the Detroit licensee. The degree to which Sealy licensees could effectively compete with each other from their fixed central locations was necessarily reduced by the charges Sealy imposed on out-of-APR sales. Taking the less onerous charge first, Sealy required licensees to pay 1% of out-of-APR sales to cover product service repairs made by “invaded” licensees. Although the original conception of this charge involved its being paid to Sealy to hold in a fund from which to compensate licensees who actually provided such repairs, in execution the charge was paid over to “invaded” licensees whether or not they ever repaired a single mattress. Ohio’s evidence indicated that any such repairs were typically made by the selling licensee, and Sealy’s president admitted that quality control on Sealy products was so good there were seldom product service repairs required, and that he saw little legitimate purpose in the 1% charge. The jury could have found it exacted a 1% tax on exercise of the “right” to sell outside a licensee’s APR. Sealy also imposed pass-over payments, supposedly designed to prevent an out-of-territory licensee from taking a “free ride” on an APR licensee’s efforts and expenses to develop the Sealy name in its APR. Like the product service repair charge, pass-over payments have a plausible theoretical justification. The jury could nonetheless have found from the evidence that the payments unjustifiably served as a barrier to intrabrand competition. Ohio's economic expert, Dr. Willard F. Mueller of the University of Wisconsin, formerly and for many years the Chief Economist and later the Chief of the Bureau of Economics at the Federal Trade Commission, told the jury that the function of developing consumer preference for Sealy products was almost exclusively performed by Sealy’s national advertising program, and that local advertising was designed primarily to increase local sales. A prime example of the type of advertising expense incurred locally was a cooperative advertising program for retailers, who ran local newspaper advertisements to attract customers to a bedding sale, very possibly featuring other brands as well as Sealy products. Even if there were some “free rider” effect from such advertising, the jury could easily have found that compensating an “invaded” licensee to the full proportionate extent of all his advertising and promotion expenses went much further than needed for the limited articulated purpose. The possible dampening effects on competition of pass-over payments that could run as high as 11% must have been obvious to the jury. Dr. Mueller testified that in fact the pass-over payments and the product service repair charges created barriers that made it very difficult to compete effectively outside the APR. He also testified that the expectation derived from his substantial experience would have been that significant intrabrand competition would have developed after the Supreme Court invalidated Sealy’s exclusive territories, but that no significant amount of such competition existed. As we have indicated, Sealy inserted in its license agreements a provision giving it a right of first refusal before a licensee sold its business. Once again, this is a contract term inoffensive in itself, that the jury, however, could have found to have been used to perpetuate enclaves relatively free from intrabrand competition. Sealy had a right to veto a proposed sale of a licensee’s business on objective business grounds, but it never invoked that provision when Ohio sought to acquire another licensee’s business, because Ohio is obviously a well-qualified licensee. Instead, although the right of first refusal had never been exercised against anyone else, it was exercised five times against Ohio. In late 1970 and early 1971, Ohio contracted to acquire the Philadelphia licensee. After the neighboring Baltimore licensee (a member of Sealy’s Board of Directors, and of the Board’s Executive Committee) complained, Sealy exercised its right of first refusal, and the Philadelphia licensee withdrew the business from sale, as was its right. In 1972, the scenario was repeated, but this time Sealy succeeded in acquiring the business. In mid-1970, Ohio sought to acquire the Florida licensee, Sealy announced its intention to exercise its right of first refusal (after complaint by a neighboring licensee director), and the business was withdrawn from sale. In 1972, Ohio again sought the Florida business. Despite feelings that the price was too high, Sealy blocked Ohio’s efforts to acquire the Pittsburgh licensee and acquired it for itself. In all three instances, the businesses acquired have lost money since Sealy bought them. To be sure, Sealy had a more legitimate explanation of its exercises of the right of first refusal. It took the position at trial that the Supreme Court decision spurred bona fide interest in reconstituting Sealy as a national integrated vertical manufacturer/distributor of bedding. (The Court had distinguished White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963), where it held that vertically imposed territorial limits were not subject to the per se rule, 388 U.S. at 354, 87 S.Ct. 1847; and see Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977), and such limits practiced by a vertically integrated supplier would seem to be an a fortiori case if, indeed, the threshold requirement of a combination or conspiracy could somehow be met in such a case.) The short answer to this theory is that Ohio introduced evidence that a desire to stop Ohio from intrabrand competition was the true reason for Sealy’s acquisitions, e. g., that influential neighboring licensees complained, that Sealy paid a price it considered too high for Florida, and that it persisted in acquiring licensees Ohio sought to buy despite the fact Sealy could not operate them profitably. The choice between the conflicting evidence and the differing inferences was for the jury, not for the district court in considering Sealy’s motion for judgment n. o. v., and not for us in reading a cold record on appeal. Sealy advances one additional argument on the issue of a market allocation violation that we believe deserves brief attention. Although Sealy agreed to the district court’s per se allocation instruction, it argues now that the Rule of Reason was the only possible basis of its liability and that Ohio did not satisfy the rule Sealy says that its acquiescence in the per se instruction does not bar this argument because it does not seek reversal on the basis of improper instructions, see Fed.R.Civ.P. 51, but rather asserts that under the law truly and properly applicable to the case Ohio’s case should never have been submitted to the jury. It insists that this is particularly true where the law has changed after the trial, because an appellate court is bound to render decision on the issues before it on the basis of currently applicable law. As Sealy’s argument derives from Continental T. V., Inc. v. GTE Sylvania, Inc., supra, decided after final judgment was rendered below, we agree that the argument should be considered, see Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), but we reject it on the merits. Sylvania overruled United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), and held, as had the White Motor case, supra, decided only four years before Schwinn, that vertically-imposed territorial limitations must be judged not by a per se rule but by the Rule of Reason. Because the Court in Sylvania expressly reaffirmed the appropriateness of the per se rule for horizontal territorial limits, 433 U.S. at 58, n.28, 97 S.Ct. 2549, it is difficult to see how the decision advances Sealy’s argument. It insists nonetheless that the very premise of the Sylvania decision is that restrictions on intrabrand competition may promote interbrand competition, thus making it impossible to say that such restraints have the requisite “manifestly anticompetitive” nature to justify a per se rule of illegality. Id. at 50, 97 S.Ct. 2549; and see Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). In United States v. Topco Associates, Inc., supra, however, the Court rejected exactly this argument in the context of horizontal restraints, 405 U.S. at 610-11, 92 S.Ct. 1126, and the Sylvania decision expressly reaffirmed that rejection. 433 U.S. at 57, n.27, 97 S.Ct. 2549. A horizontal agreement among potential competitors to develop a national brand and not to compete with each other in selling it is, we think, considerably more suspect than limitations imposed by a single independent manufacturer on its distributors as a condition of their distributorships, but even if we were inclined to agree with Sealy’s arguments to the contrary, we believe the Supreme Court has foreclosed that approach. Moreover, had we accepted Sealy’s argument that only the Rule of Reason could be applied, we would be unable to agree that Ohio failed to make out a jury case under that rule. Dr. Mueller testified, e. g., that the national mattress industry was heavily concentrated and the market was heavily conditioned to acceptance of major brand names, and that, accordingly, an increase in intrabrand competition — in this industry at least — would also promote increased inter-brand competition. We now turn to Sealy’s contentions that Ohio demonstrated no antitrust injury and no antitrust damages compensable under Section 4 of the Clayton Act, 15 U.S.C. § 15. Section 4 provides treble damages to “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . .” After final judgment herein, the Supreme Court decided Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), an important case in the interpretation of Section 4, and one on which Sealy heavily relies. In Brunswick, a large national producer of bowling equipment had acquired numerous bowling alleys that had defaulted in their debts to the producer. It was conceded before the Court that the acquisitions violated Section 7 of the Clayton Act, 15 U.S.C. § 18, in that they might substantially lessen competition or tend to create a monopoly, and that but for the acquisitions, the alleys would have failed. Plaintiffs were operators of bowling alleys competing with those acquired by Brunswick, which established that they would have gained larger market shares and profits had Brunswick not acquired its alleys and kept them in business. The Court held that plaintiffs were foreclosed as a matter of law from recovering the profits thus lost, despite the causal link between the lost profits and the antitrust violation. More was required, specifically a nexus between the recovery sought and the purposes of the antitrust laws. In Brunswick, a Section 7 violation existed only because a “deep pocket” giant was entering a market of “pygmies.” 429 U.S. at 487, 97 S.Ct. 690. Yet if the failing alleys had acquired refinancing or been purchased by “shallow pocket” firms, plaintiffs would have suffered the same loss, despite the absence of a Section 7 violation. Similarly, if the alleys had been prosperous, Brunswick’s acquisition would have been at least as illegal, yet plaintiffs would have suffered no loss. Id. As the Court pointed out, plaintiffs were really seeking damages for loss caused by fair competition, in total perversion of the purposes of the antitrust laws. As the Court summarized the teachings of its Brunswick decision: Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. Id. at 489, 97 S.Ct. at 697 (emphasis in original). Sealy argues here that Ohio totally fails to meet that standard. At the outset, we note that Sealy’s argument goes too far. To justify judgment n. o. v. even with respect to the market allocation theory to which the Brunswick argument is addressed, Sealy would have to demonstrate that absolutely no antitrust injury was evidenced at trial. That cannot be said here. To take but one example, the jury was entitled to find that pass-over payments and product service repair charges were parts of a plan of market allocation, and Ohio introduced evidence of nearly $170,000 paid to Sealy thereunder. We do not believe an argument can be made that a tax on intrabrand competition is not the type of injury the antitrust laws were intended to prevent or that it does not flow from that which makes a market allocation scheme illegal. Nonetheless, if Sealy is correct that Ohio’s lost profit damages resulting from Sealy’s acquisition of the Florida, Pittsburgh, and Philadelphia licensees are not compensation for antitrust injury, a new trial would be required because the amount of damages awarded by the jury established as a mathematical certainty that compensation for those lost profits was a part of the jury’s verdict. The thrust of Sealy’s argument is that the competitive situation would have been the same regardless of whether the prior licensee, Ohio, or Sealy had primary responsibility for the territories in question. It insists that Ohio is merely a disappointed desirous purchaser of the licensees, and that to award damages for the disappointment is a perversion of the antitrust laws. If Ohio had claimed damages here on the theory that, e. g., Sealy’s acquisitions in themselves violated Section 7 of the Clayton Act, Sealy’s argument might have some plausibility. Sealy ignores, however, the theory Ohio argued to the jury and on which the district court gave instructions, that Sealy’s exercise of its right of first refusal was a part of a scheme of market allocation, done to keep Ohio from establishing new bases from which it might effectively compete with neighboring licensees. Evidence indicated that had Ohio acquired the territories, its policy of competing across the borders of its APR’s would have produced significant in-trabrand competition that did not occur under Sealy’s management of the territories. Moreover, there was evidence that within the APR’s themselves, Sealy would have been a more efficient producer and more effective interbrand competitor. While Sealy would not presumably have blocked Ohio’s attempted acquisitions for the purpose of limiting effective inside-APR inter-brand competition, evidence indicated that a loss of that competition may have been a price Sealy was willing to pay to achieve the primary purpose of maintaining territorial restraint. There was, in other words, evidence of an illegal scheme to divide markets, intentionally effectuated against Ohio by means of Sealy’s acquisitions, resulting in harms both to intrabrand and interbrand competition because Ohio’s contracts to acquire the licensees were frustrated. We believe the profits lost thereby do reflect injury of a type the antitrust laws were intended to prevent and do flow directly from the anti-competitive scheme that made Sealy’s acquisitions illegal. Obviously, to the degree the profits Ohio would have made might include profits that a poor interbrand competitor committed to avoiding intrabrand competition could also have made, they do not totally reflect an actual harm to market competition. But as the Court made clear in Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), and Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961) (per cu-riam), private antitrust suits need not be premised on actual diminutions in market competition, so long as they involve anti-competitive conduct aimed at the plaintiff. The refinement made in Brunswick is simply that the injury claimed “should, in short, be ‘the type of loss that the claimed violations . . . would be likely to cause.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S., at 125, 89 S.Ct. 1562.” 429 U.S. at 489, 97 S.Ct. at 697 (footnote omitted). That test is amply met here. B. Tying and Price-Fixing of Mattress Components It is undisputed that Sealy required its licensees to manufacture Sealy products in accordance with certain specifications. The specifications required use in mattress foundations of a torsion bar element called a Posturegrid, which is a patented product of the Universal Wire Spring Company. Sealy also insisted that certain other specified components be purchased from designated approved suppliers. Mattress springs are the component primarily in issue here. Sealy had three subsidiaries that manufactured spring units and that were at all pertinent times approved suppliers. Evidence established without dispute that Universal Wire and approved spring manufacturers paid to Sealy a charge of from three to five percent of their sales to the licensees, unbeknownst to the licensees. The jury could have found that the charge was in the nature of a payment for the privilege of being a supplier to Sealy licensees, akin to a commission to Sealy for purchases it forced its licensees to make. There was also evidence that prices for Posturegrid assemblies and spring units under this system were significantly higher than for comparable products available in the market. Sealy’s chairman, indeed, admitted that something of a “captive market” existed for spring units for Sealy products. Ohio also introduced evidence that during the late 1960’s, Sealy’s original spring manufacturing subsidiary (in Rensselaer, Indiana) agreed with the only other manufacturer then approved to supply Sealy licensees that the two firms would set the same prices. We agree with Ohio and the district court that it was proper to send Ohio’s components claims to the jury. “[A] tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product . . . .” Northern Pacific Railway Co. v. United States, supra, 356 U.S. at 5, 78 S.Ct. at 518. Because they deny competitive access to the tied product market on the basis of the seller’s leverage in the tying product market, and force buyers to forego free choice between sellers, such arrangements are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a “not insubstantial” amount of commerce is affected. Id. at 6, 78 S.Ct. at 518 (citations omitted); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 498-99, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). Sealy, as we have said, does not dispute that it conditions the license of its trademarks on the licensee’s use of specified components from designated suppliers. Nor does it deny that its unique and legally protected trademarks, see United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 619, 621, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977), which have achieved substantial consumer acceptance, create sufficient power to allow it to restrain competition in the market for the components, or that a substantial volume of commerce is affected. Sealy does argue, nonetheless, that the challenged practices are not of the type properly condemned as tying arrangements. With reference to the Posturegrid specification, Sealy points out that the Universal product was patented and argues that it was the legal patent monopoly that foreclosed competitors’ access to Sealy licensees. This assertion unfortunately misses the thrust of Ohio’s claim, that Sealy wrongfully mandated use of the Posturegrid and gained hidden rebates thereby, at the expense of the licensees. We quite agree with Ohio that a patented product, like any other, may be illegally tied. “The antitrust laws do not permit a compounding of the statutorily conferred monopoly.” United States v. Loew’s, Inc., 371 U.S. 38, 52, 83 S.Ct. 97, 105, 9 L.Ed.2d 11 (1962). Sealy also insists that the vice condemned in the tying cases simply cannot be found where a trademark licensor specifies the patented products of a third company for use by its licensees, because the licensor, whatever the power conferred by his trademark’s value, cannot be said to be using it to invade a second market. We agree that there is no illegal tying arrangement where a “tying” company has absolutely no financial interest in the sales of a third company whose products are favored by the tie-in. Crawford Transport Company v. Chrysler Corporation, 338 F.2d 934 (6th Cir. 1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Keener v. Sizzler Family Steak Houses, 1977-2 Trade Cases ¶ 61,-682 at 72,800 (N.D.Tex.1977); Rodrigue v. Chrysler Corporation, 421 F.Supp. 903 (E.D. La.1976). Here, however, it is undisputed that Sealy received substantial rebates from Universal on sales to the licensees, and, moreover, that those rebates were concealed from the licensees. The concealment aspect alone might have justified a jury’s decision to disbelieve Sealy’s claim that the payments made to Sealy were not in return for the specification of Universal’s product as mandatory Sealy components. In addition, the asserted justification for the payments was that they were compensation for Sealy’s technical efforts in helping Universal adapt its torsion bar concept to the mattress industry. Yet Sealy’s President admitted that Universal had prior to dealing with Sealy applied the concept to the mattress industry (though an improvement was still needed at the time), and, as was brought out at trial, the written agreement between Sealy and Universal made no reference to Sealy’s provision of technical assistance, though it did state that Universal was to provide technical assistance to Sealy. Sealy’s third argument on the Posturegrid units, that the specification was not shown to be other than a bona fide decision on the basis of product merit by a trademark owner to protect the essential characteristics of the trademarked product, may be disposed of briefly. The jury could have found from the evidence we have discussed that Sealy forced the use of the Posturegrid and was paid handsomely by Universal simply for creating a captive market in which it could and did charge a premium price. Even if the Posturegrid was a superior product, such an arrangement was unlawful. See Osborn v. Sinclair Refining Co., 286 F.2d 832 (4th Cir. 1960), cert. denied, 366 U.S. 963, 81 S.Ct. 1924, 6 L.Ed.2d 1255 (1961), a case very similar to this one. Regarding mattress spring units, Sealy takes the position that an essential element of a tying case is proof of actual foreclosure of competition. It cites Fortner Enterprises, Inc. v. United States Steel Corp., 523 F.2d 961, 967 (6th Cir. 1975), rev’d, United States Steel Corp. v. Fortner Enterprises, Inc., supra; Coniglio v. Highwood Services, Inc., 495 F.2d 1286 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974); and Driskill v. Dallas Cowboys Football Club, Inc., 498 F.2d 321 (5th Cir. 1974), to support this proposition, and says that Ohio has failed to introduce the requisite proof. Because the Supreme Court has repeatedly held that tying, if it fits within the Northern Pacific standard, is a per se violation, we are not free to inquire whether such tying in any given case injures market competition. Sealy’s argument, however, is somewhat more subtle than that, and we agree that if a given tying arrangement has no potential to foreclose access to the tied product market, it does not exemplify the vice that led the Court to declare tying a per se offense. Coniglio and Driskill amply illustrate the proper bounds of the actual foreclosure rule. In these cases, the practices of two National Football League clubs of requiring season ticket buyers to purchase preseason exhibition game tickets in the same package were attacked as illegal tie-ins. Because both clubs had a complete monopoly, however, in the tied as well as the tying market, there could be no foreclosure of competitive access to the tied market resulting from the tie-in. If the same thing could be said here, Sealy would have been entitled to a directed verdict on mattress spring tying. We think there was clearly a jury question on foreclosure during the pertinent period, however. Only approved manufacturers could supply Sealy licensees. Sealy’s own subsidiaries were always approved. Prior to 1972 (when Sealy obtained patents on the then-specified spring units) only two other firms were approved, the Steadley Company from which Ohio purchased and a west coast firm referred to as Laisco. Both firms paid, as the jury could have found, a commission to Sealy for the privilege of supplying Sealy licensees. See Osborn, supra. The Steadley Company was induced to agree to base its prices for specified units on those charged by Sealy’s manufacturing subsidiary. The jury was entitled to infer that no firm which would not play the game by these rules would win Sealy’s approval as a supplier. In this context, Sealy’s statement that there was no evidence it ever denied supplier approval carries much less weight than might otherwise be the case. Moreover, the jury could have concluded Sealy attempted to force Steadley and Lais-co out of the suppliers’ market. In 1970, Sealy developed new specifications which it thought patentable, and applied for a patent thereon. Although Sealy now cites its licensing of a supplier under the patent, after it issued in 1972, as evidence of its magnanimity and of lack of foreclosure, Sealy advised both Steadley and Laisco in 1970 that if a patent issued no one would be licensed thereunder. Thus even if Steadley withdrew from supplying Sealy springs in late 1970 because of a lack of desire to incur tooling costs that would not be recoverable over a reasonable amortization period if the patent issued, the jury could have concluded that Sealy used the no-license threat to drive Steadley out of the market during the interim period. (When Steadley did withdraw, only Sealy’s subsidiary was left in the captor selling market created by the specifications.) Furthermore, Steadley asked for the specifications for the new system so that it could tool up to produce the new springs, or at least consider doing so, and Sealy refused to provide them. Thus it is not even clear Steadley would not have been willing to be a supplier in the interim period. There was also evidence to support the conclusion that Sealy used its quality control inspection and approval powers to force Steadley out of the market. Sealy’s President at one point in 1970 wrote to its Vice President suggesting that Sealy ought to consider continuing to allow Steadley to manufacture approved products (despite alleged quality control problems) as a bargaining tool to avoid problems from Stead-ley regarding the proposed change of specifications that would put Steadley out of the business of supplying Sealy licensees. C. The National Accounts Agreement To deal with potential customers such as Montgomery Ward & Co., Sears, Roebuck & Co., and J.C. Penney Co., which sell bedding at many retail outlets throughout the country, Sealy developed its national accounts program, which was originally embodied in a separate agreement but which is now a part of Sealy’s license agreements. Under this program, Sealy approached the national accounts directly and attempted to negotiate agreement to supply both Sealy-brand products and private label products according to agreed specifications and at agreed prices. Once agreement was reached, each Sealy licensee was given the opportunity to participate in the program for the particular national account involved. Participation, we emphasize, was wholly voluntary. Any licensee was free not to participate, and to negotiate directly with the customer in an attempt to supply all or any part of the customer’s needs. (Sealy has not had exclusive dealing contracts with any national account.) Even though a licensee might originally elect to participate, it was perfectly at liberty at any time to withdraw from the program and to begin negotiations with the customer. While a licensee was in the program, however, it was obliged to supply the customer’s outlets in its APR with the specified products at the agreed price. The customer was not prevented from specifying that it wanted deliveries to any given outlet made by a licensee which did not have primary responsibility for the territory in which the outlet was located. This in fact did occur from time to time. Sealy’s primary national account was Montgomery Ward & Co. (Ward’s). The furniture merchandise manager for Ward’s testified that his company had committed itself to a policy of purchasing from firms that could serve Ward’s needs nationally, because of the efficiency, simplicity, and flexibility available in dealing with a single source of supply. He also testified that if Sealy eliminated the national accounts program, Ward’s would turn to other national suppliers to meet its needs and would not return to its earlier “chaotic” practice of purchasing from many manufacturers. This testimony was undisputed. Sealy officials testified that the existence of such attitudes among national account customers was the reason for the program Ohio attacks, and this testimony also was never seriously challenged. Ohio participated in the national accounts program until 1974, at which time it withdrew. Since that time, Ohio has vigorously sought to capture a significant part of Ward’s business, offering lower prices than those provided by the Sealy-Ward’s contract. As we have noted, Ohio is an efficient high quality manufacturer. Nonetheless, Ohio has not been successful in garnering Ward’s business, because of Ward’s preference for dealing with a national supplier. Asserting the illegality of the national accounts program, Ohio sought $106,766 in damages for sales it alleged it would have made to Ward’s (and to J.C. Penney, in a much smaller amount) but for the program. We have concluded that the district court should have directed a verdict in Sealy’s favor on this claim. First, as Sealy points out, the profits lost from sales to Ward’s resulted from Ohio’s purely voluntary choice to compete for the business on its own, not from any illegality that arguably might have infected the national accounts program. Both causation and Brunswick, supra, problems pose insurmountable obstacles to the recovery sought. Second, and more fundamentally, we are unable to perceive how a jury could have found the national accounts program to be illegal. It is clear that a joint selling agency is not per se violative of the antitrust laws. In Appalachian Coals, Inc. v. United States, 288 U.S. 344, 53 S.Ct. 471, 77 L.Ed. 825 (1933), the Supreme Court applied the Rule of Reason to, and ultimately approved, an arrangement by which 12% of the coal suppliers in a given region sold all their coal to all buyers through a joint agent. The Court did so notwithstanding a finding, which it did not overturn, that prices for coal would rise as a result of the arrangement, because the economic circumstances extant made the arrangement reasonable, and demonstrated that real competition would continue to exist in the market. The case before us would appear to follow a fortiori from Appalachian Coals. Here the joint sales agreement applies only to a limited type of customer, no licensee is foreclosed from competing for the business independently, and there is absolutely no basis in the record for assuming that a powerful national purchaser like Ward’s is foolishly suffering a higher price from the program than it could at any time obtain from other national suppliers that no doubt would be pleased to have the business. Sealy’s success with Ward’s, in fact, appears to reflect an increase in interbrand competition with no diminution of intrabrand competition, because Sealy licensees could not have competed effectively for the business without combining to offer a single source of supply. In 2361 State Corporation v. Sealy, Inc., 402 F.2d 370, 374 (7th Cir. 1968), this court had occasion to consider Sealy’s national accounts program. We indicated at that time that the Rule of Reason ought to be applied to the program, but held that Sealy had not met the strict requirements to justify summary judgment under the rule. See Poller v. Columbia Broadcasting System, Inc., supra, 368 U.S. at 473, 82 S.Ct. 486. Ohio has had its day in court to attack the program — it has had, in fact, four months in court — but it has failed to demonstrate the anticompetitive vice inhering in it. It will not do to lump the program indiscriminately in with the proven elements of Ohio’s territorial allocation case, as Ohio invites us to do. Although most sales are assigned to licensees on the basis of APR’s, this is not invariably the case, and, more importantly, no licensee is restrained by the program from competing in any territory for the business of national account customers. Nor does Ohio’s assertion that it has proved a resale price maintenance agreement between Sealy and Ward’s advance its argument. If such an agreement were found, the antitrust laws would surely provide a remedy, by way of trebled damages caused thereby (which Ohio did not claim to suffer) or an injunction, sought by one injured by the agreement (which Ohio did not claim to have been) or the United States. But the existence of the agreement, which we assume arguendo, really says nothing about the reasonableness of the program, which is a separate practice in a separate market. Ohio also claimed damages of nearly $300,000 in royalties paid to Sealy on Ohio’s sales of non-Sealy label goods. The license agreement called for royalties on such sales (in lower amount, naturally, than for Sealy products), and Ohio attacks this provision of the agreement. Because nearly all the sales in question were made to Ward’s, the parties treat this claim as part of the national accounts element of Ohio’s case, but the rationale of liability is quite distinct: Ohio says that to require the payment of royalties on products not sold under Sealy’s trademark is a per se violation of the antitrust laws, citing Zenith Radio Corp. v. Ha-zeltine Research, Inc., supra, 395 U.S. at 135-36, 89 S.Ct. 1562. Zenith, however, does not stand for the propositions for which Ohio’s claim requires its support. First, the Court did find patent misuse in that case, but it expressly stated that it does not necessarily follow that the misuse embodies the ingredients of a violation of either § 1 or § 2 of the Sherman Act Id. at 140, 89 S.Ct. at 1585. Second, the misuse involved was the conditioning of a patent license on the licensee’s agreement to pay royalties on products both using and not using the teachings of the patent. The Court expressly reaffirmed the rule of Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), that a patent owner could negotiate for royalties on total sales (whether or not all sales used the patent) as a convenient measure of the value of the license. It was simply the refusal to license on any other terms that constituted the misuse, and the Court pointed out that no inference of such conditioning could properly be made simply because a license provision called for royalties on total sales. 395 U.S. at 138, 89 S.Ct. 1562. Even if the leverage allegedly used by Sealy to obtain non-Sealy product royalties were the bare grant of the right to use a patented product, Ohio’s claim would fail for the lack of a showing of conditioning. Although the letter accompanying Sealy’s post- United States v. Sealy decree proposed license agreement indicated that the failure to accept the agreement would lead to license termination, extensive negotiations were in fact had over agreement provisions, and Ohio was able to obtain revisions in the proposed agreement. There was no evidence that Ohio sought to eliminate the non-Sealy royalties, which no doubt would have resulted in a higher royalty on the Sealy-brand products. Moreover, Sealy obtained royalties not merely for the bare license of its trademark, but also for significant advertising, technical, and other services. To argue that none of the services provided in the package could have benefited the licensed plants other than in the production and sale of Sealy-brand products is to far outrun the facts in the record. It is significant, also, to recall that over 97% of the royalties Ohio paid were for sales to Ward’s. Without the organizational and management services of Sealy, and the specifications developed between Ward’s and Sealy, such sales would never have been made, as Ohio’s experience since withdrawing from the national accounts program so amply demonstrates. Our analysis in this section of the opinion leads to the conclusion that the jury was permitted to consider awarding $401,681 in damages for practices of Sealy that did not violate the antitrust laws. That error obviously does not entitle Sealy to a judgment n. o. v. on all of Ohio’s case. Because we cannot know that the jury did not award the full amount claimed on these theories, that amount would have to be deducted from the amount of the verdict to insure the lack of prejudice to Sealy. The consequences of our conclusion here on the judgment appealed cannot be determined, however, just yet. In Section II of this opinion, we consider the attacks made on the district court’s decision to condition the denial of Sealy’s new trial motion on a 50% remitti-tur. If the district court was right, an additional remittitur offer of $401,681 (trebled) would cure the error we have found. If Sealy is right that prejudicial errors existed that remittitur could not cure, our remarks on national accounts and non-Sealy royalties will become only guidance for the future conduct of the litigation. And if there did not exist prejudicial errors sufficient to mandate new trial or justify the remittitur, then the accepted remittitur would render totally harmless the submission of these theories to the jury. II. Prejudicial Misconduct, Remittitur, and New Trial As we have stated, the district court denied Sealy’s motion for a new trial conditionally on Ohio’s accepting a 50% remittitur, which it did. The court rejected Sealy’s claims that references to Sealy Mattress Co. of Southern California v. Sealy, Inc., supra, 346 F.Supp. 353, and United States v. Sealy, supra created improper prejudice, but ruled that trial misconduct by Ohio’s counsel had led the jury to award excessive damages for which the remittitur was suggested as a cure. Sealy argues here that the court’s findings of trial misconduct amounting to prejudice required the court to grant a new trial, because the prejudice could not be said to have been confined to the damage award. Ohio denies that there was prejudicial misconduct, but insists that the district court acted properly to cure it if there was. We must confess to having some difficulty understanding how prejudicial misconduct could be said with certainty to have affected the jury’s decision only as to damages. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22, 51 S.Ct. 501, 75 L.Ed. 1243 (1931). We do not decide the question here, however, because we have reached the conclusion that the district court committed clear error in ruling that prejudicial misconduct existed. As we have indicated, Ohio denied the existence of prejudicial misconduct in its brief, although its primary contention on this issue was that the district court’s resolution of any problem that may have existed was adequate. At oral argument, Ohio renewed its denial of prejudice, asking that this court, if it should be inclined to accept Sealy’s challenge to the cure of remittitur, satisfy itself that the district court was correct in finding prejudice. Any hesitancy we might have had in addressing an issue not fully discussed in the briefs on appeal is more than alleviated by the voluminous post-trial briefs file