c30:Nos. 13508, 13509

McLAUGHLIN, Circuit Judge
(dissenting) .
These are antitrust actions by motion picture theatre operators against film distribution corporations. The question involved is whether they were settled.
The district judge found that words in the form of release submitted by the defendants are “considered objectionable by plaintiffs”. The court goes on to hold that because the defendants are willing to accept a release without those words “ * * * there is no need to decide what is an appropriate release as contemplated by the oral settlement agreement.”
The objectionable words in the submitted release are:
“3. Main Line Theatres, Inc. agrees that its present availability and the present procedure pursuant to which it licenses motion pictures is reasonable, * *
That language if it had been accepted by plaintiffs would have cut the heart out of their motion picture theatre operation. It was because the plaintiffs considered defendants’ “procedure” in licensing motion pictures unreasonable to “its present availability” that they started these suits. The claim was for the damage sustained by plaintiffs arising out of the unreasonable conduct and actions of the defendants. That was the claim that plaintiffs agreed to settle. But they never agreed in addition to that that they would wipe out their theatres’ right to function in the future without (according to their contention) being hamstrung by the unreasonable procedures of defendants. However, the latter at the time of the so-called oral agreement had every intention of including that important plaintiffs’ claim in their settlement of the cases. It was a vital part of the release they drew and presented to the plaintiffs for execution. It was not until the plaintiffs persisted in refusing to accept the defense version of release that the defendants offered to waive the particular clause. The final position of the defendants was just that, namely, they waived what to them had been at the very least a substantial element of the settlement. There was and is no contention on their part that they had been trying to simply add the clause if possible or anything of that kind. The release sent plaintiffs by them was their idea of the contemplated settlement. It was never acquiesced in by plaintiffs. There was therefore no meeting of minds between the parties; no final settlement agreement. Later on, after plaintiffs had rejected the defense proposal as set out in the release, it was too late for the defendants to then attempt to waive their “reasonable procedure” language. At that stage defendants were in fact submitting a new offer of settlement. Plaintiffs declined this as they were entitled to do.
In the circumstances the trial court could not validly hold that the plaintiffs must accept that new proposition. As I see it the order of the district court forcing plaintiffs into settlement should be set aside and the cases restored to the trial list for disposal of the antitrust claims on their merits.

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