c39:Nos. 13338, 13421

SCHNACKENBERG, Circuit Judge
(concurring).
Judge CASTLE’s opinion recognizes that it was essential that defendant Dairy Maid Products Cooperative allege in its amended second counterclaim an injury to its business or property, and the opinion refers to that defendant’s allegation that it was compelled either to cease production with consequent loss of sales of its product, pay tribute, or incur the financial burden of expenses incident to the defense of litigation, and holds that, to place a person in such a situation is an injury to his business, which, under § 4 of the Clayton Act, gives rise to a liability to respond in three-fold damages.
No citation of any statutory authority has been made to show that the financial burden of the expenses of defense of litigation has been treated by the courts as damages to be recovered, other than court costs and attorneys’ fees. Moreover, the common-law rule is well-settled that, with the exceptions of costs and attorneys’ fees, there can, as a general rule, be no recovery as damages of the costs and expenses of litigation. This rule has been repeatedly recognized in the federal courts, 25 C.J.S. Damages § 50, p. 532. Actually the only matters pleaded in the counterclaim to show injury are this defendant’s expenses in defending itself in this case brought by plaintiff and in investigating plaintiff’s patent. These do not appear to me to constitute such injury in business or property sustained by defendant as will support the counterclaim charge of an antitrust violation.
Despite this impression, I do not feel willing to dissent from that part of Judge Castle’s opinion. The law on this subject, as on any other, is not static. In view of the treatment of antitrust cases by the United States Supreme Court, and with a realization that this precise narrow question has not been presented to it, I concur in the opinion of Judge Castle, believing that no injustice will be done the litigants by refusing to affirm, on this narrow ground of injury, the dismissal of the counterclaim of Dairy Maid Products Cooperative.

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