Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 1 of 18
`
`Bruce D. Sokler (admitted pro hac vice)
`Robert G. Kidwell (admitted pro hac vice)
`bdsokler@mintz.com
`rgkidwell@mintz.com
`MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO P.C.
`701 Pennsylvania Avenue NW, Suite 900
`Washington, DC 20004
`Telephone: (202) 434-7300
`Facsimile: (202) 434-7400
`
`Evan S. Nadel (SBN 213230)
`enadel@mintz.com
`MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO P.C.
`44 Montgomery Street, 36th Floor
`San Francisco, California 94104
`Telephone: 415-432-6000
`Facsimile: 415-432-6001
`
`Attorneys for Defendant
`AVX CORPORATION
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`IN RE CAPACITORS ANTITRUST
`Lead Case No. 3:17-md-02801-JD
`LITIGATION
`
`Including Consolidated Cases:
`Case No. 14-cv-03264-JD
`Case No. 17-cv-03472-JD
`Case No. 17-cv-07047-JD
`
`This Document Relates to:
`DIRECT PURCHASER CLASS AND
`FLEXTRONICS INTERNATIONAL USA,
`INC’S COMBINED ACTION, Case No. 14-
`cv-03264-JD
`AASI BENEFICIARIES’ TRUST, BY AND
`THROUGH KENNETH A. WELT,
`LIQUIDATING TRUSTEE V. AVX CORP.
`ET AL., Case No. 17-cv-03472-JD
`BENCHMARK ELECTRONICS, INC. ET
`AL. V. AVX CORP. ET AL., Case No. 17-cv-
`7047-JD
`
`DEFENDANT AVX CORPORATION’S
`REPLY MEMORANDUM OF LAW IN
`SUPPORT OF ITS MOTION FOR
`SUMMARY JUDGMENT
`
`Date: TBD
`Time: TBD
`Judge: Hon. James Donato
`Location: Courtroom 11
`
`ORAL ARGUMENT REQUESTED
`
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`PUBLIC VERSION
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`Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 2 of 18
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`I.
`
`II.
`
`III.
`
`IV.
`
`TABLE OF CONTENTS
`
`Page(s)
`INTRODUCTION ...............................................................................................................1
`
`PLAINTIFFS CANNOT AVOID THE BINDING NINTH CIRCUIT
`PRECEDENT OF CITRIC ACID. .......................................................................................6
`
`A.
`
`Every Pleading Defendant Has Sworn That AVX Was Not A Member of
`the Alleged Cartel. ...................................................................................................6
`
`i.
`
`ii.
`
`Testimony, Guilty Pleas, and Sworn Statements. ........................................6
`
`Circumstantial Evidence. .............................................................................8
`
`a.
`
`b.
`
`Trade Group Membership. ...............................................................8
`
`Discussions with Competitors..........................................................9
`
`DR. SNAIL’S ANALYSIS IS UNREBUTTED. ...............................................................10
`
`THE DOCUMENTARY EVIDENCE CITED BY PLAINTIFFS IS RIFE WITH
`MISCHARACTERIZATION AND BORDERLINE FALSEHOODS THAT THE
`COURT SHOULD IGNORE. ............................................................................................13
`
`A.
`
`B.
`
`. ........................13
`
`. ...........................14
`
`V.
`
`AVX IS SEPARATELY ENTITLED TO SUMMARY JUDGMENT ON AASI’S
`CLAIMS. ...........................................................................................................................15
`
`VI.
`
`CONCLUSION. .................................................................................................................15
`
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`Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 3 of 18
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`7-UP Bottling Co. v. Archer Daniels Midland Co. (In re Citric Acid Litig.)
`(Citric Acid II), 191 F.3d 1090 (9th Cir. 1999) ............................................................... passim
`
`Barnes v. Aden Mayfair, Inc.,
`759 F.2d 676 (9th Cir. 1985) .....................................................................................................7
`
`In re Baby Food Antitrust Litig.,
`166 F.3d 112 (3d Cir. 1998).......................................................................................5, 9, 13, 15
`
`In re Citric Acid Litig. (Citric Acid I),
`996 F. Supp. 951 (N.D. Cal. 1998) .................................................................................. passim
`
`In re Graphics Processing Units Antitrust Litig.,
`527 F. Supp. 2d 1011 (N.D. Cal. 2007) .....................................................................................8
`
`Matsushita Elec. Indus. Co v. Zenith Radio Corp.,
`475 U.S. 574 (1986) .....................................................................................................10, 13, 15
`
`Northwest Publ’ns, Inc. v. Crumb,
`752 F. 2d 473 (9th Cir. 1985) ..................................................................................................10
`
`United States v. United States Gypsum Co.,
`438 U.S. 422 (1978) .................................................................................................................13
`
`Statutes
`
`Fed. R. Civ. P. 56 .............................................................................................................................1
`
`-ii-
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`Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 4 of 18
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`I.
`
`INTRODUCTION1
`
`Plaintiffs (both DPPs and DAPs) work hard to downplay the relevance of Citric Acid as
`they back up their truck of extraneous documents to the Court’s doorstep. But their ability to
`quote documents about AVX doing something other than joining the Asian cartel alleged in this
`case does not create a material question of fact about whether AVX joined the Asian cartel
`alleged in this case.
`There is one central question before the Court on this motion: looking at the evidence as a
`whole, is there substantial probative evidence that AVX entered into a conscious agreement to
`join the Asian cartel to which ELNA, Hitachi, Holy Stone, Matsuo, NCC, NEC Tokin, Nichicon,
`
`and Rubycon have pleaded guilty, and for which Panasonic/Sanyo has sought ACPERA
`leniency?2 Under the analysis outlined in Citric Acid I and II, and in light of Plaintiffs’
`Oppositions, the four facts outlined by AVX in its Motion continue to show that the answer is
`no:
`(1) FACT: Plaintiffs concede that AVX did not attend the cartel meetings, their experts
`agree that AVX did not attend the cartel meetings, contemporaneous meeting minutes
`expressly state that AVX was not part of the cartel, the minute-keeper testified that AVX
`was not part of the cartel, and there is no documentary or testimonial evidence that AVX
`otherwise joined the cartel.
`
`PLAINTIFFS’ REBUTTAL: Plaintiffs argue that these facts should not be important to
`the Court, but they do not offer evidence to rebut these facts in their Oppositions. These
`facts are now undisputed for purposes of summary judgment, and the Court can weigh the
`
`1 Defendant AVX Corporation (“AVX”) submits this Reply Memorandum of Law in further support of its Motion for
`Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Defendant AVX Corporation’s Motion for
`Summary Judgment Against All Plaintiffs; Dkt 651 (the “AVX Motion”). This single Reply responds to both DPPs’
`and DAPs’ Oppositions to the AVX Motion. Direct Purchaser Class’s Opposition to Defendant AVX Corporation’s
`Motion for Summary Judgment, Dkt. 807 (“DPP Opp.”); Direct Action Plaintiffs’ Opposition to Defendant AVX
`Corporation’s Motion for Summary Judgment Against All Plaintiffs, Dkt. 759 (“DAP Opp.”). Docket references refer
`to the docket number in the main MDL docket, 3:17-md-02801-JD.
`2 AVX Motion, at 8-9.
`
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`Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 5 of 18
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`facts as appropriate under the applicable precedents—including Citric Acid I and II.
`
`(2) FACT: All of the pleading cartel participants as well as the ACPERA applicant
`Panasonic/Sanyo have sworn that AVX had no role in the cartel.
`
`PLAINTIFFS’ REBUTTAL: Plaintiffs argue that the pleading Defendants’ statements
`and testimony should not be important to the Court, but they do not offer evidence to rebut
`the fact of the exonerations in their Oppositions. The fact that all admitted cartel members
`have exonerated AVX is now undisputed for purposes of summary judgment, and the
`Court can weigh this fact as appropriate under the applicable precedents—including Citric
`Acid I and II.
`
`(3) FACT: AVX has consistently behaved as an independent, rational competitor.
`
`PLAINTIFFS’ REBUTTAL: DAPs do not respond to AVX’s Third Fact; this fact is
`therefore undisputed with respect to DAPs. DPPs respond (DPP Opp., at 18-19) by
`reference to two pages of their expert Dr. Singer’s report in which he summarizes a
`discussion from Modern Industrial Organization about business incentives in the abstract,
`and does not mention AVX or anything having to do with Plaintiffs’ claims against AVX.
`It is not evidence. The fact that AVX has consistently behaved as an independent, rational
`competitor is now undisputed for purposes of summary judgment, and the Court can
`weigh the facts as appropriate under the applicable precedents—including Citric Acid I
`and II.
`
`(4) FACT: None of the various “bilateral meetings” that Plaintiffs offer as circumstantial
`evidence of AVX’s involvement in the Asian cartel provide evidence that AVX joined the
`cartel—and it is an unrebutted economic fact in this case that none of these “bilateral
`meetings” had any effect on AVX’s pricing.
` PLAINTIFFS’ REBUTTAL: Plaintiffs offer a laundry list of citations to documents that
`they contend show a relationship between AVX and the alleged cartel. Those citations are
`addressed below, and they are not evidence that AVX joined the alleged cartel. With
`
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`regard to AVX’s economic analysis, Plaintiffs offer lawyerly arguments about why the
`analysis should not matter, and they refer to other sections of their own experts’ reports as
`“evidence,” but their experts themselves stated that they did not respond to or rebut Dr.
`Snail’s analysis, and Plaintiffs’ counsel cannot testify as economists or sponsor other,
`different sections of their expert’s reports for purposes that their experts expressly
`disclaimed. It is therefore an unrebutted economic fact that none of these “bilateral
`meetings” had any identifiable effect on AVX’s pricing.
`Plaintiffs’ case is therefore 100% dependent on their characterization of the “bilateral
`meetings” that they recount between AVX and various industry participants; but none of these
`interactions, nor all of them taken as a whole, are of a different type than those attributed to
`Cargill in Citric Acid, and they do not support denial of AVX’s motion for summary judgment.
`Plaintiffs downplay those parts of the Citric Acid analysis that they do not like, but they
`cannot avoid its precedential authority. Most notably, Plaintiffs argue that the plea agreements,
`factual proffers, testimony, and sworn statements of the pleading cartel members exonerating
`AVX in this case should be ignored by the Court; but both Citric Acid I and II held precisely to
`the contrary. See In re Citric Acid Litig. (Citric Acid I), 996 F. Supp. 951, 955 (N.D. Cal. 1998)
`(finding that conspirator’s testimony was “convincing direct testimonial evidence that [the
`defendant] was not involved in the conspiracy.”); 7-UP Bottling Co. v. Archer Daniels Midland
`Co. (In re Citric Acid Litig.) (Citric Acid II), 191 F.3d 1090, 1106 (9th Cir. 1999) (“We note that
`all four major citric acid manufacturers admitted to conspiring to fix prices but none identified
`Cargill as a co-conspirator.”).
`AVX has presented the same “convincing direct testimonial evidence” here. All of the
`admitted conspirators have stood before this Court to plead guilty, have provided sworn
`statements that AVX was not a member of the cartel, and/or have made factual proffers to
`Plaintiffs and the Department of Justice admitting to their participation in the cartel—and they all
`unequivocally exonerate AVX. Under Citric Acid, it is Plaintiffs’ burden to rebut this evidence
`with admissible, relevant, probative evidence to the contrary—and they have not done so.
`
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`The logic of Plaintiffs’ claim against AVX in light of this evidence is straightforward:
`even though AVX did not participate in the cartel meetings, it must have joined the cartel
`through one or more of what Plaintiffs refer to as “bilateral meetings” with cartel members. And
`as AVX anticipated in its Motion,3 having sifted through basically all of AVX’s business
`documents over a 13-year period, Plaintiffs have identified all of the times that someone at AVX
`interacted with someone else in the industry, and they cite those documents by the pound in their
`oppositions. As AVX also anticipated, Plaintiffs are apparently hoping that “quantity will
`substitute for quality,” and that “voluminous but weak circumstantial evidence” will be sufficient
`to survive summary judgment. Citric Acid I, 996 F. Supp. at 956. But none of the materials
`cited by Plaintiffs show AVX making a conscious decision to join the Asian cartel that is alleged
`in this case.
`An important feature of Plaintiffs’ argument about “bilateral meetings” is that it is easy to
`test: one day AVX was not pricing with the cartel (and we know from the cartel’s own
`minutes—which Plaintiffs offer as reliable proof of liability for other Defendants, and therefore
`cannot disclaim—that AVX was not in the cartel as of January 20034), then AVX joined the
`conspiracy through one or more of these bilateral meetings, and then AVX began pricing with
`the cartel. If it exists, that change can be easily identified, no arguments about mis-specified
`regressions or quadratic time variables or other econometric hocus-pocus necessary. AVX’s
`expert economist Dr. Timothy Snail
`
`
`
`
`
` Plaintiffs’ experts did not rebut any
`of these analyses. And Plaintiffs offered no evidence in rebuttal of these analyses in their
`Oppositions.
`Against these facts, Plaintiffs describe the Court’s role here with a tautology that can only
`
`3 AVX Motion, at 8.
`4 AVX Motion, at 4.
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`ever have one solution: summary judgment must always be denied in modern litigation. There
`can never be summary judgment in a case that involves the caprices of modern E-discovery if the
`Plaintiffs are correct that all they need do is list more documents than the Court has time to read,
`make inaccurate characterizations of those documents, and then assert that “there’s plenty of
`evidence in that pile.” And if the Court deigns to question whether those documents actually
`amount to what the Plaintiffs allege, they argue, then the Court is usurping the jury’s role. But
`the Ninth Circuit in Citric Acid II made clear that the Court’s role is to undertake the same
`analysis that AVX is offering the Court today. AVX does not ask the Court to draw any
`inferences in its favor, or to “usurp the jury’s role by weighing the evidence.”5 Instead, AVX
`asks the court to simply look at the evidence before it.6 There is no evidence showing AVX
`consciously joining the conspiracy at issue here. At most, the documents show AVX employees
`attempting to gain a better view of the capacitors market, and at times “blowing smoke” in
`conversations with industry contemporaries. Whatever these communications might be, they are
`not evidence of AVX joining the Asian cartel that is the subject of this case.7
`Finally, as AVX described in its Motion, Plaintiff AASI, by its expert’s own admission,
`bought no products from AVX and claim no damages from AVX in this case.8 AVX moved for
`summary judgment against AASI on this basis, and AASI did not respond. As such, summary
`judgment should be entered for AVX on all of AASI’s claims.
`
`5 DPP Opp., at 13.
`6 This task is inevitable and unavoidable given the Rule 403 morass that will have to be addressed prior to or during
`trial. AVX objects to the admissibility of many of the documents upon which Plaintiffs will rely—many of which
`have already been cited in their papers—if this case goes to trial. AVX reserves and does not waive any and all
`objections not raised in these papers, to spare the Court from dueling evidentiary motions along with the mountain of
`summary judgment and Daubert briefs currently before it.
`7 See In re Baby Food Antitrust Litig., 166 F.3d 112, 126 (3d Cir. 1998) (“Communications between competitors do
`not permit an inference of an agreement to fix prices unless ‘those communications rise to the level of an agreement,
`tacit or otherwise.’”) (quoting Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1013 (3d Cir. 1994)).
`8 AVX Motion at 3.
`
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`II.
`
`PLAINTIFFS CANNOT AVOID THE BINDING NINTH CIRCUIT PRECEDENT
`OF CITRIC ACID.
`
`Both DPPs and DAPs attack AVX’s reliance on Citric Acid. To be clear, AVX is not
`attempting to “reduce the appropriately flexible analysis of proving conspiracy to a rigid and
`forgiving four-factor ‘test’.” DPP Opp. at 1. Rather, AVX has explained that the facts in this
`case are on all fours with Citric Acid, and that summary judgment should be granted for AVX in
`this case as it was (and as was affirmed by the Ninth Circuit) for Cargill in Citric Acid.
`It is ironic that while relying upon Continental Ore elsewhere,9 Plaintiffs pick one-by-one
`at the types of evidence considered in Citric Acid (which interprets Continental Ore) to argue
`that each such piece of evidence would be insufficient, on its own, to justify summary
`judgment.10 But Plaintiffs miss the point: AVX’s point is that all of the types of evidence
`considered in Citric Acid are present here, and when taken as a whole, the evidence requires
`summary judgment for AVX.
`A.
`Every Pleading Defendant Has Sworn That AVX Was Not A Member of the
`Alleged Cartel.
`
`i.
`
`Testimony, Guilty Pleas, and Sworn Statements.
`
`As in Citric Acid, every pleading defendant in this case has sworn unequivocally that
`AVX was not a member of the cartel at issue in this case.11 Plaintiffs assert that the Court should
`ignore this direct evidence that AVX did not actually participate in the conspiracy,12 and that it is
`self-serving.13 But binding precedent holds that Plaintiffs are wrong. Under Citric Acid this
`evidence is relevant, admissible, and exculpatory absent a contradictory showing of facts by
`Plaintiffs.
`
`9 See DPP Opp., at 1-2; DAP Opp., at 13, 22.
`10 DPP Opp., at 15-21; DAP Opp., at 21-25.
`11 AVX Motion, at 5-6.
`12 DPP Opp., at 16-18; DAP Opp., at 23-24.
`13 See e.g., DPP Opp., at 17 (“If Defendants in an antitrust action could be exonerated based solely on responses to
`self-serving Requests for Admission executed by convicted felons, it is unlikely that any antitrust case would ever
`survive.”).
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`In Citric Acid I, the court relied upon the deposition testimony of an admitted conspirator
`as persuasive evidence that an unindicted defendant did not participate in the conspiracy. 996 F.
`Supp. at 955 (“Cargill offers convincing direct testimonial evidence that it was not involved in
`the conspiracy. Most persuasive is the testimony of Hans Hartman, the President of H&R
`GmbH, who pled guilty to being a member of the conspiracy.”). In Citric Acid II, the Ninth
`Circuit specifically relied upon the fact that “all four major citric acid manufacturers admitted to
`conspiring to fix prices but none identified Cargill as a co-conspirator.” Citric Acid II, 191 F.3d
`at 1107; accord Barnes v. Aden Mayfair, Inc., 759 F.2d 676, 684 (9th Cir. 1985) (affirming
`summary judgment where “the dairies have admitted their participation in a conspiracy, while
`simultaneously exonerating [the moving defendant] with nothing to gain for their exculpatory
`statements.”).14 The record here concerning AVX is no different.15
`Plaintiffs also discount the plea agreements that the cartel members entered into before
`this Court. See DAP Opp., at 23-24. Here, eight defendants were indicted by DOJ and pleaded
`guilty in this Court to participating in the cartel.16 Pursuant to their plea agreements, they
`admitted their own involvement and agreed to name their co-conspirators. None of these
`pleading cartel members had any reason to shield AVX and every reason to be truthful. Not only
`would false statements void any plea agreements, they would constitute independent federal
`
` gives rise to an inference
`14 DAPs also assert that
`that
` conspired with AVX. DAP Opp., at 25 n.24. Not so. In Citric Acid I, plaintiffs argued as they
`do here that conspirators who invoked their Fifth Amended rights “would have exonerated Cargill if they could have
`done so truthfully” and thus did not exonerate Cargill. 996 F. Supp. at 960. The court rejected this argument, calling
`it “pure speculation” and “lack[ing] logical support.” Id. And so it is here.
`15 AVX Motion, at 5-6.
`16 See United States v. ELNA Co. Ltd., No. 3:16-cr-00365-EMC, Dkt. No. 40 (N.D. Cal. Oct. 12, 2017) (plea
`agreement of ELNA); United States v. Hitachi Chemical Co., Ltd., No. CR-16-0180-JD, Dkt. No. 22 (N.D. Cal. Jun.
`10, 2016) (plea agreement of Hitachi); United States v. Holy Stone Holdings Co., Ltd., No. 4:16-cr-00366-JD, Dkt.
`No. 34 (N.D. Cal. Oct. 12, 2017) (plea agreement of Holy Stone); United States v. Matsuo Electric Co. Ltd., No. 4:17-
`cr-00073-JD, Dkt. No. 35 (N.D. Cal. Oct. 26, 2017); United States v. Nichicon Corp., No. 4:17-cr-00368-JD-1, Dkt.
`No. 19 (N.D. Cal. Nov. 9, 2017) (plea agreement of Nichicon); United States v. Rubycon Corp., No. 4:16-cr-00367-
`JD, Dkt. No. 17 (N.D. Cal. Sept. 7, 2017) (minute entry of hearing wherein Rubycon pled guilty); United States v.
`NEC TOKIN Corporation, No. 3:15-cr-00426-JD, Dkt. 9-1 (N.D. Cal. Jan. 1, 2016) (NEC TOKIN plea agreement);
`United States v. Nippon Chemi-Con Corporation, No. 4:17-cr-000540-JD, Dkt. No. 54 (N.D. Cal. May 11, 2018)
`(Nippon Chemi-Con plea agreement).
`
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`crimes. Yet not a single one identified AVX as a cartel participant. As in Citric Acid, Plaintiffs
`must clearly rebut this evidence in order to avoid summary judgment.
`ii.
`Circumstantial Evidence.
`
`The Citric Acid courts also analyzed the circumstantial evidence against Cargill,
`including the very types of evidence Plaintiffs assert against AVX.17 The district court in Citric
`Acid I found these types of circumstantial evidence to be insufficient for plaintiffs to survive
`summary judgment, which the Ninth Circuit affirmed. The instant case is no different.
`a.
`Trade Group Membership.
`
`Plaintiffs point to multiple documents where AVX employees
`
`
`
`
` DPP Opp. at 10. But these
`documents are not evidence of AVX joining a conspiracy—they are evidence of rational, legal
`business conduct and do not demonstrate cartel participation any more than would evidence that
`a lawyer attended an ABA conference.18 Citric Acid II explained at length that participating in
`industry trade associations—including associations that collect members’ production and sales
`figures in order to produce and disseminate market statistics—is not evidence of participation in
`a cartel even if some of the other members of that association were, in fact, participating in a
`cartel.19
`
`17 Notably, the court in Citric Acid I held that the precise type of evidence relied upon by Plaintiffs was circumstantial,
`not direct as suggested Plaintiffs. 996 F. Supp. at 958.
`18 AVX also objects to DPPs’ assertion that
`provide no evidence to support its baseless assertion that AVX
`
` DPPs
`
`
`
` DPP Opp., at 3 n.4. To support this proposition, DPPs cite to the expert report of
` No references cited relate to
`, nor do they provide
`AVX in any way, they do not provide evidence that AVX entered into any agreements
`a scintilla of evidence that any alleged agreement affected the United States. This statement by DPPs is an unfounded
`and intellectually questionable attempt to avoid summary judgment.
`19 Citric Acid II, 191 F.3d at 1097-1100. See also In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d
`1011, 1023 (N.D. Cal. 2007) (“[E]ven where some competitors have admitted to meeting to fix prices at or near trade
`shows or conferences, it is not reasonable to infer that another competitor in attendance at the same meeting had done
`likewise.”).
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`b.
`
`Discussions with Competitors.
`
`As predicted, Plaintiffs offer the court a pile of unconnected documents scattered
`throughout the class period showing AVX employees gathering information (legal), speaking
`with employees of competitors (legal), or “blowing smoke” (legal but probably inadvisable).
`And as AVX previewed in its own Motion, AVX
`
`
`
`20
`
`But none of these documents are evidence that AVX took any steps to join the Asian cartel that
`is alleged in this case.
`The court in Citric Acid I reviewed a similar collection of documents before granting
`summary judgment. Analyzing these similar documents, the court held that “[t]hese meetings
`are circumstantial evidence that is weak at best; they do not support a rational inference that
`Cargill was a member of the conspiracy.” 996 F. Supp., at 958.21
`Here, the evidence against AVX is also weak at best, as evidenced by Plaintiffs’ need to
`mischaracterize the documents in their papers—which is itself proof that Plaintiffs’ only hope
`with these documents is to attempt to mislead jurors into making prejudicial misjudgment.22 As
`only one example among many, Plaintiffs cite a document to say that
`
`
`
`
` DAP Opp., at 11. Plaintiffs provide no other
`context, and obviously hope that the Court will infer malevolent intent on the part of
`
` (and that the Court won’t actually look at the document)—otherwise why cite the
`document?
`But Plaintiffs deceive the Court with their quotation, which reads in full:
`
`
`
`
`
`20 AVX Motion, at 11-13.
`21 See also Baby Food, 166 F.3d at 126 (“[C]ommunications between competitors do not permit an inference of an
`agreement to fix prices unless ‘those communications rise to the level of an agreement, tacit or otherwise.’”).
`22 See infra Section IV for greater discussion of Plaintiffs’ mischaracterizations of documents which should not be
`relied upon by the court.
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`Case 3:14-cv-03264-JD Document 2423 Filed 08/15/19 Page 13 of 18
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`
`
`
`
`
`
` Declaration of Shawn N. Skolky in Support of
`AVX Corporation’s Reply to its Motion for Summary Judgment (“Skolky Reply Decl.”), Ex. 1,
`. As the Court is already aware, the Dodd-Frank Act of 2010
`imposed broad new requirements—including SEC disclosure requirements—on manufacturers
`that work with rare earth minerals (such as tantalum). So the question becomes: under what
`legal theory could this document serve as relevant, non-prejudicial evidence that AVX joined the
`Asian conspiracy? There is none. This document, and the others cited by Plaintiffs, provide no
`evidence that AVX joined the Asian conspiracy that is the subject of this case. Matsushita Elec.
`Indus. Co v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (plaintiff “must do more than simply
`show that there is some metaphysical doubt as to the material facts.”)
`III.
`DR. SNAIL’S ANALYSIS IS UNREBUTTED.
`
`Causation is an affirmative element that antitrust plaintiffs must prove. Northwest
`Publ’ns, Inc. v. Crumb, 752 F. 2d 473, 476 (9th Cir. 1985) (“Causal antitrust injury is an
`essential element of any remedy under the Sherman Act.”) In order to demonstrate causation,
`Plaintiffs must show “with reasonable probability some causal connection between the antitrust
`violation and [plaintiff’s alleged injury].” Id.
`As previewed above, causation is an easy test for Plaintiffs’ case against AVX: one day
`AVX was not pricing with the cartel (and we know from the cartel’s own minutes—which
`Plaintiffs offer as reliable proof of liability for other Defendants, and therefore cannot disclaim—
`that AVX was not in the cartel as of January 200323), then AVX joined the conspiracy through
`one or more of these bilateral meetings, and then AVX began pricing with the cartel. If it exists,
`that change can be easily identified, no arguments about mis-specified regressions or quadratic
`
`23 AVX Motion, at 4.
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`time variables or other econometric hocus-pocus necessary. Dr. Snail tested this theory simply
`and directly:
`
`
`
`
`
`
`
`
`
`Plaintiffs’ experts did not rebut Dr. Snail’s analysis. Neither DPPs’ economist Dr. Hal
`Singer nor DAPs’ economist Dr. Leslie Marx disputed the results of Dr. Snail’s before-and-after
`price studies in their reports or depositions.
`
`
`
`
`
`
`
`
` are therefore unrebutted for purposes of this Motion.
`Plaintiffs’ counsel now argue in their oppositions that “AVX’s attempt to link any
`particular document to observable pricing changes in an overall economic analysis of a
`conspiracy is based on an unreliable and improper methodology.” DPP Opp. at 19. They also
`argue that perhaps Dr. Snail should have used an unspecified control variable of some sort—
`although they don’t say what that variable should be, or for what it would control. Id. at 18, 20.
`But Plaintiffs’ counsel are not qualified to provide in a legal brief the economic testimony that
`their experts would not give in their reports and depositions; and in any case what Plaintiffs’
`counsel argue is nonsense. 26 Notably, Plaintiffs filed six Daubert motions against other experts
`
`24 See Skolky Declaration In Support of AVX’s Motion for Summary Judgment (“Initial Skolky Decl.”) (Dkt. 651-2),
`Ex. 4, at 259:10-21 (
`
`
`) (Dkt. 651-6).
`
`25 See Initial Skolky Decl., Ex. 3, at 205:13-17 (
`
`651-5).
`26 DAPs’ separate argument regarding
`a red herring. See DAP Opp., at 19-20. First, AVX objects to the inclusion as evidence of any of
`
`
`) (Dkt.
`
` is similarly
`
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`in this case,27 but they opted not to file one regarding Dr. Snail.
`Dr. Snail agreed with DPPs that he is
`28 Dr. Snail’s analysis was one of interpreting data based on
`economic analysis. His unrebutted analysis shows that irrespective of those documents that
`show uncouth and sometimes stupid behavior, AVX’s pricing shows no evidence of overcharges
`to any plaintiff at any point in time.
`As one exquisitely simple example,