[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-14037 September 22, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00447-CV-JOF-1
WILLIAMSON OIL COMPANY, INC.,
on behalf of itself and all
others similarly situated,
HOLIDAY WHOLESALE GROCERY CO., et al.,
Plaintiffs-Appellants,
versus
PHILIP MORRIS USA,
R.J. REYNOLDS TOBACCO CO., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 22, 2003)
Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.
MARCUS, Circuit Judge:
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
This is an antitrust action brought pursuant to section 1 of the Sherman Act,
15 U.S.C. § 1, and sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26,
by a class of several hundred cigarette wholesalers (“the class” or “the
wholesalers”) against Philip Morris, Inc. (“PM”), R.J. Reynolds Tobacco Co.
(“RJR”), Brown & Williamson Tobacco Corp. (“B&W”) and Lorillard Tobacco
Co. (“Lorillard”) (collectively “the manufacturers”). The class alleges that the
manufacturers conspired between 1993 and 2000 to fix cigarette prices at
unnaturally high levels, and that this collusion resulted in wholesale list price
overcharges of nearly $12 billion. The district court ultimately entered summary
judgment in favor of the manufacturers. It reasoned that the wholesalers had
failed to demonstrate the existence of a “plus factor,” as is necessary to create an
inference of a price fixing conspiracy, and that even if the class had shown that a
plus factor was present, the manufacturers were able to rebut fully the inference of
collusion, as the economic realities of the 1990s cigarette market rendered the
class’s conspiracy theory untenable. Rather, the district court held that the
manufacturers’ pricing behavior evidenced nothing more than “conscious
parallelism,” a perfectly legal phenomenon commonly associated with
oligopolistic industries.
2
On appeal, the wholesalers say that the district court misapplied the
summary judgment standard, that they presented sufficient evidence to withstand
the manufacturers’ motions, and that the court erred by excluding portions of the
testimony proffered by their primary expert witness. In the end, we conclude that
none of the class’s arguments are compelling and that the district court’s treatment
of the wealth of complicated issues in this case was nuanced, insightful and,
ultimately, correct. Accordingly, we affirm the court’s entry of final summary
judgment in favor of PM, RJR, B&W and Lorillard.
I
The modern American tobacco industry is a classic oligopoly. Between
1993 and 1999, appellees -- the nation’s four largest cigarette manufacturers --
along with Liggett Group, Inc.,1 manufactured more than 97% of the cigarettes
sold in the United States. Moreover, the composition of the industry has been
remarkably stable over time, a condition that has resulted largely from the fact that
during the twentieth century the major tobacco players engaged in minimal price
competition. Because price fluctuations were relatively rare, smokers typically
1
Liggett Group, Inc. is not a party to this action.
3
had no reason to change brands, brand loyalties were solidified and sizable market
share shifts were uncommon.
During the early 1990s, however, a price gap widened between premium
brands like Marlboro, Newport and Camel and discount and deep discount brands2
such as GPC, Basic and Doral. This price differential was the result of extremely
competitive pricing of the non-premium brands, especially by B&W and RJR,
which focused a large percentage of their competitive efforts on the discount and
deep discount markets. This led some “premium smokers” to shift to one of the
non-premium brands, and by 1993 these brands had captured over 40% of the
United States market. At that time, there were 10 different wholesale list price
points, i.e., cigarette price tiers.
Although this trend toward the discount and deep discount brands benefitted
RJR and B&W, it was extremely undesirable from the perspective of premium-
intensive manufacturers like PM and Lorillard.3 As such, PM -- which at the time
was (and remains) the market leader, with a market share that ranged from 42% to
50% during the period of the alleged conspiracy -- sought in April, 1992 to raise
2
As these labels suggest, the difference between these categories of cigarettes is simply
one of price.
3
For example, between 1993-2000, over 90% of Lorillard’s sales were in the premium
market.
4
the price of its lowest tier products by $4 per thousand. This effort was
unsuccessful, however, because RJR, B&W and Lorillard did not follow suit, and
PM was forced to rescind its price increase. Although PM again attempted to
increase its deep discount prices in March, 1993, this effort similarly was rebuffed
by its competitors.
Though temporarily unsuccessful, PM continued looking for ways to
reverse the trend toward discount cigarettes, and roughly one year after its failed
$4 per thousand price increase it found one. On April 2, 1993, PM decided to take
what appellants refer to as “the single boldest commercial move in U.S. cigarette
market history”: it announced that it was cutting the retail price of Marlboro
cigarettes -- which were by far the single best selling brand in America, enjoying a
21% market share -- by 40 cents per pack and foregoing price increases on other
premium brands “for the foreseeable future.” April 2, 1993 subsequently became
widely known throughout the industry as “Marlboro Friday.” This highly
competitive pricing decision was extremely significant for several reasons. First,
it left no doubt that PM was willing to take drastic competitive measures (indeed,
to sacrifice profits) in order to protect the market share of its flagship brand.
Second and quite importantly, it slimmed the price gap between premium and
discount cigarettes. Because this price differential was constricted, consumers
5
suddenly had less of an economic incentive to purchase discount cigarettes, and as
a result premium brands like Marlboro regained some of market share they had
lost prior to Marlboro Friday.
Finally, it set off a price war among appellees, as RJR, B&W and Lorillard
were immediately confronted with a need to respond in some way to PM’s bold
action. In order to remain competitive, these manufacturers matched PM’s retail
price reductions. Although these pricing actions cut into the market share held by
discount brands generally, and thus led to a reduction in the overall share held by
RJR and B&W, which, as stated, were more heavily invested in these brands, the
decision to match PM’s price reduction meant that no manufacturer suffered
unduly large market share losses.
However, this vast decrease in cigarette prices was disastrous for PM, RJR,
B&W and Lorillard alike in terms of profits,4 and appellees were forced to rethink
their profitability strategies. Indeed, appellants recognize that this economic
landscape became especially difficult in light of increasing regulation of the
industry and the surge of health-related litigation. To exacerbate its competitors’
4
For example, PM’s income from operations dropped by more than $2 billion in 1993
alone. Moreover, on April 2, 1993 the stock of its parent company, now called Altria Group,
Inc., plummeted from a price of $64 1/8 to $49 3/8, a 23% loss that reduced the company’s
market capitalization by approximately $13 billion.
6
predicament, on July 20, 1993, PM announced that its Marlboro Friday price
reduction would be made permanent and expanded to all of its premium brands,
e.g., Parliament and Virginia Slims. Moreover, PM simultaneously lowered the
wholesale price of its discount cigarettes and raised the wholesale price of its deep
discount brands by 10 cents per pack, thereby consolidating the prices of these
brand categories. This action reduced what had been 10 price points in the
American cigarette market to four: 85 mm (regular length) premium cigarettes
occupied one price tier, 100 mm (extra-long) premiums occupied another, and 85
mm and 100 mm discounts occupied the remaining two tiers. Again, PM’s
competitors promptly matched these newly announced prices. What’s more, the
very next day RJR announced that it would collapse the prices of its regular and
100 mm cigarettes, thereby reducing the price tiers to two: premium and discount.
PM, B&W and Lorillard quickly followed suit.
Appellants contend that it is only at this point that PM, RJR, B&W and
Lorillard began conspiring to fix and steadily increase prices to make up for the
tremendous financial losses they suffered as a consequence of this price war. The
class says that PM’s actions on Marlboro Friday constructively informed its
competitors that price discounting to gain market share would no longer be
tolerated, and that only when such efforts were abandoned, and the
7
premium/discount price gap narrowed, could prices again rise. By appellants’
account, the manufacturers’ conspiracy began in earnest when appellees began
using trade press -- i.e., tobacco industry financial analysts like Gary Black -- to
“signal” each other regarding their willingness to comply with PM’s implicit
demands so as to facilitate price increases. For example, the class points to a
statement made by Martin Broughton, the CEO and Deputy Chairman of British
American Tobacco (“BAT”), B&W’s parent company, that “BAT may be one of
those who started the price war in the U.S., but we have no wish to escalate it.”5
Appellants argue that this statement somehow was a signal sent by B&W to its
competitors that B&W was willing to reduce or end price competition. The class
alleges that RJR conveyed a similar message on November 2, 1993 by publicly
announcing that it would no longer sacrifice profitability for market share.
Appellants say that PM signaled its acceptance of its competitors’ overtures
by putting its distributors on “permanent allocation” -- that is, limiting the
quantities of product the distributors could order -- on November 5, 1993.
Historically, this practice had been implemented as a temporary measure prior to a
5
As the district court recognized, and will be discussed infra, this statement is taken out of
context. Broughton’s full statement was that “BAT may be one of those who started the price
war in the U.S., but we have no wish to escalate it. But we shall be ready to respond tactically
where necessary.” Holiday Wholesale Grocery v. Philip Morris, Inc., 231 F. Supp. 2d 1253,
1278 (N.D. Ga. 2002) (emphasis added).
8
price increase, with the purpose being to prevent the wholesalers from engaging in
“trade loading,” i.e., stocking up on cigarettes before the increase so as to deprive
appellees of the benefit of their price adjustment. The class says that PM’s
placement of its wholesalers on permanent allocation actually was a signal that the
price increase sought by RJR, B&W and Lorillard was coming.
Appellants suggest that RJR responded to PM’s signal on November 8,
1993 with one last signal of its own. Specifically, the class argues that by
announcing an increase of $2 per thousand cigarettes (4¢ per pack)6 in both the
premium and discount categories, and thus maintaining the constricted
discount/premium price gap, RJR indicated that it was acceding to PM’s
conditions for increasing prices. By November 22, 1993, PM, B&W and Lorillard
had matched RJR’s increase. The class argues that it was in the economic interests
of RJR and B&W to attempt to widen the premium-discount price gap, and that
their failure to do so is evidence of collusion.
This initial RJR-led price increase was followed by eleven more parallel
increases between May 4, 1995 and January 14, 2000. See Holiday Wholesale
6
There are 20 cigarettes in a standard pack and 10 packs (200 cigarettes) in a standard
carton. Actually, RJR’s November 8, 1993 pricing action increased premium wholesale prices
by approximately 4% from their post-Marlboro Friday levels and increased discount wholesale
prices by approximately 5% from their post-Marlboro Friday levels.
9
Grocery, 231 F. Supp. 2d at 1264 (detailing these increases). The class contends
that not only is this synchronous movement evidence of a price fixing agreement,
but that many of these increases were not in the economic interest of all four
alleged co-conspirators. For example, appellants argue that on November 23,
1998, following the industry’s settlement of health care litigation with numerous
state attorneys general, PM raised its list prices by $22.50 per thousand (45¢ per
pack), which was more than was needed to offset the settlement costs. Although
RJR, B&W and Lorillard matched the increase, the class says that had PM
behaved rationally it would have increased prices less, as it was in a stronger
financial position than its competitors, who would have been forced to forfeit
market share in order to remain competitive.
Appellants contend that signaling was also accomplished through the use of
“credit memos” that accompanied the manufacturers’ price increases. The class
says that these memos granted wholesalers credits for the difference between the
old (pre-increase) prices and the new prices for several weeks after the
announcement of a price increase that purportedly was immediately effective.
This allegedly was an opportunity for the competitors of the manufacturer that
implemented the increase to match the increase before the implementing
manufacturer began to profit from it.
10
The manufacturers respond to the class’s signaling allegations by pointing
to several facets of the record that undermine appellees’ allegations of conspiracy.
Preliminarily, PM, RJR, B&W and Lorillard observe that although wholesale price
competition largely abated during the alleged conspiracy period, this resulted in
significant part from a shift in their competitive efforts to the retail arena. Indeed,
during the alleged conspiracy period, the manufacturers spent on retail
competition more than twice the amount the wholesalers claim to have been
overcharged. For example, from 1994 to 1999, PM’s spending on retail
promotions and incentive programs more than doubled. In 1999 alone, PM -- the
company that appellants say led the price fixing agreement -- spent nearly $2.9
billion (60% of its operating income) on retail promotions, couponing and its
retailer incentive program. Notably, during 1998, retail competition within the
tobacco industry was so intense that RJR, B&W and Lorillard brought an antitrust
and unfair competition suit against PM based on PM’s unilateral adoption of a
program that it called “Retail Leaders.” See R.J. Reynolds Tobacco Co. v. Philip
Morris, Inc., 199 F. Supp. 2d 362, 365 (M.D.N.C. 2002).
This shift to retail competition was efficacious, RJR says, because (1)
wholesalers cannot, by themselves, increase demand for appellees’ products, as
demand necessarily is generated by consumers; (2) retail promotions can be
11
applied more precisely than wholesale incentives, for example, a “buy one pack
get a second pack free” promotion can be targeted to convenience stores that sell
cigarettes by the pack as opposed to retail outlets that sell them by the carton; (3)
similarly, retail promotions serve as targeted defensive responses to the
competitive initiatives of other manufacturers, and this targeting is more easily
accomplished at the retail level; (4) manufacturers cannot guarantee that wholesale
list price reductions will be passed through both the wholesalers and retailers to
consumers, and that the only sure-fire way to guaranty retail savings is through
retail-targeted measures; and (5) unlike wholesale incentives, retail price
promotions help manufacturers compete for retail advertising and display space,
which is of paramount importance from a marketing perspective.
Moreover, it is indisputable that from 1993 to 1996, the manufacturers
increased wholesale list prices only four times for a total of 16 cents per pack, a
sum less than half the price decrease that resulted from PM’s actions on Marlboro
Friday. Accordingly, during the first half of the alleged conspiracy period, prices
were uniformly lower and rose at a substantially slower pace than during the
competitive time prior to the conspiracy’s alleged onset. Indeed, appellees note, it
was only five years later (during 1998), as a result of the health care settlements,
that cigarette prices surpassed their pre-Marlboro Friday levels. In fact, adjusted
12
for settlement costs, federal excise tax increases and inflation, wholesale list prices
did not reach these levels until August, 1999.
The evidence also establishes that significant market share shifts occurred
within the tobacco industry during the alleged conspiracy period. In fact, from
1993 to 2000, PM’s share of the United States market rose 20%, Lorillard’s share
rose nearly 50%, RJR’s share fell approximately 25% and B& W’s share declined
roughly 19%. These changes in appellees’ respective market shares were at least
as great as those that occurred between 1980 and 1991, an unquestionably
competitive period. For example, RJR lost twice as much market share from 1993
to 2000 as it did from 1982-1991.
The class also labels as part of the conspiracy appellees’ adoption of
permanent allocation programs despite the fact that they each had excess
manufacturing capacities.7 According to the class, restricting supply in the face of
consumer demand for more product was directly contrary to the manufacturers’
economic interests and thus indicative of illegal collusion.
Appellants also argue PM, RJR, B&W and Lorillard furthered their
collusive enterprise by exchanging sales data through a common consultant,
7
This allegation is distinct from the class’s argument that appellees’ adoption of
permanent allocation programs was a signal to their competitors. However, appellees answer
both of these allocation-based attacks in the same way, as explained infra.
13
Management Science Associates (“MSA”), which allegedly enabled appellees to
ensure that all were adhering to their allocation programs and to detect and punish
what plaintiffs’ expert Franklin M. Fisher termed “defections from an industry
understanding on price.” The MSA system tracks shipments from the
manufacturers to wholesalers and from the wholesalers to retailers and provides
reports to each appellee regarding the shipments of its competitors. Appellants
allege that although in 1994 PM began collecting sales data on RJR, B&W and
Lorillard through MSA,8 and thereby incurred a great competitive advantage, in
1995 it inexplicably began sharing this system with its competitors. Moreover,
the class posits, over time the MSA system has been modified to make the
cigarette market more transparent, and all of these alterations have been
implemented with the unanimous consent of PM, RJR, B&W and Lorillard.
Appellants also designate other activities purportedly undertaken by
appellees as non-competitive. First, they say that PM, RJR and B&W (along with
other manufacturers) conspired during the 1950s to refrain from seeking any
competitive advantage by developing more health-conscious tobacco products or
by competing on the basis of health generally. The class argues that this
8
Specifically, PM required its wholesale distributors to provide it with information
concerning their shipments of all brands of cigarettes.
14
understanding remained in effect during the conspiracy period, and says that this is
further evidence that appellees agreed not to compete on pricing grounds.
Second, the class contends that PM, RJR and B&W9 explicitly fixed prices
in other countries -- including Argentina, Canada, Costa Rica, France, Hungary,
Saudi Arabia and Venezuela, among others -- as well, and that they did so as a
“trial run” for their price fixing activities in the United States. They say that
appellees’ “experience recognizing their competitors’ signals on price
coordination in foreign markets would facilitate collusion in the U.S. market.”
Third, the class designates as evidence of a price fixing conspiracy the very
structure and history of the tobacco industry. It specifically points to the facts that
this industry features a concentration of sellers, inelastic demand at competitive
prices, high barriers to entry, a fungible product, principal firms selling at the same
level in the chain of distribution, prices that can be changed quickly, cooperative
practices and a record of antitrust violations. Fourth, the class alleges that
appellees conducted little analysis of whether to implement each of the eleven
individual price increases between 1993 and 2000.
9
It is undisputed that since 1977 Lorillard has not participated in any of the foreign
markets discussed by appellants.
15
Fifth, appellants say that although wide market share shifts indisputably
occurred during the alleged conspiracy period, collusion among the manufacturers
is nevertheless evidenced by the dampening during this period of the even wider
market share swings that pervaded between 1991 and 1993. Sixth, the class
claims that appellees enjoyed numerous opportunities to conspire, and says that
this is further evidence that they actually did collusively fix prices. Finally,
appellants assert that the manufacturers’ consolidation of control over pricing
decisions in the hands of a select few high ranking corporate officers represents
additional evidence of collusion.
The class contends that the efficacy of the conspiracy is established by its
results. Between Marlboro Friday (April 2, 1993) and February, 2000, cigarette
prices rose more than $1.17 per pack, and appellants say that they were
overcharged -- that is, charged more than they would have been in the absence of
the conspiracy -- a total of $11.9 billion. They further note that the manufacturers’
profit margins increased during the period of the alleged conspiracy, whereas they
fell during the early 1990s, and that market shares stabilized during this time.
Appellees, by contrast, vigorously dispute each of these contentions. They
do so most powerfully by reiterating that (1) retail competition throughout the
alleged conspiracy period was indisputably intense; (2) cigarette prices actually
16
were lower during most of the alleged conspiracy period than they had been prior
to Marlboro Friday; and (3) appellees’ market shares fluctuated far more
dramatically during this time than could possibly be explained in the event of an
industry-wide agreement to fix prices (indeed, the market share shifts were at least
as great as those that occurred between the competitive years of 1980-91). In fact,
the only time the market share fluctuations were greater was during the period
between 1991 and 1993, when the discount brands made significant inroads into
the market.
In February, 2000, faced with this pattern of what they perceived to be
illegitimate, collusive price increases, several wholesalers filed individual lawsuits
in various judicial districts around the country. The Judicial Panel on Multidistrict
Litigation consolidated these actions and transferred them to the United States
District Court for the Northern District of Georgia, where they were assigned to
Judge Forrester. Appellants subsequently filed an amended consolidated class
action complaint alleging that PM, RJR, B&W and Lorillard conspired to fix
prices in violation of section 1 of the Sherman Act, 15 U.S.C. § 1 and sections 4
and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26. Appellants also alleged that
the manufacturers had fraudulently concealed their activities, thereby tolling the
17
four year statute of limitations that generally applies to federal antitrust actions.
See 15 U.S.C. § 15b.
On appellees’ motion, the district court subsequently dismissed without
prejudice the fraudulent concealment allegations for failure to satisfy pleading
requirements, and struck from the complaint as “evidence pleading” appellants’
claims regarding foreign markets. On January 23, 2001, the court certified a class
of “[a]ll persons in the United States . . . that purchased cigarettes directly from
one or more of the Defendants, or any parent, subsidiary or affiliate thereof, at any
time from February 8, 1996 to February 8, 2000.” Notably, the district court
rejected the wholesalers’ fraudulent concealment argument, and the class was
temporally limited by the four year antitrust statute of limitations, 15 U.S.C. § 15b;
claims that pertained to the period prior to February 8, 1996 were dismissed as
untimely. On February 22, 2001, the district court granted the class leave to file a
second amended complaint, featuring claims under the same sections of the
Sherman and Clayton Acts. The manufacturers again moved to dismiss the
allegations of fraudulent concealment and any claims for relief that concerned
actions taken prior to February 8, 1996, and the court granted both of these
requests.
18
Subsequently, on February 8, 2002, PM, RJR, B&W and Lorillard moved
for final summary judgment on all claims against them. On July 11, 2002, in what
can be fairly described as a comprehensive and well-reasoned opinion, the district
court granted this motion, and it is the correctness of this ruling that is at issue on
appeal. In brief, appellants argue that the district court applied an overly stringent
legal standard in evaluating appellees’ summary judgment motion. Specifically,
they claim that the court improperly required them to exclude all non-
conspiratorial explanations for the manufacturers’ behavior and impermissibly
weighed the evidence, thereby usurping the function of the jury. Appellants
further contend that the district court erred by considering each piece of evidence
they presented in isolation, as opposed to evaluating their proofs in concert. The
wholesalers then identify 11 “plus factors,” see infra, and argue that each plus
factor creates a presumption that PM, RJR, B&W and Lorillard conspired to fix
cigarette prices. They say that this presumption enables them to survive appellees’
summary judgment motion. The class also argues that the district court’s entry of
final summary judgment was improper because it was predicated on the erroneous
exclusion of portions of Fisher’s expert testimony.
The manufacturers respond by defending the district court’s opinion on its
terms. They argue that the court applied precisely the correct summary judgment
19
standard, that it did not improperly weigh appellants’ proffered evidence or fail to
consider that evidence in concert, that none of the court’s evidentiary rulings were
erroneous and that none of the class’s alleged “plus factors” actually tends to
indicate a price fixing conspiracy any more than it does rational, lawful,
competitive oligopolistic behavior. Distilled to its essence, the argument espoused
by PM, RJR, B&W and Lorillard is that in an oligopoly, reason and economic
rationality often dictate parallel pricing behavior, and that the evidence presented
by the class is perfectly consistent with such “conscious parallelism.” The
manufacturers further assert that various facts on which appellants do not focus, or
that the class mischaracterizes, establish conclusively that appellees’ behavior
from 1993 through 2000 is dramatically inconsistent with any collusive behavior.
Accordingly, they say, even if appellants had established the existence of a plus
factor, and thus created an inference of conspiracy, that inference has been fully
rebutted. For all of these reasons, the manufacturers assert that the district court
properly entered final summary judgment in their favor.
II
We review de novo a summary judgment ruling, applying the same legal
standard used by the district court. See Johnson v. Bd. of Regents, 263 F.3d 1234,
20
1242-43 (11th Cir. 2001). In conducting this examination, we view the materials
presented and all factual inferences in the light most favorable to the non-moving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608,
26 L. Ed.2d 142 (1970). Summary judgment is appropriate where “there is no
genuine issue as to any material fact” and “the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden of demonstrating
the satisfaction of this standard lies with the movant, who must present “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any” that establish the absence of any genuine, material factual
dispute. Id.
We review the district court’s exclusion of expert evidence for an abuse of
discretion. See Maiz v. Virani, 253 F.3d 641, 662 (11th Cir. 2001) (“We review a
trial court’s evidentiary rulings on the admission of expert witness testimony only
for abuse of discretion.” (citing Toole v. Baxter Healthcare Corp., 253 F.3d 1307,
1312 (11th Cir. 2000)).
A. The Summary Judgment Standard in the Price Fixing Context
In order to fully explain the summary judgment standard that we apply in
price fixing cases, it is important to distinguish at the outset between collusive
21
price fixing, i.e., a “meeting of the minds” to collusively control prices,10 which is
prohibited under the Sherman and Clayton Acts, and “conscious parallelism,”
which is not.
As the Supreme Court has recognized, oligopolies -- of which the modern
tobacco industry is by all measures a prime example11 -- often feature coordinated
pricing and related behaviors. See Brooke Group, Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209, 227, 113 S. Ct. 2578, 2590, 125 L. Ed. 2d 168
(1993); United States v. Von’s Grocery Co., 384 U.S. 270, 300, 86 S. Ct. 1478,
1495, 16 L. Ed. 2d 555 (1966) (Stewart, J., dissenting) (discussing “the sort of
consciously interdependent pricing that is characteristic of a market turning the
corner toward oligopoly”). Indeed, we have explicitly recognized that “‘the
10
Although this meeting of the minds need not be formal, it must transpire.
11
We have observed that:
An oligopoly differs from a monopoly in that no one firm can control
the market price of a product merely by altering its own output.
Where a market is highly concentrated, however, it is possible for
sellers to share market power sufficient to control prices “by
recognizing their shared economic interests and their interdependence
with respect to price and output decisions.” Brooke Group, 509 U.S.
at 227, 113 S.Ct. at 2590. “Thus, the distinctive characteristic of
oligopoly is recognized interdependence among the leading firms:
the profit-maximizing choice of price and output for one depends on
the choices made by others.” IIA [Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 404a (2d ed. 2002)].
Bailey v. Allgas, Inc., 284 F.3d 1237, 1251 (11th Cir. 2002) (citations omitted).
22
distinctive characteristic of oligopoly is recognized interdependence among the
leading firms: the profit-maximizing choice of price and output for one depends on
the choices made by others.’” Bailey, 284 F.3d at 1251 (quoting IIA Areeda &
Hovenkamp, Antitrust Law ¶ 404a).
When they are the product of a rational, independent calculus by each
member of the oligopoly, as opposed to collusion, these types of synchronous
actions have become known as “conscious parallelism.” The Court has defined
this phenomenon as “the process, not in itself unlawful, by which firms in a
concentrated market might in effect share monopoly power, setting their prices at a
profit-maximizing, supracompetitive level by recognizing their shared economic
interests and their interdependence with respect to price and output decisions.”
Brooke Group, 509 U.S. at 227, 113 S. Ct. at 2590 (citations omitted). “In other
words,” we have further explained, “conscious parallelism is the practice of
interdependent pricing in an oligopolistic market by competitor firms that realize
that attempts to cut prices usually reduce revenue without increasing any firm’s
market share, but that simple price leadership in such a market can readily increase
all competitors’ revenues.” City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d
548, 570 (11th Cir. 1998) (citations omitted). Thus, these behaviors typically result
23
from firms’ rational recognition that the market structure in which they operate
will most easily yield profits by means other than price competition.
As numerous courts have recognized, it often is difficult to determine which
of these situations -- illegal price fixing or conscious parallelism -- is present in a
given case. This is largely attributable to the efforts typically made by those who
fall on the wrong side of this line to disguise the illegal nature of their endeavors.
In this vein, we have recognized that:
“[I]t is only in rare cases that a plaintiff can establish the existence of
a conspiracy by showing an explicit agreement; most conspiracies are
inferred from the behavior of the alleged conspirators,” and from
other circumstantial evidence (economic and otherwise), such as
barriers to entry and other market conditions.
Harcros, 158 F.3d at 569 (quoting Seagood Trading Corp. v. Jerrico, Inc., 924
F.2d 1555, 1573 (11th Cir. 1991)).
In the unusual case where the plaintiff is able to muster direct evidence of
price fixing, summary judgment is categorically inappropriate. See In re Citric
Acid Antitrust Litig., 191 F.3d 1090, 1093 (9th Cir. 1999) (“[Plaintiff] argues . . .
that it has produced direct evidence that [Defendant] entered into illegal price-
fixing agreements with the admitted conspirators[,] in which case summary
judgment would, of course, be inappropriate . . . .” (citing McLaughlin v. Liu, 849
F.2d 1205, 1208 (9th Cir. 1988) and T.W. Elec. Serv., Inc. v. Pacific Elec.
24
Contractors Ass’n, 809 F.2d 626, 631-32 (9th Cir. 1987))); In re Baby Food
Antitrust Litig., 166 F.3d 112, 117-18 (3d Cir. 1999).
More frequently, price fixing plaintiffs are relegated to relying on indirect
means of proof. The problem with this reliance on circumstantial evidence,
however, is that such evidence is by its nature ambiguous, and necessarily
requires the drawing of one or more inferences in order to substantiate claims of
illegal conspiracy. Over time, courts have become attuned to the economic costs
associated with using circumstantial evidence to distinguish between altogether
lawful, independent, consciously parallel decision-making within an oligopoly on
the one hand, and illegal, collusive price fixing on the other. See, e.g., Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S. Ct. 1348, 1360,
89 L. Ed. 2d 538 (1986) (“[M]istaken inferences in cases such as this one are
especially costly, because they chill the very conduct the antitrust laws are
designed to protect. ‘[W]e must be concerned lest a rule or precedent that
authorizes a search for a particular type of undesirable pricing behavior end up by
discouraging legitimate price competition.’” (citing Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 763-64, 104 S. Ct. 1464, 1470, 79 L. Ed. 2d 775 (1984)
and quoting Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 234 (1st Cir.
1983))).
25
This recognition is reflected in the summary judgment formulation that is
employed in price fixing cases. See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d
101, 104 (2d Cir. 2002) (“In the context of antitrust cases . . . summary judgment
is particularly favored because of the concern that protracted litigation will chill
pro-competitive market forces.”) (citation omitted). In order to ensure that only
potentially meritorious claims survive summary judgment, the Supreme Court has
required that inferences of a price fixing conspiracy drawn from circumstantial
evidence be reasonable. See Matsushita, 475 U.S. at 588, 106 S. Ct. at 1356
(“Respondents . . . must show that the inference of conspiracy is reasonable in
light of the competing inferences of independent action or collusive action . . . .”).
Indeed, “antitrust law limits the range of permissible inferences from ambiguous
evidence in a § 1 case.” Id. (emphasis added).
In practice, this means that “[t]o survive a motion for summary judgment . . .
a plaintiff seeking damages for [collusive price fixing] . . . must present evidence
‘that tends to exclude the possibility’ that the alleged conspirators acted
independently.” Matsushita, 475 U.S. at 588, 106 S. Ct. at 1356 (quoting
Monsanto, 465 U.S. at 764, 104 S. Ct. at 1471). Evidence that does not support
the existence of a price fixing conspiracy any more strongly than it supports
conscious parallelism is insufficient to survive a defendant’s summary judgment
26
motion. See id. (“[C]onduct as consistent with permissible competition as with
illegal conspiracy does not, standing alone, support an inference of antitrust
conspiracy.” (citing Monsanto, 465 U.S. at 764, 104 S. Ct. at 1470)) (other citation
omitted); Harcros, 158 F.3d at 569 (“[P]laintiffs’ circumstantial documentary
evidence is in equipoise, and in the absence of further evidence of collusion,
summary judgment against the plaintiffs would be in order.”); id. (“‘A fact that can
only be decided by a coin toss has not been proven by a preponderance of the
evidence, and cannot be submitted to the jury.’” (quoting James v. Otis Elevator
Co., 854 F.2d 429, 432 n. 3 (11th Cir. 1988))).
In applying these principles, we have fashioned a test under which price
fixing plaintiffs must demonstrate the existence of “plus factors” that remove their
evidence from the realm of equipoise and render that evidence more probative of
conspiracy than of conscious parallelism. See Harcros, 158 F.3d 570-71 (“‘[I]t is
well settled in this circuit that evidence of conscious parallelism [alone] does not
permit an inference of conspiracy unless the plaintiff [either] establishes that . . .
each defendant engaging in the parallel action acted contrary to its economic self-
interest’ or offers other ‘plus factors’ tending to establish that the defendants were
not engaging merely in oligopolistic price maintenance or price leadership but
27
rather in a collusive agreement to fix prices or otherwise restrain trade.” (quoting
Todorov, 921 F.2d at 1456 n.30) (other citations omitted).
Although our caselaw has identified some specific plus factors, for example,
“a showing that the defendants’ behavior would not be reasonable or explicable
(i.e. not in their legitimate economic self-interest) if they were not conspiring to
fix prices or otherwise restrain trade,” Harcros, 158 F.3d at 572, any showing by
appellants that “tend[s] to exclude the possibility of independent action” can
qualify as a “plus factor.” Id. at 571 n.35. In cases where the plaintiff establishes
the existence of one or more “plus factors,” these factors “only create a rebuttable
presumption of a conspiracy which the defendant may defeat with his own
evidence . . . .” Todorov, 921 F.2d at 1456 n.30.
In short, there are three steps to the summary judgment analysis in the price
fixing context. First, the court must determine whether the plaintiff has
established a pattern of parallel behavior. Second, it must decide whether the
plaintiff has demonstrated the existence of one or more plus factors that “tends to
exclude the possibility that the alleged conspirators acted independently.”
Matsushita, 475 U.S. at 588, 106 S. Ct. at 1356 (internal punctuation and citation
omitted). The existence of such a plus factor generates an inference of illegal
price fixing. Third, if the first two steps are satisfied, the defendants may rebut the
28
inference of collusion by presenting evidence establishing that no reasonable
factfinder could conclude that they entered into a price fixing conspiracy.
In undertaking this analysis, the district court is obligated to give the price
fixing plaintiff(s) “‘the full benefit of their proof without tightly
compartmentalizing the various factual components and wiping the slate clean of
scrutiny of each.’” Holiday Wholesale Grocery, 231 F. Supp. 2d at 1268 (quoting
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.
Ct. 1404, 1410, 8 L. Ed. 2d 777 (1962)). However, as indicated by this
discussion, it unquestionably is the duty of the district court to evaluate the
evidence proffered by the plaintiffs not to ascertain its credibility, but instead to
determine whether that evidence, if credited, “tends to” establish a conspiracy
more than it indicates conscious parallelism. As the district court put this matter,
“the import of the piece of circumstantial evidence [that appellants argue
constitutes a plus factor] must actually be of the import that is ascribed to it by
[appellants]. If, when considered in its entirety, it is totally ambiguous or to the
opposite effect, it . . . may not be relied upon by the jury.” Id. at 1270. The
district court then properly observed that a statement could not constitute a plus
factor -- i.e., could not be said by a reasonable factfinder to tend to exclude the
possibility independent behavior or to establish a price fixing conspiracy -- (1) if it
29
required the jury to “engage in speculation and conjecture to such a degree as to
render its finding ‘a guess or mere possibility,’” id. at 1271 (quoting Daniels v.
Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982)); or (2) if to infer
conspiracy from the evidence the jury necessarily would engage in “fallacious
reasoning.” Id. Moreover, “if [appellants’] theory is economically senseless, no
reasonable jury could find in its favor, and summary judgment should be granted.”
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468-69, 112 S. Ct.
2072, 2083, 119 L. Ed. 2d 265 (1992).
In this case, the district court set forth this standard correctly and in detail,
and none of appellants’ criticisms of the court’s articulation of the summary
judgment standard are persuasive. The class says that the district court required it
to exclude all “innocent” explanations for appellees’ conduct in order to survive
summary judgment. However, this plainly is incorrect. The court did not mandate
that appellants exclude the possibility of conscious parallelism in order to survive
summary judgment, but instead it required them to present some evidence that
“tends to” exclude lawful, synchronous behavior. This is precisely in line with the
method of proof established by the Supreme Court in Matsushita and refined by
this court in Harcros. Nor, in a similar vein, did the district court insist that the
existence of a conspiracy be the sole inference that a reasonable juror could draw
30
from appellants’ evidence. Again, the court required only that the class’s evidence
tend to exclude the possibility of conscious parallelism or, stated differently, to
establish a price fixing conspiracy, nothing more, nothing less.
The class also is incorrect insofar as it suggests that the Supreme Court’s
decision in Eastman Kodak casts doubt on the correctness of the summary
judgment standard applied by the district court. The Court said in Eastman Kodak
that “Matsushita demands only that the nonmoving party’s inferences be
reasonable in order to reach the jury, a requirement that was not invented, but
merely articulated, in that decision.” 504 U.S. at 468, 112 S. Ct. at 2083 (citing
Matsushita, 475 U.S. at 587-88, 106 S. Ct. at 1356). As the district court
explicitly recognized, see Holiday Wholesale Grocery, 231 F. Supp. 2d at 1270
n.9, the Court further held in Eastman Kodak that its “requirement in Matsushita
that the plaintiffs’ claims make economic sense did not introduce a special burden
on plaintiffs facing summary judgment in antitrust cases.” 504 U.S. at 468, 112 S.
Ct. at 2083.
The class argues that the district court’s imposition of a “tends to exclude
the possibility that the alleged conspirators acted independently” standard
contradicted Eastman Kodak because it imposed a “special burden” on antitrust
plaintiffs. However, this argument is unpersuasive for at least two distinct
31
reasons. First, the “tends to exclude . . .” standard itself was announced by the
Supreme Court in Matsushita, and as such Eastman Kodak’s reaffirmation of
Matsushita reaffirms the correctness of this standard as well. See Eastman Kodak,
504 U.S. at 468, 112 S. Ct. at 2083 (“Matsushita demands only that the nonmoving
party’s inferences be reasonable in order to reach the jury . . . .”). Moreover, as
recently as 1998, in binding precedent, we applied this standard unambiguously in
Harcros, observing that “[t]o survive a motion for summary judgment or for a
directed verdict, a plaintiff seeking damages for a violation of § 1 must present
evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted
independently. [Such plaintiffs], in other words, must show that the inference of
conspiracy is reasonable in light of the competing inferences of independent action
or collusive action that could not have harmed respondents.” 158 F.3d at 570
(quoting Matsushita, 465 U.S. at 764, 104 S. Ct. at 1471).
Second, it also is firmly established that a price fixing plaintiff’s evidence
must create a “reasonable” inference of conspiracy in order to withstand a
summary judgment motion. See, e.g., PepsiCo, Inc., 315 F.3d at 105 (“Although
all reasonable inferences will be drawn in favor of the non-movant, those
inferences ‘must be reasonable in light of competing inferences of acceptable
conduct.’” (quoting Tops Mkts., Inc. v. Quality Mkts, Inc., 142 F.3d 90, 95 (2d
32
Cir. 1998))). The “tends to exclude . . .” standard articulated in Matsushita and
applied by the district court in this case simply represents an explication of this
requirement; it does not represent a new hurdle. In other words, evidence creates
the requisite reasonable inference of conspiracy if it “tends to exclude the
possibility that the alleged conspirators acted independently.” Thus, the summary
judgment standard applied by the district court does not in any way run afoul of
Eastman Kodak. We also note that Eastman Kodak, Matsushita and Harcros were
accurately cited at length by the district court in this case in discussing the
summary judgment standard to be applied in price fixing cases.
Similarly unpersuasive is appellants’ argument that although they must
demonstrate the existence of one or more plus factors, the evidence constituting
such a factor must merely “tend to establish” a conspiracy, as opposed to “tend to
exclude” independent action. In support of this proposition the class cites
Harcros, where we said:
[I]t is well settled in this circuit that evidence of conscious parallelism
[alone] does not permit an inference of conspiracy unless the plaintiff
[either] establishes that, assuming there is no conspiracy, each
defendant engaging in the parallel action acted contrary to its
economic self-interest, or offers other “plus factors” tending to
establish that the defendants were not engaging merely in
oligopolistic price maintenance or price leadership but rather in a
collusive agreement to fix prices or otherwise restrain trade.
33
158 F.3d at 570-71 (citations and internal punctuation omitted) (emphasis added).
However, the distinction that appellants draw between this language and the
“tends to exclude . . .” standard announced in Matsushita is semantic only; it
makes no substantive difference. Evidence that tends to exclude the possibility of
independent action necessarily tends to establish collusion. The class’s
formulation is simply the linguistic flip side of the test announced in Matsushita.
Indeed, in Harcros we used these formulations interchangeably. Compare 158
F.3d at 570 (“[A] plaintiff seeking damages for a violation of § 1 must present
evidence that tends to exclude the possibility that the alleged conspirators acted
independently”) (internal punctuation and citations omitted) (emphasis added)
with id. at 570-71 (discussing “‘plus factors’ tending to establish that the
defendants were . . . in a collusive agreement to fix prices or otherwise restrain
trade”) (emphasis added).
Appellants further argue that because of its “fundamental error” in
conflating the “tends to exclude . . .” and “tends to establish . . .” standards in the
context of the plus factor analysis, the district court examined each piece of
evidence separately to determine whether summary judgment was appropriate
instead of considering the wholesalers’ proofs in concert. As we observed above,
however, this assertion is unfounded. See Holiday Wholesale Grocery, 231 F.
34
Supp. 2d at 1268 (“The court is . . . mindful that it must consider the evidence
presented by Plaintiffs as a whole and that ‘plaintiffs should be given the full
benefit of their proof without tightly compartmentalizing the various factual
components and wiping the slate clean after scrutiny of each.’” (quoting
Continental Ore Co., 370 U.S. at 699, 82 S. Ct. at 1410)); id. at 1270 (“[T]he
import of the piece of circumstantial evidence must actually be of the import that
is ascribed to it by Plaintiffs. If, when considered in its entirety, it is totally
ambiguous or to the opposite effect, it is not relevant and may not be relied upon
by the jury.”) (emphasis added). The class is correct that the district court at one
point indicated that it was analyzing “whether a piece of evidence can be admitted
as relevant because it creates a reasonable inference.” Id. However, in the face of
the foregoing statements, the stray comment to which the class refers is vastly
insufficient to establish that the court did not actually examine the class’s evidence
as a whole.
This is especially so given that the district court ultimately expressed its
conclusion as being “that the evidence adduced by Plaintiffs does not singularly or
in combination exclude the possibility that Defendants acted independently.” Id.
at 1328 (emphasis added). Instead, the court’s statement indicates simply that the
district court properly analyzed appellants’ alleged plus factors both individually
35
and in concert. Under Matsushita and Harcros, this certainly did not constitute
legal error. Moreover, we have independently reviewed appellants’ alleged plus
factors, both individually and in combination, and we agree that none of these
factors actually tends to exclude the possibility of independent behavior or tends
to establish a price fixing agreement.
The class further argues that the district court improperly substituted its
assessment of the evidence for that of the jury, i.e., that it acted as factfinder at the
summary judgment stage. We think the court did no such thing. Instead, it merely
ascertained, as it was required to do under Matsushita and Harcros, whether
appellants’ evidence tended to exclude the possibility of independent action. It
made no finding as to whether such independent action did or did not exist.
Although it did make determinations as to the reasonableness of the inferences
that could be drawn from the evidence, these were threshold legal determinations
that appropriately were made by the district court.
Finally, appellants argue that the district court failed to view the evidence in
the light most favorable to them and that it also failed to distinguish between the
existence of a conspiracy and its efficacy. However, they neither explain nor
support these allegations, and as such we are unable to evaluate them.
36
B. The District Court’s Application of the Antitrust Summary Judgment
Standard in This Case
As a preliminary matter, no party contests the satisfaction of the first prong
of our inquiry, viz., the existence of parallel pricing behavior. As evidenced by
the repeated, synchronous pricing decisions that occurred within the tobacco
industry between 1993 and 2000, appellees plainly priced their products in
parallel. Similarly uncontroversial is appellants’ lack of direct evidence of a price
fixing conspiracy among PM, RJR, B&W and Lorillard. Although the class
argued in the district court that it had presented such evidence, it has abandoned
this contention on appeal. Accordingly, the key questions on appeal are (1)
whether appellants have shown the existence of a plus factor so as to create an
inference of conspiracy; and (2) if so, whether appellees are able to rebut that
inference.
1. Appellants’ Alleged Plus Factors
After articulating the summary judgment standard in an antitrust case, the
district court delineated eleven distinct factors that appellants had denominated
“plus factors.” These are: “(1) signaling of intentions; (2) permanent allocations
programs; (3) monitoring of sales; (4) actions taken contrary to economic self-
37
interest, including (a) little analysis of whether to follow price increases, (b) B&W
and RJR pulling away from the discount cigarette market, (c) the May 1995 price
increase lead by RJR and followed by Philip Morris, (d) Philip Morris’ agreement
to base the initial [Management Science Associates] . . . payments on market
capitalization rather than market share, and (e) ‘excessive’ price increases after the
MSA; (5) nature of the market; (6) strong motivation; (7) reduction in the number
of price tiers; (8) opportunities to conspire; (9) pricing decisions made at high
levels; (10) the smoking and health conspiracy; and (11) foreign conspiracies.”
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1274. Although the district court
found that only the first four of these factors “merit[ed] serious consideration,” id.,
it analyzed each of them in detail. The district court ultimately concluded that
none of them actually tended to exclude the possibility of independent behavior,
and the class contests the correctness of the court’s conclusions as to each factor.
Accordingly, we consider each of these alleged plus factors.
a. Signaling
First, appellants identify several “signals” that allegedly were transmitted
among PM, RJR, B&W and Lorillard as to their pricing intentions. The class
claims that these signals were the means by which appellees’ price fixing
38
conspiracy was carried out, as the manufacturers formulated and cemented their
plans to collusively fix cigarette prices by indirectly communicating with each
other through media outlets and other public announcements.
However, the district court rejected these communications as a plus factor,
saying that it found:
[The class’s] theory of signaling among the companies to be based on
a combination of statements taken out of context, as well as ominous
readings of typical industry reporting on strategy. To reach the
inferences suggested would require the jury to engage in speculation
and does not tend to exclude the possibility that [appellees] acted
independently. . . . [Appellants] have done nothing more than show
that in an oligopoly, each company is aware of the others’ actions.
This is the nature of the economic interdependence of the companies
in an oligopoly.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1275. The district court further
noted that “in competitive markets, particularly oligopolies, companies will
monitor each other’s communications with the market in order to make their own
strategic decisions[. As such], antitrust law permits such discussions even when
they relate to pricing because the ‘dissemination of price information is not itself a
per se violation of the Sherman Act.’” Id. at 1276 (quoting United States v.
Citizens and S. Nat’l Bank, 422 U.S. 86, 113, 95 S. Ct. 2099, 2115, 45 L. Ed. 2d
41 (1975)). In this vein, lead counsel for the class conceded at oral argument
before the district court on the manufacturers’ summary judgment motions that the
39
ultimate outcome of all of the statements and actions that appellants label signals
was to return the tobacco industry from the pricing chaos that followed Marlboro
Friday to a “traditional normal oligopoly,” which, of course, is perfectly legal. Id.
at 1316.
Nonetheless, the class posits that the signaling among appellees began when
PM publicly announced on Marlboro Friday that its prospective strategy with
respect to Marlboro was to “grow market share and longer term profits,” and that it
would “forgo any further price increases on premium brands for the foreseeable
future.” The translation of this announcement, the class says, is that PM would
not engage in any more price cuts provided that its competitors did not attempt to
alter the price gap between premium and discount or deep discount cigarettes.
Thus, appellants do not argue that the actions taken by PM on Marlboro
Friday were in any way anti-competitive; in fact, they explicitly concede (as surely
they must) that this was an exceptionally competitive move. See generally NCAA
v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 104-106 & n.27, 104 S. Ct. 2948,
2961-62 & n.27, 82 L. Ed. 2d 70 (1984) (discussing generally the Sherman Act’s
goals of reducing prices and promoting competition, and observing specifically
that “‘[the Act] rests on the premise that the unrestrained interaction of
competitive forces will yield the best allocation of our economic resources, the
40
lowest prices, the highest quality and the greatest material progress’” (quoting
Northern Pacific R. Co. v. United States, 356 U.S. 1, 4-5, 78 S.Ct. 514, 517-518, 2
L.Ed.2d 545 (1958))); Monahan’s Marine, Inc. v. Boston Whaler, Inc., 866 F.2d
525, 527 (1st Cir. 1989) (“The Sherman Act’s very purpose is to help consumers,
in part by bringing about low, nonpredatory prices.”). Indeed, as the Supreme
Court explained in Brooke Group:
Even in an oligopolistic market, when a firm drops its prices to a
competitive level to demonstrate to a maverick the unprofitability of
straying from the group, it would be illogical to condemn the price
cut: The antitrust laws then would be an obstacle to the chain of
events most conducive to a breakdown of oligopoly pricing and the
onset of competition. Even if the ultimate effect of the cut is to
induce or reestablish supracompetitive pricing, discouraging a price
cut and forcing firms to maintain supracompetitive prices, thus
depriving consumers of the benefits of lower prices in the interim,
does not constitute sound antitrust policy.
509 U.S. at 223-24, 112 S. Ct. at 2588.
Similarly, we believe that PM’s announcement of its plan not to increase
prices on premium brands (and thus relinquish any basis for gaining market share
that it enjoyed as a result of Marlboro Friday) does not tend to exclude the
possibility of independent behavior or to establish a price fixing conspiracy.
Indeed, this announcement was a legitimate communication within the market on a
day when an explanation for PM’s unprecedented -- and unquestionably
41
competitive -- behavior plainly was necessary. Contrary to the class’s allegation
that “[i]t seems unusual for a manufacturer of a consumer good to conduct a press
conference to announce that it has decided to engage in retail competition,” PM’s
explanation of the dramatic events of Marlboro Friday is by no means surprising.
Thus, as the district court said, “the allegation of Marlboro Friday as ‘invitation to
collude’ is not supported by the materials cited by [appellants].” Holiday
Wholesale Grocery, 231 F. Supp. 2d at 1278. Moreover, we note that the Supreme
Court’s caveat in Brooke Group against discouraging competitive pricing behavior
applies with equal force to PM’s July, 1993 price reductions as it does to those
instituted on Marlboro Friday.
To reiterate, PM reinforced its Marlboro Friday actions by announcing on
July 20, 1993 that it would similarly reduce the prices of all of its premium brands
and that it was consolidating its discount and deep-discount price tiers. In a
commensurately competitive response to PM’s actions, RJR, B&W and Lorillard -
- which already had reduced their premium prices in response to Marlboro Friday -
- followed suit and consolidated their discount and deep-discount prices. This had
the effect of finally narrowing the premium/discount price gap to a level PM found
acceptable. Subsequently, on November 8, 1993 RJR led a 4¢ per pack increase
for both of these brand categories, which was promptly followed by PM, B&W
42
and Lorillard. The class argues that RJR and B&W -- which had been the primary
beneficiaries of the broader, pre-Marlboro Friday gap -- should have attempted to
re-widen the premium-discount price gap. By instead acquiescing in the prices
imposed on the market by PM, appellants say, RJR and B&W signaled their
acceptance of the condition for a price increase established by PM, i.e., that any
such increase could not result in a widening of the gap. Notably, however,
appellants do not specify precisely how RJR and B&W should have tried to re-
widen the price gap; that is, they do not identify the particular combination of
premium price increases and/or discount price reductions that would have created
a gap more favorable from the perspective of RJR and B&W.12
Moreover, RJR and B&W’s decisions to accept the narrower premium-
discount price gap preferred by PM do not tend to exclude the possibility of
independent behavior or to establish a price fixing conspiracy. It is plain to us that
RJR and B&W’s actions are readily explained as economically rational, self-
interested responses to Marlboro Friday. PM’s premium price cuts strongly
suggested to its competitors that any attempt to gain market share for discount
12
This is so regardless of the particular means by which PM’s competitors could have
attempted to re-widen the price gap. For example, they could have tried to (1) raise premium
prices while keeping discount prices constant or lowering them; (2) keep premium prices
constant while lowering discount prices; or (3) lower premium prices and lower discount prices
even further. We note, however, that the revenue crunch created by Marlboro Friday rendered
the last two options less feasible than the first.
43
brands through further price cuts would not be accepted. For example, had RJR or
B&W tried to cut its discount prices while raising premium prices, as the class
seems to argue they should have, PM would likely (and readily) have matched the
lower discount prices while simultaneously lowering its premium prices, thereby
underselling its competitors in the premium market and restoring the premium-
discount price gap to the level it desired. Thus, any such wholesale price
competition by RJR or B&W would only have decreased industry revenues across
the board without increasing their market shares. The only viable way for RJR
and B&W to increase their revenues was to raise prices in a manner that would not
provoke a competitive response from PM, which is precisely the action that the
class labels a signal of conspiracy. Put simply, this action is no more indicative of
collusion than it is of lawful, rational pricing behavior.
The class denotes as still another signal the statement by Martin Broughton
that “[BAT] may be one of those who started the price war in the U.S., but we
have no wish to escalate it.” The central problem with this argument, however, is
that appellants have not fully represented what Broughton said. As the district
court noted, the full statement reads: “BAT may be one of those who started the
price war in the U.S., but we have no wish to escalate it. But we shall be ready to
respond tactically where necessary.” Holiday Wholesale Grocery, 231 F. Supp. 2d
44
at 1278 (emphasis added). As the court continued: “[T]he rest of the interview
also notes that Mr. Broughton was ‘perplexed’ by [PM’s] tactics and that BAT
‘will wait and see what happens in the market before playing its own cards.’” Id.
The district court concluded that when Broughton’s entire statement is considered,
“[n]o reasonable jury could infer that B&W agreed to any particular future course
of conduct . . . .” Id. We agree; Broughton’s statement is at best ambiguous and,
more realistically, cuts against a finding of collusion.13
As explained supra, it is clear that further price reductions of either the
premium or discount brands would have reduced B&W’s revenues without
increasing its market share. Broughton’s statement simply recognizes this
economic fact, nothing more. Indeed, it would have been utterly irrational for
B&W to have reacted to the events of Marlboro Friday in any way other than to
have matched PM’s drastic price reduction (so as to retain its market share) and
13
Although the class argues that “[w]hether this statement, in conjunction with all the
other evidence cited by Plaintiffs, permits the inference that Defendants agreed to fix prices is a
question for the jury, not for the district court,” this contention is wrong in a number of respects.
First, the standard is not whether Broughton’s statement “permits the inference” of conspiracy,
but instead whether such an inference would be reasonable. In other words, we must ask whether
this statement tends to exclude the possibility of independent behavior or, conversely, tends to
establish a collusive price fixing arrangement. Second, this threshold question of the
reasonableness of the inference to be drawn from the statement is a legal question that, under
Matsushita, properly is addressed, at least initially, by the district court.
45
then to attempt to raise prices again (albeit slowly and over time) so as to regain
some of its lost revenue.
The class also says that B&W and RJR both “clarif[ied] their agreement not
to compete on price” by publicly announcing their future pricing intentions at
meetings with stock analysts. It posits that B&W was the first to signal, when on
September 30, 1993, its CEO, Thomas Sandefur, told stock analysts that “our
company fully intends to pursue options other than price for our V-F-M [value-
for-money, an industry term for discount] brands.” Notably, however, the class
has not cited to the full text of this statement. Sandefur said, in full, that:
We believe that price cutting or discounting -- while still a factor --
will be less important than in the past. That’s because gaps in the list
price have narrowed between premium and V-F-M . . . brands.
Premium brands, therefore, should regain some strength. Over time,
smaller price increases coupled with state and federal tax increases,
will bring premium prices up once again. This will make V-F-M
brands more appealing. But in the near term, value-for-money brands
will need to compete on some basis other than price. And our
company fully intends to pursue options other than price for our V-F-
M brands.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1279 (emphasis in original).
Sandefur’s complete statement simply does not tend to exclude the
possibility that B&W’s pricing decisions were reached independently (or to
establish a price fixing conspiracy). Indeed, when considered in its entirety,
46
Sandefur’s statement clearly “explains that with Philip Morris narrowing the price
gap and forcing a return to strength for premium brands, ‘in the near term,’
discount brands would have to come up with another way to compete. This
statement is anything but a commitment to abandon price competition, as
[appellants] allege. It is, in fact, a declaration of an intent to do so if and when the
prices of premium brands are increased.” Holiday Wholesale Grocery, 231 F.
Supp. 2d at 1279.
The class next alleges that RJR similarly signaled its intent to refrain from
price competition in a November 2, 1993 statement by Charles Harper, the CEO of
RJR/Nabisco, RJR’s parent company. However, Harper said no more than that
RJR was going to focus on earnings growth and was “willing to accept modest
market share losses as the cost of improving earnings.” We cannot reasonably
infer collusive price fixing from this brief comment. This general statement, like
so many of those on which appellants focus, plainly is a rational response to the
economic incentives created by PM on Marlboro Friday, and does not tend to
exclude the possibility that RJR acted independently or to establish a price fixing
conspiracy.
The class claims additionally that PM signaled the acceptability of its
competitors’ overtures at eliminating price competition by announcing its
47
permanent allocation program, which typically had been associated with an
impending price increase. Appellants say that this action actually was an
acknowledgment by PM of its competitors’ announcements that they had
abandoned price competition. Like the other actions on which the class focuses,
however, PM’s adoption of a permanent allocation program does not tend to
exclude the possibility that PM acted independently or to establish a price fixing
conspiracy. This is so for at least two independent reasons: “First, [PM] had no
idea that its competitors would react to a price increase and, to that end, had a
competitive contingency plan.” Holiday Wholesale Grocery, 231 F. Supp. 2d at
1280. Indeed, as the district court noted, “[t]here is nothing to suggest that [PM
was] responding to RJR’s willingness to move to a profitability mode except the
temporal proximity of the two announcements.” Id. Second, as we will discuss in
greater detail, infra, the allocation programs were viewed by appellees as
necessary to combat trade loading by wholesalers, which resulted in excess
product returns, disruptions in shipping patterns and stale product. When these
factors are considered, the district court was correct to say that the mere fact that
PM instituted a permanent allocation program cannot give rise to a reasonable
inference of conspiracy.
48
Finally, the class posits that appellees’ signaling reached a peak on
November 8, 1993, when RJR increased wholesale prices in equal amounts for
both the premium and discount price tiers. It contends that it was in RJR’s
economic interest to attempt to widen the price gap, yet it did not do so. However,
RJR’s actions do not tend to exclude the possibility of independent behavior or to
establish a price fixing conspiracy. Indeed, appellants’ allegation has stood
economic reality on its head. As explained supra, it would have been in the
interests of RJR and B&W to widen the gap between the premium and discount
price points only if doing so would have generated market share or profitability.
Yet because they knew as a result of Marlboro Friday that PM would not readily
accept such a strategy, and that any effort to re-widen the price gap ultimately
would have further depressed industry revenues without increasing their market
shares, economic self-interest dictated that they raise premium and discount prices
as much as they could. Again, we cannot say that these pricing decisions tend to
exclude the possibility of independent action on the part of appellees or to
establish that the manufacturers colluded to fix prices.
None of the actions taken by PM, RJR or B&W that appellants label
“signals” tend to exclude the possibility that the primary players in the tobacco
industry were engaged in rational, lawful, parallel pricing behavior that is typical
49
of an oligopoly. Nor, conversely, do they tend to establish that a price fixing
conspiracy was afoot. Notably, this conclusion does not change when we consider
these actions cumulatively. In other words, in this case the whole of the
manufacturers’ actions is no greater than the sum of its parts. Because none of
appellees’ largely ambiguous statements and actions come close to meeting the
mark, it is unhelpful to the class to consider those actions in concert.
b. Actions Against the Manufacturers’ Economic Interests
It is firmly established that actions that are contrary to an actor’s economic
interest constitute a plus factor that is sufficient to satisfy a price fixing plaintiff’s
burden in opposing a summary judgment motion. See Harcros, 158 F.3d at 572
(“One prominent ‘plus factor,’ to which antitrust plaintiffs often take recourse, is a
showing that the defendants’ behavior would not be reasonable or explicable (i.e.
not in their legitimate economic self-interest) if they were not conspiring to fix
prices or otherwise restrain trade -- that is, that the defendants would not have
acted as they did had they not been conspiring in restraint of trade.” (citing
Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540-42, 74
S. Ct. 257, 259-60, 98 L. Ed. 273 (1954))).
50
However, we must exercise prudence in labeling a given action as being
contrary to the actor’s economic interests, lest we be too quick to second-guess
well-intentioned business judgments of all kinds. See In re Citric Acid Litig., 191
F.3d at 1101 (“Courts have recognized that firms must have broad discretion to
make decisions based on their judgments of what is best for them and that business
judgments should not be second-guessed even where the evidence concerning the
rationality of the challenged activities might be subject to reasonable dispute.”).
Accordingly, appellants must show more than that a particular action did not
ultimately work to a manufacturer’s financial advantage. Instead, in the terms
employed by Matsushita, the action must “tend[] to exclude the possibility of
independent action.” Thus, if a benign explanation for the action is equally or
more plausible than a collusive explanation, the action cannot constitute a plus
factor. Equipoise is not enough to take the case to the jury.
The district court identified 7 actions taken by PM, RJR, B&W and/or
Lorillard that the class said were contrary to the actor’s economic interest:
(1) non-initiating Defendants always followed price increases; (2)
after Marlboro Friday, B&W and RJR turned away from discount
cigarettes; (3) RJR led, and Philip Morris followed, a price increase
despite planning documents which reflected they would not take
increases; (4) each Defendant exchanged information through [MSA];
(5) each Defendant had permanent allocation programs; (6) Philip
Morris based settlement payments on market capitalization and not
51
market share; and (7) Defendants agreed to pay “excessive”
settlement price increases.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1296. With the exception of the
sixth,14 appellants contest the district court’s rejection of each action as a plus
factor. Simply put, we find each of the class’s arguments to be unpersuasive.
None of the actions on which appellants focus tends to exclude the possibility of
independent behavior (or tends to establish a price fixing conspiracy), and
accordingly they do not constitute plus factors.
Preliminarily, we already have explained why the district court was correct
to reject as a plus factor the decisions by RJR, B&W and, in some cases, PM to
follow a price increase initiated by one of their competitors. Simply put,
14
This sixth factor was addressed briefly and quickly rejected as a plus factor by the
district court. In sum, the class argued that:
Major tort cases against [appellees] were settled in 1997. The shares of the initial
payment (equal to about 1% of the total settlement) were computed on the
companies’ share of total market capitalization. Subsequent annual payments were
allocated based on market share. [Appellants] argue that it was against the economic
self-interest of Philip Morris to agree that the up-front payments be based on market
capitalization rather than market share.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1304. The court simply held that “[t]here is no
evidence that Philip Morris could have settled on a more favorable basis at that time” and that
appellants’ “thesis [failed to] take into account all the known facts,” and consequently that PM’s
actions “fail[ed] to create an inference of any sort.” Id. Not only does the class not challenge these
conclusions, but also there does not appear to be any viable grounds on which they could be
contested.
52
“[t]estimony and contemporaneous documents show that RJR, B&W, and
Lorillard found their options extremely limited after [PM’s] Marlboro Friday
announcement.” Holiday Wholesale Grocery, 231 F. Supp. 2d at 1297. In the
case of RJR and B&W, they could have (indeed, the class suggests they should
have) continued to focus on widening the premium-discount price gap. However,
given PM’s unambiguous message on Marlboro Friday that it would act
aggressively to attempt to maintain its desired price differential, this likely would
have resulted in little if any market share gain. It simultaneously would have
minimized profits, given that lower prices generate smaller revenues.
Moreover, lowering wholesale prices likely would have been an ineffective
means of increasing market share, as price cuts are unlikely to be passed on by the
wholesaler to the retailer or by the retailer to the consumer. Thus, appellees’ only
viable route back to profitability was to increase prices; that they did so in a
parallel manner does not establish collusion. Because the decisions to follow
price increases were in the economic interests of RJR and B&W, these actions are
not plus factors.
Nor can the lack of analysis that preceded the decisions to match each such
individual increase be construed as evidence of collusion. Once appellees
perceived that raising prices was their wisest economic strategy, no extensive
53
discussion or planning was needed to implement this strategy each time a
competitor initiated a price increase. As the district court put it in discussing RJR:
“Once RJR determined what its strategic response would be to Marlboro Friday,
there was no need to re-complete that evaluation each time RJR needed to decide
whether to respond to a price increase.” Holiday Wholesale Grocery, 231 F. Supp.
2d at 1298.
As for appellants’ claims that RJR and B&W acted against their interests by
deciding to turn away from the discount market that had been so profitable for
them prior to Marlboro Friday, there are two simple answers. First, it is evident
that RJR and B&W did not stop focusing on its discount brands, but simply
changed tactics with respect to them. Specifically, instead of continuing with
wholesale list price competition, RJR and B&W began competing at the retail
level, where they could be certain that savings would accrue to the consumer, that
is, would not be swallowed by the wholesalers or retailers. Second, to the extent
that RJR or B&W did shift any focus away from their discount brands, doing so
plainly was in their interests.
Although the class cites a statement by Gary Black for the proposition that
“‘analysts expected’ and it was ‘well recognized’ that RJR and B&W should
continue to pursue the discount market,” Holiday Wholesale Grocery, 231 F.
54
Supp. 2d at 1300, these “expectations” were not empirically supported. Marlboro
Friday rendered the discount and deep discount markets less profitable. Both RJR
and B&W learned that if they “continued to pursue discount prices downward,
Philip Morris could respond in the same manner it did on Marlboro Friday.” Id. at
1301. What’s more, the profit margins on the premium brands made by RJR
(Camel and Winston) and B&W (Barclay, Capri, Lucky Strike, etc.) were larger
than those associated with these manufacturers’ discount brands, see id. at 1301
n.33 (discussing “the lower profit margins” associated with discount brands), and
the post-Marlboro Friday narrowing of the premium/discount price gap rendered
the discount brands less attractive to consumers. These factors cemented the
wisdom of RJR and B&W’s decisions to shift the focus away from gaining market
share for their discount brands and toward increasing profitability by
concentrating on, and increasing prices of, the premiums.
Similarly unpersuasive are the class’s arguments concerning subsequent
decisions by PM and RJR to initiate price increases despite internal analyses that
such increases were not advisable. As the district court recounted in the context of
RJR’s decision to lead a May, 1995 increase, the internal doubts concerning the
wisdom of these raises were undergirded by an uncertainty as to whether they
would be followed, not whether they would be economically beneficial if
55
followed. See Holiday Wholesale Grocery, 231 F. Supp. 2d at 1303 (“[W]hile it is
true that internal RJR staff recommended against raising prices, that
recommendation was made because it was ‘doubtful’ whether the other companies
would follow RJR’s price increase, a concern that belies [appellants’] allegation of
price fixing. Nonetheless, RJR’s CEO Jim Johnston decided in the spring of 1995
to increase prices in order to determine whether its competitors would do the
same.”).
Indeed, in 1995 the industry was still feeling the loss in revenues that
resulted from the sharp price reductions spawned by Marlboro Friday, and as
Professor Fisher explicitly recognized, “RJR was under considerable pressure in
1995 to improve its profits,” as was PM. Id. Simply put, the increases that were
in the interests of each manufacturer had to be initiated by someone, and it made
good economic sense for the industry’s two largest players, PM and RJR, to be the
ones to have done so. Thus, the decisions to lead these increases are significantly
more consistent with the economic interests of PM and RJR than they are with the
conspiracy theory advanced by the class.15
15
To the extent that the class argues that PM’s decision to follow the May, 1995 price
increase was contrary to its own pricing plans, this argument is based on a mischaracterization of
the comments of PM’s CEO. According to appellants, the CEO said that “[w]e plan no price
increase in 1995.” However, what the CEO actually said is “[w]e plan no price increase in 1995.
. . . If the competitive environment changes significantly, however, we will respond immediately
56
Appellants next raise two arguments related to the exchange by each
appellee of wholesale-to-retail sales information through Management Science
Associates. Around 1993-94, PM developed with MSA a system for tracking
wholesale to retail shipments of its products, which it believed would afford it a
great competitive advantage. Subsequently, in 1995, PM permitted MSA to share
this service with its competitors. In exchange for their acceptance of the service,
RJR, B&W and Lorillard agreed to share their own sales information.
Appellants first argue that PM’s decision to share this service cannot be
seen as being in its economic interest, and instead must be viewed as a means of
facilitating the monitoring of the conspiracy by all of the conspirators. PM
responds that by sharing the MSA service it shifted the financial burden of
gathering sales and market share data for its competitors to RJR, B&W and
Lorillard, and that as a result it actually realized an annual savings of millions of
dollars. Viewed in the light most favorable to appellants, both explanations are
plausible, and thus, at the most, this action by PM stands in equipoise; that is, it is
equally consistent with collusion as with lawful competition, and accordingly,
under Matsushita and Harcros, it cannot represent a plus factor. Second,
and appropriately.” Thus, as the district court noted, PM “did not say under any circumstances
would it not raise prices in 1995; it left open the need to respond to competitors’ actions.”
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1303.
57
appellants argue that the participation by all appellees in the MSA data sharing
system was contrary to their respective interests.
Preliminarily (and quite significantly), we note that the evidence establishes
that appellees exchanged only sales, not pricing, information through MSA.
Simply put, it is far less indicative of a price fixing conspiracy to exchange
information relating to sales as opposed to prices. Moreover, it plainly was
economically beneficial for each individual appellee to keep tabs on the
commercial activities of its competitors, so the receipt of information concerning
their sales does not tend to exclude the possibility of independent action or to
establish anticompetitive collusion. Indeed, as RJR argues, “[e]ven if one assumes
that, all else being equal, RJR would prefer that data about its products not be
available to its rivals . . ., that does not tell us that RJR acts irrationally if it
concludes that the competitive benefit of obtaining its rivals’ data outweighs
whatever preference it has against sharing its own data.”
Thus, although the sharing of information can be seen as suggesting
conspiracy, as appellants allege, it also can be seen equally as a necessary means
to the receipt of its competitors’ information. If a particular manufacturer ceased
providing its own information, its entitlement to that of its competitors would
similarly end. To draw an analogy, each company’s willingness to give its own
58
information can be viewed as the ante in a poker game. To ante is irrational only
if there is no legitimate reason why one would be playing the game; yet here, the
game is oligopolistic competition, which everyone concedes is lawful, and the ante
is perfectly consonant with the desire to play. For both of these reasons, the
delivery of wholesale-to-retail sales information to MSA does not tend to exclude
the possibility of independent action (or tend to establish a price fixing
conspiracy), and thus cannot constitute a plus factor.
Nor were the manufacturers’ adoption of permanent allocation programs 16
contrary to their economic interests. Thus, the adoption of these systems does not
tend to exclude the possibility of lawful, independent behavior, does not tend to
establish a price fixing conspiracy, and cannot constitute a plus factor. It is
uncontroverted that during “the late 1980s and early 1990s, [the manufacturers’]
direct customers engaged in ‘trade loading,’ a practice whereby the direct
customers would purchase an amount of cigarettes in excess of what they could
sell either (1) in anticipation of expected list price increases or (2) in response to
end-of-quarter or end-of-year manufacturer discounts and incentives. [The class]
admits that [appellees] experienced increased costs due to trade loading because
16
Although Lorillard implemented its program prior to the alleged inception of the
conspiracy, RJR did so in September, 1993; B&W in October, 1993; and PM in November,
1993.
59
that practice would distort sales results and cause excess product returns,
disruptions in shipping patterns, and stale product.” Holiday Wholesale Grocery,
231 F. Supp. 2d at 1284. By implementing the allocation programs, appellees
were able to eliminate this costly practice, and, the district court found,
contemporaneous documents demonstrate conclusively that this was the actual
motivation for the programs. See id. at 1284-85. It is clear that the adoption by
appellees of permanent allocation programs was in their respective interests.
In addition, the evidence establishes that allocations were increased in cases
where a particular wholesaler demonstrated a genuine need for more product, for
example where it took on a new retail customer. Although appellants attempt to
point to specific instances in which wholesalers were unable to procure such
increases, we agree with the district court that the refusal to increase a particular
allocation generally occurred only where the demand for more product stemmed
from the perception that a price increase was imminent, precisely the phenomenon
that the systems were designed to eliminate. In summarizing its findings, the court
found that “while it is clear the wholesalers did not like the allocation system, the
testimony presented by [the class] is either ambiguous or shows the opposite of
what [it] contend[s]. As such, no reasonable inference could be drawn from [the
60
class’s] evidence that [the manufacturers] used the allocation system to restrict
output.” Id. at 1287.
Finally, the class claims that the price increases that followed the settlement
of several healthcare lawsuits with various state Attorneys General were excessive
-- the largest occurred on November 23, 1998, when PM raised its list prices by
$22.50 per thousand -- and contrary to appellees’17 (or at least PM’s) economic
interests. Specifically, it says that “PM knew that the large increases . . .
benefitted RJR and B&W more than PM. PM had the financial ability to take
smaller price increases that only offset settlement costs, and had it done so, PM
would have benefitted, and RJR and B&W would have lost market share.”
Appellants even question whether PM needed to increase its prices at all following
the settlement. By contrast, they stress that regardless of PM’s pricing decision,
RJR and B&W were forced to raise prices to meet the financial obligations
imposed by the settlement. Accordingly, they posit that by not raising prices
following the settlement, or at least limiting the amount of its price increase, PM
could have undersold its competitors, thereby gaining market share.
17
RJR, B&W and Lorillard matched PM’s increases.
61
However, this argument fails because it unfairly constricts the range of
PM’s possible competitive responses to the healthcare settlement. PM could have
attempted to increase its profits by either of two means: instituting a smaller price
increase in an effort to gain market share from its competitors or, more directly,
simply increasing prices to the maximum extent the market would bear. The
class’s argument is predicated on the notion that only the first was economically
advantageous for PM. Nowhere does it explain why this should be so, and it
disregards the fact that the second was likely a more direct means of
accomplishing the same end.
Indeed, given that the need for a significant price increase was a product of
a sudden and sizable cash outflow, PM can readily point to sound economic
reasons for taking the most surefire, direct route to the recoupment of its losses.
Instead of attempting to recover its losses through market share gains, which
would have required a shift in consumers’ brand loyalties -- which, although not
immutable, are not evanescent either -- PM instead chose to directly replenish its
coffers by increasing its prices. This plainly was not an uncompetitive decision.
As such, the extent of PM’s post-settlement price raises does not tend to exclude
the possibility of independent behavior among appellees or to establish a collusive
price fixing arrangement, and consequently is not a plus factor.
62
c. Monitoring of Sales through MSA
Previously, we indicated that the district court correctly concluded that
appellees’ provision of sales and pricing information to MSA was not a plus
factor. However, the class raises a separate argument related to this monitoring.
In particular, it says that “MSA solicited and received each [appellee’s] approval
for the modification of its services and the introduction of new services and
specifically conditioned them on [appellees’] unanimous approval,” and that this
concerted behavior tends to exclude the possibility of independent action.
The district court rejected this argument, observing that appellants had
“offer[ed] no support for their contention that each modification to the service
provided by MSA . . . was made with the ‘joint agreement of all [appellees].’
Rather, the documents cited by Plaintiffs show that MSA . . . discussed various
proposals with each company individually and made modifications to their
services based on . . . MSA’s . . . views about what would be the most acceptable
to their customers. There is no evidence in the documents cited by [appellants]
that any of [appellees] negotiated together or reached any agreement together
about what services they would request from MSA . . . .” Holiday Wholesale
Grocery, 231 F. Supp. 2d at 1295 n.29.
63
On appeal, appellants fail to demonstrate how this conclusion was
erroneous. Moreover, even if the class could show that on some occasions PM,
RJR, B&W and Lorillard each agreed to a modification to the service before that
change was instituted, this does not tend to establish the existence of a conspiracy
any more than it reflects that each individual subscriber to the joint data provision
system made its decision based on an individualized calculus. To the extent that
appellants argue that the very joint nature of this system gives rise to a reasonable
inference of collusion, we already have discussed the practical and financial
advantages that stem from the ability to monitor the sales of one’s competitors and
from the spreading of the responsibility for providing market share and pricing
data to those competitors.
This leaves only the following alleged plus factors that the district court
deemed unworthy of extended discussion.
d. Smoking and Health Conspiracy
Appellants say that beginning in 1953, PM, RJR and B&W conspired to
restrict competition on the basis of health. They assert that this agreement
remained effective throughout the alleged conspiracy and that it evidences
appellees’ agreement to fix prices. As the manufacturers note, however, Professor
64
Fisher conceded that there is no evidence that these activities continued to
transpire during the period in question, i.e., 1993-2000.
Fisher opined as follows:
It is entirely possible that firms’ decisions to limit health-
based marketing in the past continued to be felt between
1993 and 2000. Such decisions may have checked
companies’ incentives to vigorously pursue health-
related research. To the extent that health-related
innovations were retarded as a result, cigarettes would
have exhibited a higher degree of homogeneity between
1993 and 2000 than they would have otherwise.
Similarly, firms limited their health-based advertising in
the early to mid 1990s, which may have served to
maintain perceived homogeneity. As explained above,
greater homogeneity facilitates coordination on price.
Thus to the extent that firms’ decisions resulted in
greater homogeneity between 1993 and 2000, it would
have facilitated coordination on price in those years.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1311 (emphasis in original).
In essence, for a jury to infer from this evidence that appellees collusively
fixed prices during the 1990s, it would have to engage in propensity reasoning,
i.e., “they did it 40 years before so they probably did it again,” albeit now with
Lorillard on board and with the object of the conspiracy being prices as opposed to
health. In other words, “[i]n order to draw an inference of conspiracy [from] this
testimony, a jury would have to engage in such speculation that its finding would
65
be a ‘guess or mere possibility.’” Id. Moreover, Fisher’s opinion itself is stated
only in terms of theoretical possibility, hardly the stuff of proof that tends to
exclude lawful, synchronous behavior.
The “smoking and health conspiracy” does not tend to exclude the
possibility that appellees were engaged in lawful, competitive pricing behavior or
to establish a price fixing conspiracy, and cannot constitute a plus factor. See
Matsushita, 475 U.S. at 595, 106 S. Ct. at 1360 (dismissing arguments against
granting summary judgment in favor of antitrust defendants where “where the
evidence of conspiracy is speculative”); see also Eastman Kodak, 504 U.S. at 468-
69, 112 S. Ct. at 2083 (reaffirming the Matsushita standard, and noting
specifically that evidence of predatory pricing that is “‘speculative,’ and [is] not
‘reasonable’” is insufficient to withstand an antitrust defendant’s summary
judgment motion); SEC v. Alejandro Duclaud Gonzalez de Castilla, 184 F. Supp.
2d 365, 376 (S.D.N.Y. 2002) (“While in a motion for summary judgment every
inference based upon an established fact must be drawn against . . . movants, as
juries are regularly advised, speculation cannot substitute for proof.”).
e. Foreign Conspiracies
66
The class also suggests that appellees conspired to fix prices in 10 different
foreign countries during and prior to the alleged American conspiracy around
which this lawsuit centers. The district court found that evidence of the
manufacturers’ actions in these countries was not admissible under Fed. R. Evid.
404(b) (other crimes, wrongs or acts) because appellants had failed to show that
any of the actions allegedly undertaken by appellees overseas were illegal under
the applicable foreign law. It summarized its disposition of the foreign conspiracy
claim by saying that:
[Appellants] []assert that they have “extensive evidence of
anticompetitive activity” by [appellees] in Hungary, France,
Argentina, Venezuela, and Panama. [Appellants] fail, however, to
address the court’s previous ruling that “price-fixing agreements were
not at all times unlawful under the laws” of these countries.
Furthermore, [appellants] baldly contend that [appellees], or their
affiliates, undertook anticompetitive price fixing agreements in
Canada, Costa Rica, El Salvador, Guatemala, and Saudi Arabia (Gulf
States). Nowhere do [appellants] describe the legal landscape in
these countries that would make any such activities unlawful, nor do
[they] do any more than cite to documents in describing the nature of
these alleged anticompetitive activities. This is simply too thin a reed
upon which to allege that [the manufacturers’] “foreign conspiracies”
are a “plus factor” in the instant litigation.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1312.
On appeal, the class cites Professor Fisher’s testimony for the proposition
that regardless of the legality of the manufacturers’ activities in these countries,
67
the foreign agreements provided a mechanism to “establish and revise, and to
monitor and enforce agreements to coordinate.” Appellants say that a reasonable
jury could infer the existence of such an American conspiracy from these allegedly
anticompetitive activities abroad.
To begin with, we cannot say the district court abused its discretion in
resolving this evidentiary question. In the absence of some palpable tie between
these overseas activities and appellees’ pricing actions in the United States, the
foreign undertakings of PM, RJR, B&W and Lorillard do not tend to exclude the
possibility of independent action in the setting of domestic cigarette prices any
more than does the health conspiracy that allegedly began during the 1950s. Nor
does the evidence readily establish a prior crime, wrong or act where appellants
ultimately have failed to establish that the foreign conduct was a crime or wrong
under the laws of the foreign sovereigns. See generally Fed. R. Evid. 404(b).
Accordingly, appellants’ alleged evidence of foreign agreements to collude does
not rise to the level of a plus factor.
f. History and Structure of the Tobacco Industry18
18
It is not perfectly clear whether the remaining factors addressed by the class are offered
as plus factors or merely as evidence that the pricing decisions made by the manufacturers during
the 1990s were not independent. Regardless, none of them constitute plus factors or are
especially probative of collusive behavior.
68
First, appellants say that the structure of the tobacco industry is conducive
to price fixing agreements because of a concentration of sellers, inelastic demand
at competitive prices, high barriers to entry, a fungible product, principal firms
selling at the same level in the chain of distribution, prices that can be changed
quickly, cooperative practices and a record of antitrust violations. In support of
the contention that this industry structure constitutes a plus factor, the class cites
In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir. 2002).
The problem with this argument, however, is that the majority of the market
characteristics on which the class focuses are simply indicia that the tobacco
industry is an oligopoly, which is perfectly legal. See generally Harcros, 158 F.3d
at 570-71. Moreover, as Judge Posner recognized in In re High Fructose Corn
Syrup, “almost any market can be cartelized if the law permits sellers to establish
formal, overt mechanisms for colluding, such as exclusive sales agencies.” 295
F.3d at 655.
As for the industry’s history of antitrust violations, the district court noted
that the class had failed to direct it to any precedent for holding such to be
indicative of a present antitrust violation. See Holiday Wholesale Grocery, 231 F.
Supp. 2d at 1305 (“The law generally disfavors use of such ‘historical’ evidence.”)
(citations omitted). Appellants have failed to do so on appeal as well.
69
g. Dampening of Market Share Shifts
Appellants next say that the shifts in the market shares enjoyed by each
appellee moderated during the period of the alleged conspiracy, thus indicating
that the collusion had its intended effect, i.e., bringing stability to a most turbulent
industry. They appear to claim that this is a plus factor. The class raises this
argument in response to the district court’s focus on the fact that there were
significant market share shifts between 1993 and 2000, which it deemed a strong
indication of competitive behavior. Appellants’ contention is misplaced, however,
because (1) as the district court noted, these shifts remained sizable between 1993
and 2000; and (2) it is beyond debate that no reasonable jury could infer from the
fact that significant market share swings did not cease but instead were only
somewhat smaller during the period in question than those that occurred between
1991 and 1993 that appellees conspired to fix prices.
Indeed, from 1993 to 2000 PM’s share of the United States market rose
20%, Lorillard’s share rose nearly 50%, RJR’s share fell approximately 25% and
B& W’s share declined roughly 19%. These sharp market share shifts were at
least as great as those that occurred between 1980 and 1991, an unquestionably
competitive period -- to reiterate, RJR lost twice as much market share from 1993
to 2000 as it did from 1982-1991 -- and plainly are inconsistent with a price fixing
70
conspiracy. See generally Brooke Group, 509 U.S. at 212-18, 113 S. Ct. at 2582-
85 (describing the competitiveness and market share shifts that characterized the
American cigarette market during the 1980s). Moreover, to the extent that the
class argues merely that the degree of these shifts is probative of a conspiracy (but
does not rise to the level of a plus factor), this contention is vastly less compelling
than is its inverse, namely that the very fact that there were significant market
share shifts during this period of alleged industry-wide collusion strongly
undermines appellants’ conspiracy allegations.
h. “Credit Memos” Made Price Increases Prospective
The class argues that appellees’ “price increase announcements were
accompanied by ‘credit memos’ so that the price increases were effectively
delayed for several weeks. This in effect allowed the [appellee] initiating the price
increase to ‘offer’ it to the other [appellees] before it became effective, to ensure
that it met with all [appellees’] approval.” The district court squarely rejected this
argument because the class provided no evidence that the credit memos actually
had this effect. It held: “The only testimony [appellants] cite for their contention
that credit memos delayed price increases fails to support this assertion.
[Appellants] assert that Carl Schoenbachler, former Chief Financial Officer of
71
B&W, testified that the credit memos delayed the impact of the price increase for a
week or more. . . . [H]owever, a more complete reading of Mr. Schoenbachler’s
testimony shows that [appellants’] meaning cannot be attributed to his testimony. 19
. . . Furthermore, [appellees’] price announcements took effect immediately,
within one to two days of the announcement date.” Holiday Wholesale Grocery,
231 F. Supp. 2d at 1274 n.11. Because there is no evidence that these credit
memos actually delayed the implementation of price increases, appellants’
argument that they constitute a plus factor necessarily fails, as does any reliance
they place on these memos as support for their allegation of conspiracy.
19
The testimony in question reads as follows:
Q: So, would I be correct, then, that one of the reasons for sending out the
Telex price increase sooner rather than later is to let the trade know that there
is some period of time until the effective date, and during that -- during which
they have the opportunity to purchase at the old price?
.....
A: No, that’s not what I said. The practice -- more recent practice has been,
when a Telex is sent out, the Telex states that the price increase is effective
immediately. All goods ordered on Monday morning will carry the new
price; you will be given a credit on a notional quantity that you purchased
over the past six months on average, the average week’s shipments over the
past six months. So, there’s no opportunity for the trade to order at the old
price over some period of time.
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1274 n.11.
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i. Opportunities to Conspire and the Restriction of Decisionmaking Authority
to High-Ranking Corporate Officers
The class posits that PM, RJR, B&W and Lorillard enjoyed numerous
opportunities to conspire, and that this supports their collusion claim. We
unambiguously held in Todorov, however, that “the mere opportunity to conspire
among antitrust defendants does not, standing alone, permit the inference of
conspiracy.” 921 F.2d at 1456 (citing Bolt v. Halifax Hosp. Med. Ctr., 891 F.2d
810, 827 (11th Cir. 1990), overruled in part on other grounds by City of Columbia
v. Omni Outdoor Adver., 499 U.S. 365, 111 S. Ct. 1344, 113 L. Ed. 2d 382
(1991)). Indeed, the opportunity to fix prices without any showing that appellees
actually conspired does not tend to exclude the possibility that they did not avail
themselves of such opportunity or, conversely, that they actually did conspire.
Appellants may not rely on this proposition to support their allegations in this
case.
Similarly, we held in Harcros that “memoranda showing that [an alleged
conspirator] exercised strict control over chlorine pricing at Harcros support an
inference that [that individual] was frustrated with his subordinates’ failure to
follow an innocuous allocation of responsibility as easily as they support an
inference that Harcros centralized pricing authority in [the individual] in order to
73
conceal the alleged conspiracy from other employees.” 158 F.3d at 569. Such a
showing cannot constitute a plus factor, as it does not tend to exclude the
possibility of independent behavior or to establish a price fixing conspiracy.
Firms routinely consolidate decisionmaking authority in high ranking officers for
a multitude of wholly legitimate reasons. Standing alone, this tells us nothing
about collusive price fixing.
As a final note, we observe that appellants have neglected Lorillard in
nearly all of their allegations, and agree with the district court that this repeated
omission also “casts doubt on [appellants’] theory.” Holiday Wholesale Grocery,
231 F. Supp. 2d at 1315.
Thus, after thorough review of this case, we are satisfied that none of the
actions on which appellants’ arguments are based rise to the level of plus factors.
Nor do they constitute plus factors when considered in concert. Indeed, when all
of appellees’ actions are considered together, the class has established nothing
more than that the tobacco industry is a classic oligopoly, replete with consciously
parallel pricing behavior, and that its members act as such.
III
74
Because the class has not carried its burden of demonstrating the existence
of a plus factor, it is unnecessary to reach the question of whether the
manufacturers are able to rebut any inference that they conspired to fix prices.
Nonetheless, we briefly discuss the arguments appellees raise in this connection,
as we believe that these showings also powerfully establish that the wholesalers’
allegations of collusive price fixing are economically untenable.
In general terms, PM, RJR, B&W and Lorillard argue that we must consider
whether the conspiracy theory makes sense not as a general matter, but rather
against the background of the economic realities of the 1990s cigarette market.
When we do so, they continue, we should find that the class’s conspiracy theory
makes no economic sense. In particular, they say that as evidenced by a multitude
of contemporaneous documents (1) cigarette prices were lower and actually rose
more slowly between 1993 and 2000 than before and their combined operating
income during the alleged conspiracy period never reached pre-1993 levels; (2)
appellees’ competitive spending at retail between 1993 and 2000 (approximately
$25.256 billion) actually was much greater than the alleged list price overcharges
to the wholesalers ($11.9 billion); and (3) market shares shifted dramatically
during the alleged period of collusion, with clear “winners” and “losers”
emerging. Appellees say that these considerations demonstrate that all of the
75
business decisions they made during the period in question were motivated by
strategic, competitive concerns and reflect uncertainty regarding various aspects of
the market that is inconsistent with collusive behavior.
The district court analyzed the manufacturers’ specific arguments in support
of their contentions, agreed with each of them and concluded that even if the class
had created an inference of conspiracy, appellees had fully rebutted it. See
Holiday Wholesale Grocery, 231 F. Supp. 2d at 1322-28. We agree.
As for the indisputable fact that cigarette prices were lower during most of
the alleged period of collusion than they previously had been, the class says that
this is a strawman, because these reduced prices were a direct product of Marlboro
Friday, which induced the price fixing conspiracy. However, as the district court
observed, appellees “demonstrated that prices rose at a lesser rate during the
alleged conspiracy period than during the period from 1988 to 1993, which [the
class] contend[s] is a period of competitive pricing . . . .” Holiday Wholesale
Grocery, 231 F. Supp. 2d at 1323. Had a price fixing arrangement actually been
afoot -- that is, in the absence of competition-induced pressure to keep prices low -
- the court reasoned, prices would have risen faster than if the manufacturers were
competing with each other. Simply put, it does not require an advanced degree in
economics to predict that prices will rise more quickly in the absence of
76
competition than in a competitive environment. The district court did not err in
concluding that this factor weighs meaningfully against the economic viability of
appellants’ theory.
Perhaps even more significantly, the class concedes that appellees
“increased retail promotional payments during the conspiracy.” Indeed, PM, RJR,
B&W and Lorillard “spent a combined $25.256 billion on promotional
allowances, coupons and retail value added” between 1993 and 2000, an amount
that is more than double the sum allegedly overcharged. Holiday Wholesale
Grocery, 231 F. Supp. 2d at 1326. In 1999, for example, PM alone spent nearly
$2.9 billion (60% of its operating income) on retail promotions, couponing and its
retailer incentive program. Moreover, we reiterate that during 1998 competition
within the industry was sufficiently pervasive that RJR, B&W and Lorillard
brought an antitrust and unfair competition suit against PM based on PM’s
adoption of a program that it called “Retail Leaders.” See R.J. Reynolds Tobacco
Co., 199 F. Supp. 2d at 365.
The district court recognized, simply and powerfully, that if prices are fixed,
and market share consequently is unlikely to change very much, there is no
rational reason to undertake extremely significant and expanding retail
promotional expenditures, which are a paradigmatically competitive activity.
77
Framed differently, it makes no sense for firms that are fixing wholesale prices to
then undermine the economic benefit of their collusion by spending more than
twice the amount of their allegedly illegal profits on retail competition. This
seems beyond reasoned debate, and thus the manufacturers’ sizable retail
expenditures also undermines the economic viability of appellants’ theory.
Finally, as for shifting market shares during the period in question, this also
is contrary to the notion that appellees were conspiring to fix prices. Specifically,
from 1993 to 2000 PM’s share of the United States market rose 20%, Lorillard’s
share rose nearly 50%, RJR’s share fell approximately 25% and B& W’s share
declined roughly 19%. Contrary to the class’s contentions, these market shares are
far from stable. Moreover, it makes little sense to posit that RJR and B&W would
continue to participate in a conspiracy that cut their market shares so dramatically.
Accordingly, the economic circumstances under which the price fixing
agreement allegedly transpired, when considered carefully, strongly undermine the
allegation of anticompetitive behavior. Simply stated, several of the actions taken
by PM, RJR, B&W and Lorillard are wholly inexplicable if we assume that a price
fixing arrangement had been reached. In sum, we believe the district court
correctly concluded that even had appellants demonstrated the existence of one or
78
more plus factors -- and on this record they have not -- the manufacturers would
have readily rebutted the resulting inference of collusion.
IV
Besides arguing that the district court erred by rejecting their arguments
concerning plus factors, the class further contends that the court erroneously
excluded the expert testimony of Professor Fisher on some of these points.
Specifically, appellants say that the district court improperly excluded Fisher’s
conclusion that the manufacturers engaged in activities beyond mere conscious
parallelism,20 which he expressed in the context of several of the particular actions
on which appellants base their claims.21
As we said in Harcros:
Federal Rule of Evidence 702, as explained by the
Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct.
2786, 2794-95, 125 L. Ed. 2d 469 (1993), and its
20
Appellants also argue that the district court erred by “dismissing” Fisher’s testimony
and conclusions regarding appellees’ adoption of permanent allocation programs as being
contrary to their economic interests. To the extent that the class uses “dismissing” synonymously
with “excluding,” as in refusing to admit Fisher’s testimony regarding the allocation programs,
we evaluate their contention infra.
21
Specifically, the district court excluded Fisher’s testimony that appellees’ alleged
signaling was indicative of collusive price fixing, see Holiday Wholesale Grocery, 231 F. Supp.
2d at 1277; that their adoption of permanent allocation programs was indicative of price fixing,
see id. at 1288; and that their exchange of information through MSA was part of a price fixing
conspiracy, see id. at 1295-96.
79
progeny, controls determinations regarding the
admissibility of expert testimony. Expert testimony may
be admitted into evidence if: (1) the expert is qualified to
testify competently regarding the matters he intends to
address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert;
and (3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a
fact in issue.
158 F.3d at 562; see also Quiet Tech. DC-8 v. Hurel-Dubois UK, Ltd., 326 F.3d
1333, 1340-41 (11th Cir. 2003) (setting forth the standards governing the
admission of expert testimony). As we have said, “we defer to the district court’s
evidentiary ruling unless that ruling is ‘manifestly erroneous.’” Id. (quoting
General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S. Ct. 512, 517, 139 L. Ed. 2d
508 (1997)). Furthermore, “‘[w]e will not overturn an evidentiary ruling and order
a new trial unless the objecting party has shown a substantial prejudicial effect
from the ruling.’” Quiet Tech. DC-8, 326 F.3d at 1341-42 (quoting Maiz, 253
F.3d at 667).
In this case, the district court held that Fisher’s opinions that collusive price
fixing was afoot should be excluded because they were unhelpful and thus
irrelevant, i.e., they did not tend to make it any more probable that appellees were
(or were not) engaged in a price fixing conspiracy. See Holliday Wholesale
80
Grocery, 231 F. Supp. 2d at 1320-22. Additionally, the court held in at least one
case that Fisher’s testimony was unhelpful because he had misunderstood the
evidence. See, e.g., Holiday Wholesale Grocery, 231 F. Supp. 2d at 1288 (holding
that Fisher’s testimony regarding the institution of permanent allocation systems
was “premised on an erroneous understanding of the evidence” and thus
inadmissible). More specifically, the district court excluded Fisher’s ultimate
opinion that there was an illegal price fixing conspiracy as irrelevant because
Fisher did not differentiate between lawful, conscious parallelism and collusive
price fixing. Accordingly, the court held, these conclusions were of absolutely no
use to a factfinder. See generally id. at 1321 (“The failure of Plaintiffs’ expert to
distinguish conscious parallelism from cartel behavior makes his subsequent
opinion inadmissible as he finds inferences of collusion where the law finds none.
Dr. Fisher is positing a new theory where certain aspects of conscious parallelism
should be found to be anticompetitive. This is not the state of the law. This
meshing of two terms is particularly troubling when the hallmark of a ‘plus factor’
under the law is that it tends to exclude the possibility that the defendant was
engaged in mere conscious parallelism.”).
In Daubert, the Supreme Court observed that:
81
Rule 702 . . . requires that the evidence or testimony
“assist the trier of fact to understand the evidence or to
determine a fact in issue.” This condition goes primarily
to relevance. Expert testimony which does not relate to
any issue in the case is not relevant and, ergo, non-
helpful. An additional consideration under Rule 702 --
and another aspect of relevancy -- is whether expert
testimony proffered in the case is sufficiently tied to the
facts of the case that it will aid the jury in resolving a
factual dispute. The consideration has been aptly
described . . . as one of “fit.”
509 U.S. at 591, 113 S. Ct. at 2795-96 (internal punctuation and quotations
omitted).
Simply stated, we can perceive no abuse of discretion in the district court’s
decision to exclude some of Fisher’s testimony. Fisher’s conclusion was that
plaintiffs participated in an illegal price fixing conspiracy, and he expressed this
opinion in the context of several aspects of appellants’ evidence, e.g., by saying
that the manufacturers’ participation in the MSA information sharing system
created an inference of collusion. However, Fisher defined “collusion” to include
conscious parallelism. Put differently, he did not differentiate between legal and
illegal pricing behavior, and instead simply grouped both of these phenomena
under the umbrella of illegal, collusive price fixing. This testimony could not
have aided a finder of fact to determine whether appellees’ behavior was or was
not legal, and the district court properly excluded it. See Fed. R. Evid. 702
82
(requiring that expert evidence “assist the trier of fact” in order to be admissible);
Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”).
Moreover, this was an equally proper basis at the summary judgment stage as it
would have been in the context of a trial. See Kumho Tire Co. Ltd. v. Carmichael,
526 U.S. 137, 158, 119 S. Ct. 1167, 1179, 143 L. Ed. 2d 238 (1999) (reinstating
the district court’s grant of summary judgment where the expert testimony offered
to defeat summary judgment did not meet the Daubert requirements).
We also note that the “addendum” to Fisher’s report on which the class
focuses specifically in its brief was not timely filed, and this alone was a sufficient
basis for the district court to reject its admission. See id.; Fed. R. Civ. P.
26(a)(2)(C) (requiring that expert disclosures be filed “at the times and in the
sequence directed by the court”).
Finally, in every instance where the district court refused to admit Fisher’s
testimony, it did so only after considering it at length and concluding that it did
not establish the existence of the particular plus factor in support of which it was
offered. We too have reviewed and considered all of the expert testimony in
question, and we are satisfied that it would not have assisted a factfinder in
determining whether appellees engaged in lawful conscious parallel behavior or
collusive price fixing.
83
V
Because appellants cannot demonstrate the existence of a plus factor, they
cannot establish an inference of conspiracy, as they must to carry the burden
imposed on them at the summary judgment stage of a collusive price fixing case.
Moreover, appellees would have rebutted any inference that they conspired to fix
prices by demonstrating that the class’s conspiracy theory is utterly implausible.
In addition, the court’s exclusion of several portions of Fisher’s testimony was in
no sense an abuse of discretion, i.e., did not constitute manifest error. See Joiner,
522 U.S. at 142, 118 S. Ct. at 517. Accordingly, we affirm in all respects the
district court’s final summary judgment in favor of the manufacturers.
AFFIRMED.
84