McGuire v. Times Mirror Company , 405 F. Supp. 57 ( 1975 )

405 F. Supp. 57 (1975)

Charles McGUIRE et al., Plaintiffs,
v.
The TIMES MIRROR COMPANY, etc., et al., Defendants.

No. CV 75-3612-AAH.

United States District Court, C. D. California.

December 8, 1975.

Law Office of G. Joseph Bertain, Jr. by Timothy H. Fine, San Francisco, Cal., and Simon & Sheridan by James J. Coyle and Donald B. Bachrach, Los Angeles, Cal., for plaintiffs.

Gibson, Dunn & Crutcher by John J. Hanson, and Donald L. Zachary, and William A. Niese, Los Angeles, Cal., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW DENYING PRELIMINARY INJUNCTION

HAUK, District Judge.

Plaintiffs' motion for Preliminary Injunction came on for hearing on November 24, 1975. In support of their motion, plaintiffs filed over 600 pages of memoranda and affidavits while defendant the Times Mirror Company ("Times Mirror") filed 158 pages of memoranda and affidavits in opposition, as well as a 226 page Appendix devoted to the issue of the Fair Trade laws. In addition, plaintiffs took the depositions of Messrs. Nelson, Clarke and Tiffany, representatives of Times Mirror, on November 5, 6 and 7, 1975, and the transcripts of these depositions, totaling 390 pages, were filed by plaintiffs. At the hearing on their motion, plaintiffs requested the opportunity to present testimony which request was granted. Plaintiffs presented seven witnesses and several exhibits in support of their motion, while Times Mirror offered the testimony of one witness in rebuttal. The testimony was presented over the period of one and one-half days. Plaintiffs presented several hours of oral argument, and Times Mirror argued in opposition. The transcript of the hearing covers approximately 425 pages.

Having considered all of the foregoing, and pursuant to Rule 52 of the Federal Rules of Civil Procedure and Rule 7 of the Rules of the Central District of California, the Court makes the following Findings of Fact and Conclusions of Law which respect to the motion of plaintiffs for a preliminary injunction.

FINDINGS OF FACT

1. Plaintiffs are independent contractors engaged in the purchase, distribution and sale of the Los Angeles Times ("The Times") pursuant to the terms and conditions of written Dealer Agreements with defendant The Times Mirror Company. Plaintiff Charles McGuire, John S. Zinn, Wayne S. Stanford, Robert O. Ahlstrom, Gordon P. Palaro, Norbert A. Zytowski, Daniel Pawlowski, Steve Rajcic, Thomas D. Stoddard, Jr., Joseph Matranga, Warren Ropp, Jesse L. Tolton, Floyd W. McKinsey, Rudolph C. DeLuna, W. H. Hopkins, James C. Dennis, James N. Hopkins, Warren H. Churchill, Michael Maleta, Richard M. Williams, Robert C. Lewis, Kenneth Carrington, Richard Kramer, Melvin R. Stern, Richard Bishop, Thomas O. Schlotfeldt, Edward P. Palkovic and Norman E. Johannes are presently, and have been during the four years preceding the filing of the First Amended Complaint for Preliminary and Permanent Injunctive Relief and Damages Under the Antitrust Laws of the United States of America and Demand for Jury Trial ("First Amended Complaint") engaged in the purchase, distribution and resale of The Times to home delivery subscribers pursuant to terms and conditions of a written Home Delivery Dealer Agreement. Plaintiffs McGuire, Palaro, McKinsey, DeLuna, W. H. Hopkins and James C. Dennis are parties to a Home Delivery Dealer Agreement of the from attached to the First Amended Complaint and marked as Exhibit A. The remaining Home Delivery Dealer plaintiffs are parties to a Home Delivery-Dealer Agreement of the form attached to the First Amended Complaint and marked as Exhibit B. Plaintiffs Richard M. Kemp, Jr., Brian D. Gruber, Charles P. White, Paul Jimenez, James D. O'Keefe, Irving Levy, David Waring, Horace W. Howland, Robert W. Ash, Paul L. Bluff, Angelo J. Masi, Steven Z. Krstich, Abraham Baron, Robert Cohen, Edgar G. Barclift, Leon F. Martinez and Charles C. Conn are presently, and have been during the four years preceding the filing of the First Amended Complaint, engaged in the purchase, distribution and resale of The Times to retail outlets (such as drugstores, markets, newsstands and motels), purchasers from newsracks and newsvendors pursuant to the terms and conditions of a written Street Sale Dealer Agreement with Times Mirror identical or similar to the form attached to the First Amended Complaint and marked as Exhibit C.

2. Times Mirror is and has been at all material times a corporation organized and existing under the laws of the State of California with its principal place of business in the City and County of Los Angeles, California. Times Mirror prints and publishes daily and Sunday the Los Angeles Times.

3. The Times is currently distributed by Times Mirror through two separate distribution systems. Under one system, Times Mirror sells the home delivery editions of The Times to Home Delivery Dealers, including plaintiffs, who resell to home delivery subscribers and other single copy purchasers. Home delivery subscribers constitute approximately 75% of the total circulation of The Times. Under the other system, Times Mirror sells the street sale editions of The Times to Street Sale Dealers, including plaintiffs, who distribute the paper to the public in one of two ways. Most street sale papers are sold to individual purchasers through newsracks, while the remainder are sold to various retail outlets and newsvendors for resale to single copy purchasers.

4. All Home Delivery and Street Sale Dealers distribute The Times pursuant to the rights granted by written agreements between themselves and Times Mirror. Each of those agreements contains a provision which requires the dealer to sell The Times to his customers at a price which does not exceed the maximum price stipulated by Times Mirror pursuant to the California and Federal Fair Trade laws.

5. Times Mirror is in free and open competition with similar commodities of the same general class produced by others. Approximately 85% of the circulation of The Times is in Los Angeles and Orange Counties, and all of the plaintiffs except one distribute the paper within those two counties. Twenty daily newspapers, in addition to The Times, are published in Los Angeles and Orange Counties. In addition, over 100 weekly, semi-weekly and control distribution newspapers, including ethnic and religious publications, are also published and either sold or delivered at no cost in Los Angeles and Orange Counties. Moreover, three "national" newspapers, The Wall Street Journal, The Christian Science Monitor and The New York Times are sold daily in these two counties, with The New York Times having Sunday editions as well. The daily papers published in Los Angeles and Orange Counties are significant competitors to The Times, as are the numerous electronic and print media which originate in the area. While no single daily newspaper has a circulation which equals that of The Times, in the aggregate these daily newspapers have a weekday circulation of approximately 1,231,710 and a Sunday circulation of approximately 1,052,374. It should be added that although The Times is the dominant weekday and Sunday newspaper among newspapers published in Los Angeles and Orange Counties the relevant market, with 46% of week-day, 54% of Sunday and 84% of morning newspapers published in this market, nevertheless its circulation is less than the total circulation of all newspapers distributed and sold weekly and Sunday in this market.

6. Under the Federal and State Fair Trade laws, Times Mirror is the publisher of a commodity which bears the trademark, brand or name of its producer and which is in free and open competition with similar commodities of the same general class produced by others. Times Mirror is therefore free to stipulate the maximum price at which The Times is resold by its dealers, including plaintiffs.

7. In the distribution of The Times, Times Mirror and its Home Delivery and Street Sale Dealers perform entirely separate functions. Times Mirror is the publisher of the paper. It prepares and prints over 1,000,000 copies of the newspaper daily and in excess of 1,200,000 on Sunday. It has agreements with 232 Home Delivery Dealers, including plaintiffs, in the greater Los Angeles metropolitan area. These Home Delivery Dealers each distribute approximately 2,800 newspapers each day to individual subscribers. Times Mirror transports the newspaper to a designated point and delivers them to the Home Delivery Dealer. The latter employs approximately 15 persons who physically deliver the newspaper to subscribers' homes, apartments, etc. Times Mirror also has agreements with 82 Street Sale Dealers, including plaintiffs, in the greater Los Angeles metropolitan area. Each Street Sale Dealer sells about 2,500 papers daily and about 3,800 on Sunday. Each Street Sale Dealer employs approximately eight persons, who deliver the newspaper to retail outlets, newsracks and newsvendors. These retail outlets and newsvendors sell single copies of the paper to individuals.

8. The Home Delivery Dealer performs the function of delivering the newspaper to homes, apartments, etc., daily and Sunday on a monthly subscription basis. The Home Delivery Dealer is not engaged in the business of selling newspapers to Street Sale Dealers, retail outlets and newsvendors, but in a few instances Home Delivery Dealers did make sales to the latter street Sale Vendors, retail outlets and newsvendors by "bootlegging" the same in violation of their agreements with The Times.

9. The Street Sale Dealer performs the function of selling and delivering the newspaper to stores, newsracks and newsvendors. The Street Sale Dealer is not engaged in the business of selling and delivering newspapers to homes, apartments, etc., on a monthly subscription basis, but in a few instances Street Sale Dealers did make sales to Home Delivery Dealers by "bootlegging" the same in violation of their agreements with The Times.

10. Times Mirror is not functionally on the same level as its Street Sale Dealers, nor does it compete on any level for the customers of its Street Sale Dealers. The relationship between Times Mirror and its Street Sale Dealers, including plaintiffs, is vertical in nature, not horizontal. Times Mirror is the publisher of the newspaper, not a wholesaler of it. Times Mirror publishes The Times and sells it to Street Sale Dealers who, in turn, endeavor to make sales through newsracks and to stores and newsvendors. Times Mirror does not sell directly to individual buyers in any part of Los Angeles or Orange Counties. Times Mirror does not sell directly to newsvendors or store accounts in either of those two counties. The Street Sale Dealer sells to individual buyers and to newsvendors and store accounts. There is no competition between the Street Sale Dealer and Times Mirror.

11. Since Times Mirror neither functions on the same level as its Street Sale Dealers, including plaintiffs, nor competes with them on any level, Times Mirror and its Street Sale Dealers are not both wholesalers within the meaning of the California and Federal Fair Trade laws.

12. For a number of years, Times Mirror has entered into written agreements with its Home Delivery and Street Sale Dealers which define the territories which the dealer is obligated to serve. However, there is no provision in any of these agreements specifically restricting any dealer, including plaintiffs, to sales within the designated territory.

13. On August 17, 1972, shortly after the filing of the First Amended Complaint in Floyd W. McKinsey, et al. v. The Times Mirror Company, Civil No. 72-1394-RF, Times Mirror sent letters to all of its dealers, including plaintiffs, informing them in writing that they were free to sell The Times wherever they wished, although each dealer continued to be committed to solicit and promote sales of The Times in the geographical area specified in his Dealer Agreement and to service all customers in that area.

14. At least since August 17, 1972, Times Mirror has had no agreement or understanding with any dealer, including plaintiffs, which confines the dealer to sales in any particular area. Plaintiffs have presented no facts which demonstrate otherwise.

15. For a number of years, Times Mirror has charged its dealers, including plaintiffs, different prices, or rates, for the copies of The Times purchased by them. The rate which each dealer pays for The Times is individualized to take into account the nature of his primary area of distribution. For example, a dealer whose territory is relatively flat and compact does not pay the same rate for the paper as a dealer whose territory is hilly and dispersed. Similarly, a dealer who services mostly single family dwellings where papers can be delivered with a minimum of stops does not pay the same rate as a dealer whose area is comprised largely of apartment buildings where numerous stops are required. This pricing method employed by Times Mirror is both fair and necessary to reflect the variations between dealerships.

16. Times Mirror has, for over three decades, stipulated the price at which The Times is resold by dealers so that, by keeping the price of the newspaper at the lowest possible level, it could build the circulation of The Times to its current level and sustain that circulation even though it is in vigorous competition with other newspapers.

17. Times Mirror derives its revenues both from the sale of newspapers and from the sale of advertising. Times Mirror obtains approximately 85% of the revenue of The Times from advertising and approximately 15% from circulation. Revenues from advertising are much more significant than those from newspaper sales, however. In fact, the price received by Times Mirror for each copy of The Times is less than the cost of the newsprint contained in it. As a result, Times Mirror is vitally interested in the profitable flow of advertising revenue.

18. Advertising revenues of The Times are derived from the sale of advertising space. The amount of space purchased by advertisers is influenced by the price of advertising and circulation, among other factors. Price and circulation are the most important factors to advertisers since they are chiefly concerned with their costs expressed in terms of the number of potential buyers which The Times reaches.

19. Advertisers have access to statistics in the form of audit reports, surveys and representations from electronic and print media concerning the percentage of households in given areas reached or claimed to be reached by them. This rate of penetration, determined largely on the basis of circulation within a specific geographic area, along with the cost of reaching a given number of potential customers, is very important to advertisers in their purchasing decisions. The penetration of total households by The Times in Los Angeles and Orange Counties is 30% on weekdays and 35% on Sundays.

20. Circulation, and hence The Times rate of penetration, varies with the price of the newspaper. Circulation will decrease after an increase in the price. Thus, price increases must be carefully planned and instituted so as to minimize circulation losses and thereby preserve the circulation base which is essential to advertising revenue. The fierce competition for advertising revenues protects the public by imposing price restraints on Times Mirror.

21. Times Mirror is vitally concerned with the price of the paper because of its integral relationship to the whole revenue structure and ultimate profitability of the newspaper. Times Mirror is also interested in having a uniform price, since that uniformity facilitates the promotion of circulation and avoids hostility towards the newspaper from customers who are paying more for the paper than are other customers.

22. Events during the past three years have caused Times Mirror to re-evaluate its current systems of distribution. The distribution systems have been repeatedly attacked under the antitrust laws in a series of lawsuits. Moreover, around May, 1975, it became clear that either the California or Federal Fair Trade law would be repealed, thus making the current distribution systems for The Times arguably illegal. As a result, Times Mirror formulated new distribution plans for The Times and, on October 13 and October 16, 1975, announced its intention to implement these plans on January 1 and January 5, 1976.

23. The new distribution systems for The Times represent a complete and total departure from those which have been employed for the past three decades. The fundamental concept of the new systems is that The Times will be sold directly by Times Mirror to its customers.

24. Effective January 1, 1976, all home delivery editions of The Times will be sold by Times Mirror directly to home subscribers in Los Angeles and Orange Counties (the relevant market) without any intermediary purchaser. Times Mirror will do all customer solicitation, all billing, virtually all collections, will assume all risk of non-collections, and will receive all customer complaints and service requests. All the delivery agents will do is deliver. Times Mirror will enter into Written Delivery Agent Agreements with approximately 230 independent contractors, who will agree to assemble and deliver The Times to those subscribers designated on a list provided by Times Mirror. For that service, they will earn between $15,000 and $25,000 a year, a sum reasonably comparable to that which they have earned in the past.

25. The new system for home delivery is not a subterfuge or mask for a consignment agreement or any other agreement covering the purchase and resale of the paper. It is strictly a delivery agreement, under which Times Mirror employees will be selling the newspaper and making all other contacts with the subscriber. Compare Exhibits A and B (old home delivery system) with Exhibit D (new delivery agent system).

26. Effective January 5, 1976, all street sale editions of The Times will be sold directly by Times Mirror through newsracks to single copy purchasers, and directly by the company to newsvendors and retail outlets, in Los Angeles and Orange Counties (the relevant market), all without intermediary buyers and resellers. Distribution of street sale editions of The Times, including solicitation, delivery, the handling of complaints and collections, will be handled entirely by employees of Times Mirror. Compare Exhibit C (old street sale system) with new street sale system by Times Mirror employees.

27. In order to implement its new delivery systems, Times Mirror has announced to all of its current Home Delivery and Street Sale Dealers that their contracts will be terminated and that the new systems will become effective on January 1 and January 5, 1976, respectively. These terminations are being made pursuant to the company's express right, as stated in each Home Delivery and Street Sale Dealer Agreement, to terminate each agreement upon 30 days' written notice.

28. Times Mirror is contracting with approximately 230 new Home Delivery Agents. All persons currently operating under a Home Delivery Dealer Agreement, including plaintiffs, have been invited to participate in the new home delivery distribution plan for The Times by becoming Delivery Agents. As of the date of the hearing on plaintiffs' motion, approximately 200 Home Delivery Dealers had signed Delivery Agent Agreements.

29. Times Mirror is hiring 51 persons to serve in various managerial positions in the street sales distribution system. All Los Angeles and Orange County Street Sale Dealers, including plaintiffs, were invited to apply for these positions. On October 16, 1975, Bert R. Tiffany, Director of Circulation for The Times, sent all Street Sale Dealers, including plaintiffs, a letter which stated, in pertinent part:

"We will be conducting employment interviews and will hire the best qualified persons from among those interested in employment. In the meantime, if you are interested in employment with The Times, please contact us. Please feel free to call me personally if you have any special problems you would like to discuss."

This invitation was unconditionally extended to each and every plaintiff.

30. Beginning on October 17, 1975, employees of the Circulation Department of The Times contacted 30 to 35 Street Sale Dealers to see if they were interested in becoming employees of Times Mirror. On the same date or shortly thereafter, and in response to Tiffany's letter of October 16, approximately 35 Street Sale Dealers called the Circulation Department to indicate their interest in becoming employees, and thereafter the Circulation Department responded to these calls. No plaintiff contacted Times Mirror about employment, and the employees of the Circulation Department were advised by the attorneys for Times Mirror not to contact them because of the pending antitrust litigation. However, Robert D. Nelson, Executive Vice President and General Manager of The Times, instructed the top officials of the Circulation Department to respond personally to any call from any plaintiff seeking information about employment, and to consider each applicant on his individual merits, regardless of his status as a litigant. As of the date of the hearing on their motion, no plaintiff had contacted anyone at Times Mirror to express an interest in employment.

31. On November 3 or 4, 1975 officials of Times Mirror with extensive personal knowledge concerning the applicants reviewed the applications for employment in the street sale system and chose the best qualified persons from among the applicants to fill the various managerial positions available. As of the date of the hearing, Times Mirror had entered into binding agreements with regard to 49 of these 51 positions.

32. In terminating its Home Delivery and Street Sale Dealer Agreements, Times Mirror did not in any way attempt to retaliate against plaintiffs, or any of them, because of their participation in antitrust litigation against the company. The contracts of all Home Delivery and Street Sale Dealers, whether or not they were involved in litigation, were terminated on exactly the same terms and at exactly the same time. Each Home Delivery and Street Sale Dealer, including plaintiffs, will be paid upon termination certain amounts set out in their Dealer Agreements. Moreover, all plaintiffs who currently are Home Delivery Dealers were offered the opportunity to become Delivery Agents, and all plaintiffs who are Street Sale Dealers were offered the opportunity to apply for employment in the Street Sales distribution system. There was no discrimination against plaintiffs whatsoever in extending the opportunity to participate in the new distribution systems.

33. The decision of Times Mirror to terminate its current distribution systems and to implement its new distribution systems as of January 1 and January 5, 1976 was made by Times Mirror unilaterally. There is no evidence of any agreement, combination or conspiracy between Times Mirror and any other person or entity.

34. The decision to terminate all independent contractor dealers and to transfer their functions to company employees was not made for the purpose of illegally fixing prices or for any other anticompetitive purpose whatsover. The principal objective of the new distribution systems of The Times is to increase its total circulation and penetration in Times Mirror's primary marketing area by having a low, uniform price for the paper. Times Mirror's decision was made to insure that its business was in full compliance with the law and to maintain the greatest degree of influence which the law will allow over all aspects of the circulation of The Times, including not only influence over the price but also over all other aspects of the distribution of the newspaper.

35. The new distribution systems announced by Times Mirror will have no anticompetitive effects. Since Times Mirror will sell The Times directly to all consumers, there will be no price fixing; rather, there will simply be a publisher establishing the price at which it sells its own product to its customers. Plaintiffs have presented no evidence to demonstrate that the new distribution systems will have any effect on the other daily newspapers sold in Los Angeles and Orange Counties. Finally, the new systems proposed by Times Mirror will not have any effect on intrabrand competition, since plaintiffs have not established that such competition existed on more than a de minimis basis.

36. In order to bring about the termination of the present methods of distributing The Times and to implement the new distribution systems, Times Mirror has hired or committed itself to hire hundreds of new employees and has expended or committed itself to expend millions of dollars. Some 89,500 square feet of space must be leased at an aggregate annual cost of about $210,000, leases for most of which have already been signed. Equipment of all kinds must be obtained, ranging from delivery vans and lift trucks to filing cabinets and typewriters. All of this equipment has been ordered, with much of it being already delivered, at an aggregate cost of more than $1 million. Offices have been remodeled at a total cost of more than $80,000. Telephone facilities are being expanded, the installation costs of which approximate $17,500, with the expanded facilities resulting in Times Mirror's telephone bill increasing by almost $280,000 annually. In order to give Times Mirror the capacity to bill directly almost 700,000 home subscribers to The Times, the data processing equipment of the company is being modified and expanded at a cost of more than $200,000. In addition, some 1,500 new full-time and part-time employees must be hired by Times Mirror, and many of these persons have already been placed on the payroll.

37. The total non-payroll out-of-pocket costs which Times Mirror is committed to expend in order to bring the present distribution systems of The Times to an orderly conclusion and to implement the new distribution systems will exceed $1,300,000, a substantial portion of which has already been spent. In addition, Times Mirror will incur additional payroll costs aggregating millions of dollars. Finally, Times Mirror is committed, under the existing Street Sale and Home Delivery Dealer Agreements, to pay its existing dealers well over $3 million upon the termination of their contracts.

38. Times Mirror has determined that the service its dealers, including plaintiffs, once performed can be better provided by delivery agents in the case of home delivery and by its own employees in the case of street sale deliveries and that its interest, in the future, will be less effectively represented by plaintiffs, whose interests are now clearly adverse to its own, or by a combination of plaintiffs and Times Mirror's own employees. Times Mirror believes it will suffer a loss of goodwill if it is required to continue plaintiffs as independent dealers for The Times after January 1 and January 5, 1976. Moreover, should Times Mirror prevail upon the merits, it will have unnecessarily disrupted its new sales organization, decreasing its effectiveness.

39. Plaintiffs have failed to demonstrate any specific intent on the part of Times Mirror to monopolize or to attempt to monopolize or to set prices or exclude competition in any portion of the market without legitimate business purpose, nor have plaintiffs demonstrated specific intent accompanied by predatory conduct directed toward accomplishing any unlawful purpose, nor have plaintiffs identified or offered any proof to show that Times Mirror conspired with any other person or entity to accomplish any unlawful purpose.

40. Plaintiffs have failed to demonstrate by any evidence whatsoever that Times Mirror has monopolized, attempted to monopolize or conspired to monoplize any portion of the market.

41. Plaintiffs have clearly indicated that, after January 1 and January 5, 1976, they wish to continue as independent dealers for The Times, but they desire the freedom to raise the price of The Times to whatever level they, in their own discretion, deem appropriate. The granting to plaintiffs of this right would not be in the public interest, which is best served by providing quality goods at the lowest possible price.

CONCLUSIONS OF LAW

1. The question of whether or not a preliminary injunction should be issued depends upon four factors. Plaintiffs have the burden of showing by a preponderance of the evidence each of the following:

a. That they have a strong likelihood or a reasonable certainty of succeeding in obtaining a permanent injunction prohibiting the very action they are attacking in their Motion for Preliminary Injunction;

b. That they will suffer irreparable injury or, put another way, that they cannot be compensated by money damages;

c. That the balance of the hardships tips in their favor; and

d. That the public interest would be served by issuing the preliminary injunction, or defeated by the failure to enter it.

2. Plaintiffs have not sustained their burden of proving by a preponderance of the evidence that they have any likelihood or reasonable certainty of obtaining a permanent injunction affecting the current distribution systems of The Times, or preventing Times Mirror from terminating those systems and from instituting new methods of distributing The Times after January 1 and January 5, 1976.

3. The maximum pricing provisions of the Dealer Agreements are lawful under the Fair Trade laws which are still in effect and will be in effect until January 1, 1976. Moreover, the current systems do not involve unlawful territorial or customer restraints, nor lawful discrimination in setting the rates which dealers pay for The Times. The current distribution systems of The Times are lawful under the antitrust laws.

4. Times Mirror decided unilaterally to terminate the current systems and to institute new methods of distributing The Times after January 1 and January 5, 1976. This decision was made for good and valid business reasons, and was not intended as retaliation against plaintiffs for participating in antitrust litigation against Times Mirror. Times Mirror did not discriminate in any way against plaintiffs in effecting the terminations, or in offering plaintiffs the opportunity to participate in the new distribution systems. The termination of the existing Home Delivery and Street Sale Dealer Agreements is lawful under the antitrust laws.

5. The new systems for distributing The Times, which provide for the sale of the paper directly to consumers and the using of independent delivery against only to delivery the home editions, are lawful under the antitrust laws.

6. Plaintiffs have not been able to demonstrate that their remedy at law by way of money damages is not adequate. The damages, if any, suffered by plaintiffs can be fixed and measured with reasonable certainty at the point in time that their Dealer Agreements were terminated. Plaintiffs will have an opportunity at the trial on the merits to show that they have suffered compensable injury. Any injury being compensable by money damages, equitable relief is not justified.

7. Plaintiffs' application for a preliminary injunction must also be denied because the balance of hardship tips decidedly in favor of Times Mirror. Plaintiffs will be paid everything to which they are entitled under the Dealer Agreements upon their termination. On the other hand, Times Mirror has spent or committed itself to spend millions of dollars to implement the new distribution systems, which investment will be wasted if Times Mirror is not allowed to go forward with its plans. Finally, while the hardships to plaintiffs are primarily financial, compensable in money damages, Times Mirror has demonstrated hardship of a more intangible nature, which will result from being required to resume use of plaintiffs' services pending trial.

8. The public interest would not be served by the granting of a preliminary injunction. A publisher like Times Mirror has the right to engage in any type of distribution it chooses so long as it does not violate the antitrust laws, and may terminate its current system of distribution in order to convert to a new form of distribution. Times Mirror has demonstrated that it has legitimate business reasons for converting to a new plan for distributing The Times after January 1 and January 5, 1976, and plaintiffs have failed to demonstrate that the new plan would violate the law in any way. So long as Times Mirror does not violate the law, the public interest is best served by allowing it to change its method of distribution in any way it desires. It would not be in the public interest for the Court to become involved in the operation of the business of Times Mirror. Therefore, the public interest is best served by allowing Times Mirror to go forward with the new systems.

EXHIBIT "A"

EXHIBIT "B"

EXHIBIT "C"

EXHIBIT "D"

Attorneys for THE TIMES MIRROR COMPANY

ORDER DENYING PRELIMINARY INJUNCTION

The motion of plaintiffs for a preliminary injunction came on for hearing at 10:00 a. m. on Monday, November 24, 1975, before the above-entitled Court, the Honorable A. Andrew Hauk, United States District Court Judge, presiding.

The law offices of G. Joseph Bertain, Jr., by Timothy H. Fine, Esq., and Simon & Sheridan by James J. Coyle, Esq. and Donald B. Bachrach, Esq. appeared for plaintiffs. Gibson, Dunn & Crutcher, by John J. Hanson, Esq. and Donald L. Zachary, Esq., and William A. Niese, Esq. appeared for defendants, The Times Mirror Company.

Having considered the pleadings, affidavits and memoranda in support of and in opposition to the motion, and having heard the testimony of eight (8) witnesses, and having considered the arguments in support of and in opposition to the motion, and having made Findings of Fact and Conclusions of Law,

It is ordered that the motion of plaintiffs for a preliminary injunction be, and hereby is, denied.