Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp.

SLOVITER, Chief Judge,

concurring in part and dissenting in part.

As the majority opinion recognizes, this appeal and cross-appeal raise several difficult and previously unaddressed issues about the calculation of settlement offsets in an antitrust case. Although the court is fractured on several of the issues raised by the appeal and cross-appeal, I note that we are unanimous on many of the issues resolved by Judge Seitz’s opinion. I join all of that opinion except Part II B.2.a holding that all of the $1.8 million Second Mitsubishi Settlement was properly included in the $2,025,000 which the district court offset against the trebled jury verdict.1 I also join in Part I of Judge Greenberg’s separate opinion representing the majority view on the issue of the effect of the assignment of the purchase contract by Gulfstream III.

I.

Central to my view of the effect of the two settlement agreements Gulfstream III entered into with Mitsubishi are the following facts from the record. When Gulfstream III entered into the First Mitsubishi Settlement, dated August 6, 1985, settling its antitrust claims against Mitsubishi, it had been led by Mitsubishi to believe that the market price for the Diamond II aircraft which it agreed to purchase from Mitsubishi for $2,600,000 (and the two for which it received options to purchase) was approximately $3,200,000. After Alan Rosefielde, President of Gulfstream III, discovered that the market price for a Diamond II was approximately $2,600,000, he wrote to Raymond S. Vinton, Vice President and General Counsel of Mitsubishi, alleging that Mitsubishi had “defrauded” him by representing to him “as a material condition of [the first] settlement that the selling price of the Diamond II aircraft was to be held at $3,195,000” and asserting that “[a] review of [Mitsubishi’s] files indicates that the [represented selling price] was an outright lie uttered in an attempt to deceive me into entering the settlement agreement.” App. at 922. Rosefielde’s letter identified three possible responses Gulfstream III could make to the alleged fraud: (1) sue for fraud; and/or (2) sue for rescission and put Mitsubishi back in the antitrust suit; or (3) reach a settlement. App. at 924.

In the letter Rosefielde suggested that as a settlement he would expect “a concession of $600,000 per aircraft for three aircraft for a total sum of $1,800,000” and that this alternative favored Mitsubishi because if, instead, Rosefielde were to “retain counsel in Texas [he would] seek this amount plus an equal amount in pun[i]tive damages.” App. at 924.

On December 22,1986, Gulfstream III and Mitsubishi, without rescinding the First Mitsubishi Settlement, entered into the Second Mitsubishi Settlement whereby Mitsubishi paid Gulfstream III an additional $1.8 million and in exchange Gulfstream III released all claims,

specifically including but not limited to all causes of action pleaded or that could have been pleaded or asserted in [the antitrust suit] ... and all claims that have been made or could have been made by [plaintiff] relating to or arising out of the negotiation, entry, signing and performance of the following:
(a) The settlement agreement dated August 6, 1985 and all options and agreements referred to therein [the First Mitsubishi Settlement] ...;
(b) The Joint and Mutual Release in Full dated August 14, 1985;
(c) The Diamond II Purchase Agreement dated August 21, 1985 and all op*445tions and agreements referred to therein.

App. at 803, 805 (emphasis added).

Notwithstanding the express’ reference in the Second Mitsubishi Settlement to the potential fraud claims, the district court included all of the $1.8 million from that settlement in the amount to be offset against the trebled jury verdict Gulfstream III received against Cessna. The court concluded that “the approximate value of each of plaintiffs’ three options [to purchase an aircraft at a set price] in the First Mitsubishi Settlement Agreement2 was $600,000” and that the $1.8 million transferred in the Second Mitsubishi Settlement “demonstrates the value of the options conveyed in the [F]irst Mitsubishi [Settlement.” App. at 75. In reaching this conclusion, the district court rejected the parties’ own valuation of the First Mitsubishi Settlement as $400,000. Instead, it included the full $1.8 million because the language in the Second Mitsubishi Settlement expressly released Mitsubishi from any of Gulfstream Ill’s potential antitrust claims against Mitsubishi and because the $1.8 million paid in that settlement “approximately” equaled the difference between the misrepresented market price of the Diamond II aircraft and the purchase and/or option price in the First Mitsubishi Settlement.

The majority essentially agrees with the district court, stating that “[t]he fact that [Gulfstream III] threatened to sue Mitsubishi for fraud does not alter the reality that the second settlement proceeds were part of the true value of the original settlement.” Majority op. at 434 (emphasis added). Assuming that a subsequent settlement and other evidence not known or available to the parties at the time of a settlement can be used to quantify the value of the initial settlement;-I believe that there is no basis on this record to allocate the entire $1.8 million cash received to the First Mitsubishi Settlement. Moreover, the majority fails to elucidate the facts on record on which it relies to establish “the reality” of the settlement transaction.

II.

In the portion of its opinion dealing with the allocation of settlements to multiple claims (Part II B.2.b), the majority establishes a sequential order of proof and burden shifting that I think is apt for all calculations of settlement offsets in antitrust cases. The majority states that a non-settling defendant meets its burden when it shows that the plaintiff settled the claim at issue, after which the burden shifts to the plaintiff to prove that the settlement did not represent damages arising under the same theory of liability as that forming the basis for the jury award.3 I would adopt that framework in dealing with the issue whether the $1.8 million conveyed in the Second Mitsubishi Settlement represented only damages for the antitrust claim for which the jury awarded Gulfstream III damages against Cessna.

Cessna met its initial burden by showing that the Second Mitsubishi Settlement covered, inter alia, the antitrust claim. The burden then shifted to plaintiff to show that it covered more. However, the majority never discusses whether it is holding that plaintiff failed to meet that burden. It merely states that “the record supports the district court’s finding that the $1,800,000 received in the second settlement was properly set off.” Majority op. at 434. The district court also *446failed to analyze this issue under that burden shifting framework. I think it is clear from uncontradicted evidence in the record that plaintiff met its burden to show that the Second Mitsubishi Settlement resolved more than just the antitrust claims resolved in the First Mitsubishi Settlement.

In the first place, we must look to the language of the settlement agreement itself. As the district court acknowledged, and as Cessna admitted at oral argument, the plain language of the Second Mitsubishi Settlement covers “all claims that have been made or could have been made by [plaintiff] relating to or arising out of the negotiation, entry, signing, and performance of’ the First Mitsubishi Settlement, not merely the antitrust claims settled by the First Mitsubishi Settlement. App. at 75, 805. The plaintiffs claim of fraud arising out of the negotiation of the First Mitsubishi Settlement is obviously encompassed by this language.

The second inquiry must be the intent of the parties. In Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), the Supreme Court stated that the intentions of the parties to a settlement agreement in an antitrust case as to what that agreement covers were controlling in determining whether the settlement agreement should be offset against the jury verdict. Specifically, the Court said that

to the extent that the ... settlement which [plaintiff] received in return for the ... release was understood by the parties to provide compensation for future damages^] ... [the antitrust coconspirator who was not a party to the release] would have available to it a defense of payment [for the same future damages it was ordered to pay].... However, the record below indicates that a defense of payment could not here be sustained for ... the undisputed and unimpeached testimony of [plaintiff’s] witnesses was that the ... settlement was understood by the parties as compensation only for [plaintiffs] damages up to the date of the release.

Id. at 348, 91 S.Ct. at 811 (emphasis added) (citations omitted); see also Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39, 55 (5th Cir. 1976) (“The intention of the parties to the release is the controlling factor as to just what damages are covered.”).

Here again, Gulfstream III has met its burden to demonstrate that the intent of the parties to the Second Mitsubishi Settlement was to settle more than Gulfstream Ill’s antitrust claims by producing evidence to that effect from both parties to that agreement. Plaintiff filed a declaration by Rose-fielde, its President and negotiator, stating:

I considered this [state law fraud and misrepresentation] action against Mitsubishi to be very strong. I subsequently settled this matter ... with Mitsubishi paying to [Gulfstream III] the single amount of damages for which Mitsubishi would be liable under the Texas statute, namely $1.8 million_ In short, [the Second Mitsubishi Settlement] was for new claims of fraudulent conduct under state law which I asserted against Mitsubishi, and not [a] settlement of the price fixing claims in this action, which had been settled in [the First Mitsubishi Settlement].

App. at 908.

Thereafter, plaintiff filed a supplemental declaration by Rosefielde that stated that the Second Mitsubishi Settlement

settled new, independent state law fraud and misrepresentation claims which had arisen against Mitsubishi, as set forth fully in my prior declaration ... and in the affidavit of Yukihisa Hotta. The [First Mitsubishi Settlement], which settled the price fixing claim on the Gulfstream airplanes at issue in this action, remained intact. That prior agreement was not rescinded, nor was the consideration Mitsubishi paid refunded.

App. at 935 (emphasis added).

Further, plaintiff filed an affidavit as to the intent of Mitsubishi, the only other party to that settlement, from Yukihisa Hotta (Hotta Affidavit), Mitsubishi’s in-house counsel, stating:

The claims threatened by [Gulfstream III] in the fall of 1986 related to alleged misrepresentations pertaining to the term of sale of a Diamond II aircraft and an option to purchase two additional Diamond *447II aircraft. The claims were threatened under the Texas Deceptive Trade Practices Act and were viewed as serious claims by myself and Mitsubishi’s outside counsel, the law firm of Fulbright & Jaworski.
... Mitsubishi denied liability, but agreed to settle these claims in December, 1986 for $1.8 million, which represented threatened single damages under the Texas statute, which provides for treble damages plus attorneys’ fees.4

App. at 913 (emphasis added).

Cessna produced no refutation of the signed and sworn affidavits by the representatives of the two parties to the Second Mitsubishi Settlement Agreement and thus they remain unimpeached. The district court never found that the credibility of either of the affiants was at issue, nor is it likely that it could have since there was no evidentiary hearing on this issue. The majority opinion dismisses the significance of the statement in the Hotta Affidavit that the $1.8 million “represented threatened single damages” for fraud and misrepresentation, as a “mathematical truism.” Majority op. at 435. I do not understand that statement. If, as the majority acknowledges, the $1.8 million was paid to settle “all claims between the parties,” Majority op. at 434, then Hotta’s statement that the money “represented” a settlement for the fraud and misrepresentation is not inconsistent with a finding that the settlement covered more than merely the antitrust claims.

Once plaintiff met its burden to produce evidence showing that the $1.8 million was not paid merely to settle antitrust claims which Mitsubishi had already settled and for which it already had a release, the burden of proof once again shifted to Cessna. Payment is an affirmative defense which must be proven by the party asserting it. See Fed. R.Civ.P. 8(e). In a comparable situation where an employer obliged to pay workers’ compensation benefits seeks to offset a later settlement, the courts have held that the employer bears the burden of proof regarding the apportionment of that settlement. See I.T.O. Corp. v. Sellman, 967 F.2d 971, 973 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993); Farce v. Director, Office of Workers’ Compensation Programs, 938 F.2d 981, 985 (9th Cir.1991).

In light of plaintiffs production of unim-peached and unrebutted evidence that it had a viable claim under the Texas fraud statute which was released by the Second Mitsubishi Settlement, defendant’s burden to prove otherwise was not a light one. I do not think it was met by the slender reed of evidence that Rosefielde had accused Mitsubishi of overvaluing the price of the Diamond II plane by $600,000 and multiplying that amount by three because there were three planes referenced in the First Mitsubishi Settlement (one for purchase and two via conditional options to purchase). There is no other evidence of record to support the district court’s conclusion, which the majority has adopted. There are many reasons on the record why that mere fact cannot support the conclusion reached.

First, it is based on the unreasonable assumption that Mitsubishi would settle with Rosefielde at the full demanded price. There is no evidence to support that; every other defendant settled plaintiffs claim at a discounted figure. Second, the district court valued no other option in an equal manner. For example, the district court valued the Atlantic Aviation Settlement based on actual receipts even though the settlement included an unexercised option (essentially valuing the option at $0). Third, it is unrealistic to value the option to purchase the plane at $600,000 (even if the represented price had been overvalued by $600,000) because of the transaction costs to Gulfstream III, a secondary seller, of financing the purchases, finding a buyer, and selling the planes. Fourth, valuing each option at $600,000 fails to account for the fact that the option to purchase the two planes was conditional on the purchase of the first, and in fact Gulfstream III never did so. Thus, even if those conditional options had some value, it could not have been *448the full $600,000 discount from the sales price.

Fifth, the $2,025,000 value which the district court assigned to the Mitsubishi Settlements is grossly out of line with the values of the other settlements which ranged from $251,392.58 (the Atlantic Aviation Settlement) to $600,000 (the Gates Learjet Settlement). Neither the majority nor the district court proffers any explanation why Mitsubishi, one of seven jointly and severally liable codefendants, would pay Gulfstream III in settlement almost $1.5 million more than any other defendant. Finally, the district court did not assign any value at all to the released claim of fraud, although it never made a finding that claim had no value under the Texas statute.

The majority sidesteps whether the issue of the allocation of the settlement between claims is one of fact or law. If it is an issue of law, then I believe the mere fact that the amount paid in the Second Mitsubishi Settlement approximated the claimed discrepancy in represented sales price is simply insufficient as a matter of law to overcome unrefut-ed evidence which shows that the Second Mitsubishi Settlement covered the potential fraud and misrepresentation claim. If it is a question of fact, then there was at least a genuinely disputed factual issue presented, and an evidentiary hearing should have been held.

It may be that it was a tactical error for plaintiff to have argued that all of the $1.8 million was paid solely to settle the potential state law fraud and misrepresentation claim against Mitsubishi for its conduct in the course of the first settlement and that none of that amount was attributable to the earlier antitrust claim. But it was no more, and probably less, of a tactical error than that committed by Cessna, who had the burden of proof on the payment issue, and who made no showing of the amount of the $1.8 million that should have been attributed to the fraud. Although it appears that neither party sought an evidentiary hearing on the apportionment issue, I believe that there was an inadequate evidentiary basis for the district court’s conclusion and, in the present posture of the case, I would remand for an evidentiary hearing and appropriate factfind-ing.

The issue of valuation and allocation of settlement offsets is a significant one for antitrust policy. I fully agree with the majority that antitrust verdicts must be offset by settlements received from jointly and severally liable codefendants to prevent the plaintiff from receiving a windfall recovery from the non-settling defendants. See Zenith Radio, 401 U.S. at 348, 91 S.Ct. at 811 (“the law ... does not permit a plaintiff to recover double payment”). However, as the majority recognizes, ensuring that plaintiffs receive a full recovery for their injuries is a second and equally important policy concern. See Flintkote Co. v. Lysfjord, 246 F.2d 368, 398 (9th Cir.) (“a plaintiff is entitled to one full satisfaction of his claim in an action against joint defendants”), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957); see also U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1236 (10th Cir.1988) (“where two or more defendants are responsible for separate injuries, an amount received in settlement from one defendant for one of the injuries may not be used to reduce the liability of the other defendant for the other injury”).

This second policy is particularly applicable in the antitrust context where Congress enacted a treble damages provision and authorized private antitrust suits to ensure the most complete enforcement of the antitrust laws. See Burlington Indus., Inc. v. Milliken & Co., 690 F.2d 380, 393 (4th Cir.1982) (“[0]ne purpose of the trebling provision is to encourage private plaintiffs to bring suit. Any ultimate recovery totaling less than three times proven damages would weaken the statutory incentive through judicial construction.”),cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983); Hydrolevel Corp. v. American Soc’y of Mechanical Eng’rs, Inc., 635 F.2d 118, 130 (2d Cir.1980) (same quotation), affd, 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982); Flintkote, 246 F.2d at 398 (holding that offsets are calculated after trebling the verdict because the “efficacy [of the treble damages provision] should not be weakened by judicial construction”); see also Texas Indus., Inc. v. *449Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981) (refusing to adopt contribution rule in antitrust cases and noting that Congress was not “concerned with softening the blow on joint wrongdoers”).

I believe the majority’s holding on the Mitsubishi offset undermines this strong policy-

. There is no dispute about the inclusion of $225,000, which was the total cash received from the First Mitsubishi Settlement.

. Notwithstanding the district court's reference to “three options,” Gulfstream III agreed to purchase one Diamond II aircraft and had only conditional options to purchase two more, dependent on Gulfstream III taking financial delivery of the first aircraft. App. at 819, 822-23.

. Specifically, the majority’s rule states:

[W]here a plaintiff executes a general settlement instrument which settles multiple claims with a defendant, but a non-settling defendant is not a party to that agreement, the non-settling defendant need show only that the plaintiff settled a claim on which the non-settling defendant was found liable at trial. If the defendant makes this showing, the burden then shifts to the plaintiff to prove that, under the terms of its agreement with the settling defendant, the settlement or part thereof did not represent damages arising under the same theory of liability as those forming the basis for the jury award. The view we adopt is consistent with the rule that a settling plaintiff is entitled to only one full recovery while at the same time it protects the plaintiff from the application of amounts received in settlement of unrelated claims.

Majority op. at 436.

. See Texas Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Com.Code Ann.

§§ 17.41-17.63 (Vernon 1987).