1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 IN RE CAPACITORS ANTITRUST 7 LITIGATION MDL Case No. 17-md-02801-JD
8 Case No. 14-cv-03264-JD
9 PRETRIAL ORDER NO. 2 FOR DIRECT PURCHASER PLAINTIFFS’ 10 TRIAL 11
12 As discussed at the pretrial conference on February 13, 2020, the Court orders as follows 13 for the jury trial of the direct purchaser plaintiffs’ case. 14 I. FINAL PRETRIAL CONFERENCE, VOIR DIRE AND JURY INSTRUCTIONS 15 1. A final pretrial conference is set for February 27, 2020, at 11 a.m. 16 2. The Court will post its proposed voir dire and jury instructions soon, and the parties 17 will have an opportunity to object or raise any concerns at the final pretrial 18 conference. 19 II. TRIAL CONDUCT 20 1. During witness testimony, all individuals at the tables for counsel will remain 21 seated and silent except for the attorneys handling the examination. There will be 22 no entry into or departure from the counsel area by any personnel. 23 2. No individual at the tables for counsel may react visibly or audibly to witness 24 testimony. An individual who fails to comply with this requirement will be 25 dismissed from the courtroom for the day, or may be dismissed for the remainder of 26 the trial. 27 3. No motions may be filed during trial without the Court’s express pre-approval on 1 III. PLEA AGREEMENTS AND GUILTY PLEAS 2 1. The parties will meet and confer on a stipulation of facts to be admitted from the 3 relevant guilty pleas and plea agreements of certain defendants. 4 2. The Holy Stone defendants and DPPs will file a stipulation to address the fact that 5 the entity that pled guilty, Holy Stone Holdings Co., Ltd., is not a named defendant 6 in this trial. 7 3. The amount of a criminal fine, or the length of sentence of imprisonment, are 8 excluded from evidence. The fact that a fine or sentence was imposed is 9 admissible. 10 4. All documents from the criminal cases other than plea agreements and judgments 11 are excluded, subject to exceptions for impeachment purposes, if warranted. 12 IV. CO-CONSPIRATOR STATEMENTS AND FIFTH AMENDMENT INVOCATIONS 13 1. For co-conspirator statements, DPPs must file a proffer by 4:00 p.m. two trial days 14 before they intend to present them. For example, statements for Wednesday must 15 be filed by 4:00 p.m. on Monday. Statements for Monday must be filed by 16 4:00 p.m. on Thursday. The proffer must specify: (1) who made the statement; 17 (2) the substance of the statement; (3) the facts showing that the declarant was a co- 18 conspirator; and (4) the facts showing that the statement was made during and in 19 furtherance of the conspiracy. F.R.E. 801(d)(2)(E); Bourjaily v. United States, 483 20 U.S. 171 (1987). The Court will either file an order, or rule from the bench, before 21 the start of testimony. 22 2. For Fifth Amendment adverse inferences, DPPs must file a proffer under the same 23 timeline that specifies: (1) the question and answer from the deposition; (2) the 24 foundation for attributing the witness’s statements to a defendant; (3) the 25 supporting independent evidence; and (4) the substantial need for an adverse 26 inference. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 27 2000). 1 3. For both the co-conspirator and Fifth Amendment proffers, defendants may not file 2 a response unless requested by the Court. 3 V. DPPS’ MOTIONS IN LIMINE 4 1. MIL No. 1: GRANTED to exclude any evidence or argument re: representation 5 agreements or arrangements between named plaintiffs and class counsel. 6 2. MIL No. 2: GRANTED to exclude any evidence or argument (1) that plaintiffs 7 were not injured or suffered reduced damages because they could pass on any 8 overcharges to their customers; and (2) that defendants are facing exposure to 9 multiple damages for the same overcharges. 10 3. MIL No. 3: GRANTED to exclude any evidence or reference to amounts and 11 terms of prior settlements, EXCEPT that defendants may offer settlement 12 cooperation provisions to show a witness’s bias or prejudice. In that event, the 13 Court will consider a limiting instruction to make sure the jury considers the 14 evidence only to evaluate witness bias. 15 4. MIL No. 4: GRANTED to exclude references to or evidence of the class’s right 16 to recover treble damages, attorneys’ fees, and costs. 17 5. MIL No. 5: GRANTED, but the Court may revisit this if the evidence shows that 18 (1) the DPPs knew there was a conspiracy, and (2) there were suppliers and 19 substitutes outside the conspiracy from whom DPPs could have purchased 20 capacitors. 21 6. MIL No. 6: GRANTED to exclude any expert testimony on whether there was a 22 conspiracy, but experts may testify about whether conduct and conditions were 23 consistent with a conspiracy, as opposed to a competitive market. 24 7. MIL No. 7: GRANTED to exclude any evidence or argument that price fixing has 25 pro-competitive or pro-consumer benefits. 26 8. MIL No. 8: DENIED for any witness who is more than 100 miles from the trial or 27 is outside the United States. FRCP 32(a)(4)(B). For those witnesses, exclusion of 1 9. MIL No. 9: GRANTED to exclude any evidence or argument inconsistent with 2 the terms of plea agreements or admissions of fact in those agreements. 3 10. MIL No. 10: GRANTED to exclude any evidence or argument of foreign 4 regulatory actions, including raids or investigations. 5 11. MIL No. 11: GRANTED to exclude any evidence or argument that (1) the US 6 DOJ closed its film capacitor investigation without bringing any charges, and 7 (2) certain defendants did not face criminal charges in the DOJ’s electrolytic 8 capacitor investigation, EXCEPT that defendants may be permitted to introduce 9 such evidence in rebuttal if the DPPs mischaracterize the reach of guilty pleas and 10 plea agreements. 11 12. MIL No. 12: DENIED. The limitations imposed by the FTAIA go to the merits 12 of a Sherman Act claim and are properly a part of the jury’s determination of 13 whether plaintiffs have proved their case. See United States v. Hsiung, 778 F.3d 14 738 (9th Cir. 2015). The Court’s FTAIA I order in this case established guideline 15 interpretations as a matter of law but did not make any findings of fact. 2016 WL 16 5724960 (Sept. 30, 2016). DPPs will have to establish at trial, as a matter of fact 17 and by a preponderance of the evidence, that defendants’ conduct violated the 18 Sherman Act (and was not excluded from the Act’s scope by the FTAIA). The 19 Court’s prior legal rulings on the scope of import trade or import commerce, as 20 well as the FTAIA’s domestic effects exception, will apply and control. As the 21 Court previously noted, if the DPPs can establish that a category of trade comes in 22 as import commerce, they need not also establish that it would have come in under 23 the domestic effects exception. As our circuit has held, “‘import trade or import 24 commerce’ with foreign nations falls squarely within the scope of the Sherman Act 25 and is excluded from the FTAIA altogether.” Hsiung, 778 F.3d at 751. 26 VI. DEFENDANTS’ MOTIONS IN LIMINE 27 1. MIL No. 1: GRANTED re sentencing memos, transcripts, and other documents 1 2. MIL No. 2: DENIED re rebuttal evidence for guilty pleas, but DPPs will be 2 limited to the specifics of the plea agreements. 3 3. MIL No. 3: DEFERRED pending proffers. 4 4. MIL No. 4: DENIED, but DPPs may not use pejorative terms such as “thieves,” 5 “criminals” or “felons.” Terms such as “cartel,” “cartelists,” “conspirators” and 6 “price fixers” may be used.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 IN RE CAPACITORS ANTITRUST 7 LITIGATION MDL Case No. 17-md-02801-JD
8 Case No. 14-cv-03264-JD
9 PRETRIAL ORDER NO. 2 FOR DIRECT PURCHASER PLAINTIFFS’ 10 TRIAL 11
12 As discussed at the pretrial conference on February 13, 2020, the Court orders as follows 13 for the jury trial of the direct purchaser plaintiffs’ case. 14 I. FINAL PRETRIAL CONFERENCE, VOIR DIRE AND JURY INSTRUCTIONS 15 1. A final pretrial conference is set for February 27, 2020, at 11 a.m. 16 2. The Court will post its proposed voir dire and jury instructions soon, and the parties 17 will have an opportunity to object or raise any concerns at the final pretrial 18 conference. 19 II. TRIAL CONDUCT 20 1. During witness testimony, all individuals at the tables for counsel will remain 21 seated and silent except for the attorneys handling the examination. There will be 22 no entry into or departure from the counsel area by any personnel. 23 2. No individual at the tables for counsel may react visibly or audibly to witness 24 testimony. An individual who fails to comply with this requirement will be 25 dismissed from the courtroom for the day, or may be dismissed for the remainder of 26 the trial. 27 3. No motions may be filed during trial without the Court’s express pre-approval on 1 III. PLEA AGREEMENTS AND GUILTY PLEAS 2 1. The parties will meet and confer on a stipulation of facts to be admitted from the 3 relevant guilty pleas and plea agreements of certain defendants. 4 2. The Holy Stone defendants and DPPs will file a stipulation to address the fact that 5 the entity that pled guilty, Holy Stone Holdings Co., Ltd., is not a named defendant 6 in this trial. 7 3. The amount of a criminal fine, or the length of sentence of imprisonment, are 8 excluded from evidence. The fact that a fine or sentence was imposed is 9 admissible. 10 4. All documents from the criminal cases other than plea agreements and judgments 11 are excluded, subject to exceptions for impeachment purposes, if warranted. 12 IV. CO-CONSPIRATOR STATEMENTS AND FIFTH AMENDMENT INVOCATIONS 13 1. For co-conspirator statements, DPPs must file a proffer by 4:00 p.m. two trial days 14 before they intend to present them. For example, statements for Wednesday must 15 be filed by 4:00 p.m. on Monday. Statements for Monday must be filed by 16 4:00 p.m. on Thursday. The proffer must specify: (1) who made the statement; 17 (2) the substance of the statement; (3) the facts showing that the declarant was a co- 18 conspirator; and (4) the facts showing that the statement was made during and in 19 furtherance of the conspiracy. F.R.E. 801(d)(2)(E); Bourjaily v. United States, 483 20 U.S. 171 (1987). The Court will either file an order, or rule from the bench, before 21 the start of testimony. 22 2. For Fifth Amendment adverse inferences, DPPs must file a proffer under the same 23 timeline that specifies: (1) the question and answer from the deposition; (2) the 24 foundation for attributing the witness’s statements to a defendant; (3) the 25 supporting independent evidence; and (4) the substantial need for an adverse 26 inference. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 27 2000). 1 3. For both the co-conspirator and Fifth Amendment proffers, defendants may not file 2 a response unless requested by the Court. 3 V. DPPS’ MOTIONS IN LIMINE 4 1. MIL No. 1: GRANTED to exclude any evidence or argument re: representation 5 agreements or arrangements between named plaintiffs and class counsel. 6 2. MIL No. 2: GRANTED to exclude any evidence or argument (1) that plaintiffs 7 were not injured or suffered reduced damages because they could pass on any 8 overcharges to their customers; and (2) that defendants are facing exposure to 9 multiple damages for the same overcharges. 10 3. MIL No. 3: GRANTED to exclude any evidence or reference to amounts and 11 terms of prior settlements, EXCEPT that defendants may offer settlement 12 cooperation provisions to show a witness’s bias or prejudice. In that event, the 13 Court will consider a limiting instruction to make sure the jury considers the 14 evidence only to evaluate witness bias. 15 4. MIL No. 4: GRANTED to exclude references to or evidence of the class’s right 16 to recover treble damages, attorneys’ fees, and costs. 17 5. MIL No. 5: GRANTED, but the Court may revisit this if the evidence shows that 18 (1) the DPPs knew there was a conspiracy, and (2) there were suppliers and 19 substitutes outside the conspiracy from whom DPPs could have purchased 20 capacitors. 21 6. MIL No. 6: GRANTED to exclude any expert testimony on whether there was a 22 conspiracy, but experts may testify about whether conduct and conditions were 23 consistent with a conspiracy, as opposed to a competitive market. 24 7. MIL No. 7: GRANTED to exclude any evidence or argument that price fixing has 25 pro-competitive or pro-consumer benefits. 26 8. MIL No. 8: DENIED for any witness who is more than 100 miles from the trial or 27 is outside the United States. FRCP 32(a)(4)(B). For those witnesses, exclusion of 1 9. MIL No. 9: GRANTED to exclude any evidence or argument inconsistent with 2 the terms of plea agreements or admissions of fact in those agreements. 3 10. MIL No. 10: GRANTED to exclude any evidence or argument of foreign 4 regulatory actions, including raids or investigations. 5 11. MIL No. 11: GRANTED to exclude any evidence or argument that (1) the US 6 DOJ closed its film capacitor investigation without bringing any charges, and 7 (2) certain defendants did not face criminal charges in the DOJ’s electrolytic 8 capacitor investigation, EXCEPT that defendants may be permitted to introduce 9 such evidence in rebuttal if the DPPs mischaracterize the reach of guilty pleas and 10 plea agreements. 11 12. MIL No. 12: DENIED. The limitations imposed by the FTAIA go to the merits 12 of a Sherman Act claim and are properly a part of the jury’s determination of 13 whether plaintiffs have proved their case. See United States v. Hsiung, 778 F.3d 14 738 (9th Cir. 2015). The Court’s FTAIA I order in this case established guideline 15 interpretations as a matter of law but did not make any findings of fact. 2016 WL 16 5724960 (Sept. 30, 2016). DPPs will have to establish at trial, as a matter of fact 17 and by a preponderance of the evidence, that defendants’ conduct violated the 18 Sherman Act (and was not excluded from the Act’s scope by the FTAIA). The 19 Court’s prior legal rulings on the scope of import trade or import commerce, as 20 well as the FTAIA’s domestic effects exception, will apply and control. As the 21 Court previously noted, if the DPPs can establish that a category of trade comes in 22 as import commerce, they need not also establish that it would have come in under 23 the domestic effects exception. As our circuit has held, “‘import trade or import 24 commerce’ with foreign nations falls squarely within the scope of the Sherman Act 25 and is excluded from the FTAIA altogether.” Hsiung, 778 F.3d at 751. 26 VI. DEFENDANTS’ MOTIONS IN LIMINE 27 1. MIL No. 1: GRANTED re sentencing memos, transcripts, and other documents 1 2. MIL No. 2: DENIED re rebuttal evidence for guilty pleas, but DPPs will be 2 limited to the specifics of the plea agreements. 3 3. MIL No. 3: DEFERRED pending proffers. 4 4. MIL No. 4: DENIED, but DPPs may not use pejorative terms such as “thieves,” 5 “criminals” or “felons.” Terms such as “cartel,” “cartelists,” “conspirators” and 6 “price fixers” may be used. DPPs need not refer to defendants by their full, 7 individual corporate entity names throughout the trial, but will need to make sure 8 the jury is not confused by names within corporate families. 9 5. MIL No. 5: DEFERRED pending proof at trial re nature and scope of 10 “subsequent remedial measures.” 11 6. MIL No. 6: GRANTED IN PART re evidence relating to AVX’s European 12 conduct. The DPPs represent that if evidence relates only to Europe, they will not 13 seek to admit the evidence against AVX to show a propensity to conspire. Only 14 evidence that implicates the alleged conspiracy in the United States will be 15 admitted. The Court will decide the issue on a case-by-case basis. The parties may 16 file a single document with their respective positions if there are 10 or more 17 documents presenting this issue for trial the next day. For a smaller subset, the 18 Court will take the issue up at 8:30 a.m. on the trial day, outside the presence of the 19 jury, or rule on the documents as they come up. 20 7. MIL No. 7: DEFERRED pending proffers. 21 8. MIL No. 8: TAKEN UNDER SUBMISSION re KEMET Corporation’s sales 22 evidence. 23 9. MIL No. 9: DENIED re the AVX and Chemi-Con potential joint venture. 24 10. MIL No. 10 re Taitsu and NCC communications: WITHDRAWN by 25 defendants. 26 11. MIL No. 11: GRANTED for evidence of foreign investigations, for the same 27 reasons as for DPPs’ MIL No. 10. 1 VII. DAUBERT MOTION RE ATTORNEY JOSEPH P. RUSSONIELLO 2 1. The Daubert motion is GRANTED, and attorney Russoniello’s testimony is 3 excluded. The proposed testimony goes to legal issues that are properly addressed 4 through a jury instruction if necessary. The Court may revisit this ruling for 5 rebuttal purposes, if warranted. 6 VII. OTHER ISSUES 7 1. Witnesses will be put on the witness stand only once. For example, if the DPPs 8 call a witness whom defendants also intend to call, defendants’ direct examination 9 of the witness will follow the DPPs’ examination of the witness. Defendants may 10 not put the witness on again for the presentation of their case to the jury. 11 2. DPPs will identify by February 17, 2020, the defendant-affiliated witnesses DPPs 12 intend to call, along with a good-faith commitment to the date and expected 13 duration of testimony. 14 3. DPPs may not make any statements to the jury about the fact that defendants NCC 3 15 and UCC are represented by the same counsel. a 16 4. The parties will meet and confer on the 30(b)(6) deposition testimony issue. 3 17 5. The parties will file by February 24, 2020, a comprehensive stipulation that 18 contains all of their agreements on: (1) the party names by which the different 19 defendant entities will be referred; (2) presentation of 30(b)(6) testimony; (3) date 20 and time estimates for defendant-affiliated witnesses to be called by DPPs; and 21 (4) all other issues on which they have agreed. 22 6. The parties will meet and confer on the exhibit list issues. 23 IT IS SO ORDERED. 24 Dated: February 14, 2020 25 26 JAMES/#PONATO 27 United Btates District Judge 28