In Re Flat Glass

• Court: Court of Appeals for the Third Circuit
• Decided: September 29, 2004
• Docket: 03-2920
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-29-2004

In Re Flat Glass Precedential or Non-Precedential: Precedential

Docket No. 03-2920

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "In Re Flat Glass " (2004). 2004 Decisions. Paper 265. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/265

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL behalf of itself and all others similarly situated; SUPERIOR WINDSHIELD UNITED STATES COURT OF INSTALLATION, INC., on behalf of APPEALS FOR THE THIRD CIRCUIT itself and all others similarly situated; JOVI, INC., on behalf of itself and all others similarly situated, t/a Easton Area No. 03-2920 Glass; ENGINEERED GLASS WALLS, INC., on behalf of itself and all others similarly situated; BAILES GLASS CO.; IN RE FLAT GLASS INTERSTATE GLASS DISTRIBUTORS, ANTITRUST LITIGATION INC., on behalf of itself and all others (MDL No. 1200) similarly situated; ORLANDO AUTO TOP, INC.; MAYFLOW ER SALES CO., BRIAN S. NELSON, d/b/a Jamestown INC., on behalf of itself and all others Glass Service; MEL’S AUTO GLASS, similarly situated; CARDINAL IG; INC.; A. WAXMAN & CO., on behalf of REED’S BODY SHOP, INC.; BELETZ itself, and all others similarly situated; BROTHERS GLASS COM PANY, INC.; DESIGNER WINDOWS, INC., on behalf COMPLAST, INC.; WESTERN STATES of itself and all others similarly situated; GLASS, on behalf of itself and all others MOSES MOORE ALL GLASS similarly situated; GRIMES AUTO ASPECTS, INC., on behalf of itself and GLASS, INC.; D&S GLASS SERVICES, all others similarly situated; AAA GLASS, INC.;GEORGE BROWN & SON GLASS INC., on behalf of itself and all others WORKS, INC.; THERMAL CHEK, INC.; similarly situated, d/b/a The Glass Doctor; MOBILE GLASS, INC., individually and THE LURIE COM PANIES, INC.; VSTB as a representative of a class; JELD-WEN, ENTERPRISES, INC., d/b/a Perfecto Auto INC., an Oregon Corporation; JELD-WEN Glass & Upholstery and its successors; CANADA LIMITED , a Canadian PORT CITY GLASS & MIRROR, INC., corporation; JELD-WEN ARIZONA, on its own behalf and on behalf of all INC., an Arizona corporation; AVANTI others similarly situated; JOHN HEALY, INDUSTRIES, I N C. , a n A rizona JR.; COUNTY AUTO GLASS, INC., on corporation; LAKEWOOD CITY GLASS, behalf of themselves and all others I N C. ;C A R O L IN A MIRROR; s im il a r l y s it ua te d; G ER A R D J. ALLSTATE INSURANCE COMPANY; CLABBERS, on behalf of himself and all ALLSTATE INDEMNITY COMPANY others similarly situated; KIRSCHNER CORPORATION, INC., t/a Berwyn Glass Company, on behalf of itself and all others similarly situated; HARTUNG AGALITE v. GLASS CO., d/b/a Hartung Glass Industries; ALL STAR GLASS, INC., on

1 PILKINGTON PLC; PILKINGTON Barrack, Rodos & Bacine LIBBEY-OWENS-FORD CO., INC.; 2001 Market Street AFG INDUSTRIES, INC.; GUARDIAN Philadelphia, PA 19103 INDUSTRIES CORPORATION; PPG INDUSTRIES, INC.; LIBBEY-OWENS- Eugene Spector, Esq. FORD CO., INC.; ASAHI GLASS CO., Spector Roseman & Kodroff LT D.; FORD MO T O R CO.; 1818 Market Street PILKINGTON HOLDINGS; ASAHI Philadelphia, PA 19103 GLASS AMERICA, INC. Robert N. Kaplan, Esq. (Argued) UNITED STATES OF AM ERICA Richard J. Kilsheimer, Esq. (Intervenor in D.C.) Kaplan Fox & Kilsheimer (D.C. No. 97-mc-00550) 805 Third Avenue New York, NY 10022 Class Plaintiffs and Grimes Auto Glass, Michael D. Hausfeld, Esq. Appellants Cohen M ilstein Hausfeld & Toll 1100 New York Avenue, N.W. Washington, D.C. 20005 On Appeal from the United States District Court for the Robert Skirnick, Esq. Western District of Pennsylvania Meredith Cohen Greenfogel & Skirnick (Dist. Court No. 97-mc-00550) One Liberty Plaza, 35 th Floor District Judges: Hon. Donetta W. New York, NY 10006 Ambrose and Hon. Donald E. Ziegler Counsel for Appellants

Argued: June 22, 2004 Paul M. Dodyk, Esq. (Argued) Before: NYGAARD, MCKEE and Peter T. Barbur, Esq. CHERTOFF, Circuit Judges Lawrence E. Buterman, Esq. Kelly A. Rocco, Esq. (Filed: September 29, 2004) Cravath, Swaine & M oore Worldwide Plaza 825 Eighth Avenue Samuel Issacharoff, Esq. New York, NY 10019 435 West 116 Street New York, NY 10027

Daniel E. Bacine, Esq. David J. Armstrong, Esq.

2 Dickie, McCamey & Chilcote CHERTOFF, Circuit Judge. Two PPG Place Suite 400 This case addresses the recurring Pittsburgh, PA 15222 question of what quantity and quality of evidence suffices to create a genuine issue of material fact as to one particular Counsel for Appellee PPG element of a claim under Section 1 of the Industries, Inc. Sherman Act: whether a defendant entered into an unlawful agreement. Appellants contend that appellee PPG Industries, Inc. J. Michael Murray, Esq. (Argued) (“PPG”) conspired with its competitors to Berkman, Gordon, Murray & DeVan fix the prices of flat glass and automotive 55 Public Square, Suite 2121 replacement glass in the early 1990s. The Cleveland, OH 44113-1949 District Court granted PPG’s motion for summary judgment on the ground that Counsel for Appellee there was insufficient proof of an Edward Bryant agreement. We will reverse in part, affirm in part, and remand for additional proceedings.

Michael S. Sommer, Esq. McDermott, Will & Emery 50 Rockefeller Plaza New York, NY 10020 I. Background

Elliot Silverman, Esq. (Argued) A. The Flat Glass and Automotive McDermott, Will & Emery Replacement Glass Industries 18191 Von Karman Avenue Irvine, CA 92612 PPG manufactures sheets of glass through a method called the “float Counsel for Appellee process.” Molten glass is poured over a Ronald W. Skeddle bath of higher-density liquid, such as molten tin. As the glass floats on top of the bath, it is polished under controlled temperatures. Finally, the glass is fed into an “annealing oven” where it gradually OPINION OF THE COURT cools and hardens. See In re Flat Glass Antitrust Litigation, 191 F.R.D. 472, 476 n.7 (W.D. Pa. 1999). The glass that PPG produces through the float process—in

3 various sizes, thicknesses, and tints, see different products may be “fabricated” Supp. App. 14 n.16; App. 634—is called from flat glass by subjecting it to a variety “flat glass.” of processes. A substantial amount of flat glass, for example, is fabricated for use in PPG and a handful of other automobiles. Flat glass may be molded and firms— Libbey-Owens-Ford Company combined with other parts to produce (“LOF,” a subsidiary of the British glass windshields, for example, or side and rear p r o d u c e r P ilkington L L C) ; A F G window s. Supp. App. 19. Some Industries, Inc. (“AFG,” a subsidiary of the products—called original equipment Japanese glass producer Asahi Glass Co.);1 manufacturer products (“OEM” glass Guardian Industries (“Guardian”); and products)—are fabricated for sale to Ford Motor Co. (“Ford”)—manufacture vehicle manufacturers for use in new well over ninety percent of the flat glass v e h i c l e s . O t h e r p rodu cts— calle d sold in the United States. In 1995, for auto motive replac eme nt glass example, PPG acco unted for products—are fabricated for sale and use approximately 28% of domestic flat glass as automotive replacement parts. Supp. shipments, LOF and AFG each accounted App. 25. These are two separate markets.3 for 19%, and Guardian and Ford each accounted for 15%. Supp. App. 20.2 3 The parties fail to adequately Flat glass produced through the explain the relationship between OEM float process may be sold “as is,” in which glass parts and automotive replacement case it is used primarily in construction. parts, which plaintiffs describe as Supp. App. 16. Alternatively, many “identical in composition.” Plaintiffs’ Br. 4. We gather from the record that they 1 Asahi also owns a company called differ in two important respects. First, Glaverbel, which was associated with generally (but not always) only one OEM AFG, and a Canadian-based company glass producer exists for any particular called Glaverbec. product. Thus PPG alone might produce a particular windshield that a car 2 A company named Cardinal Glass manufacturer uses in a particular model Industries (“Cardinal”) accounted for car. In contrast, multiple manufacturers approximately 3% of domestic flat glass typically produce any one type of sales in 1995. Cardinal, which is not a automotive replacement part. So PPG, defendant in this suit, did not produce flat Guardian, and LOF might produce the glass until 1992, when it purchased a flat automotive replacement part that would glass manufacturing plant that AFG built replace the OEM product that only PPG for it. Before that time, Cardinal fabricated produced and sold to the car manufacturer. products from flat glass it purchased from Second, OEM glass products are sold to a PPG and others. particular car manufacturer, whereas the

4 The automotive replacement glass products, PPG runs a wholesale market has a four-tier vertical structure. distribution operation that sells less than First, manufacturers—the handful of firms truckload quantities to retail installers. Yet mentioned above—produce flat glass. PPG also sells its products to its Second, various companies fabricate the downstream competitors. It sells flat glass flat glass into different types of automotive to autom otive repla cem ent glass replacement glass products. The major fabricators, and it sells truckload quantities United States fabricators of automotive of automotive replacement glass products replacement glass products during the to wholesale distributors. class period were PPG, LOF, Ford, Guardian, Saf elite, Vir acon, B. The Alleged Conspiracies Premier/Hordis, and Chrysler. App. 585. Thus a number of firms, such as PPG, both In 1993, LOF fired two of its manufacture flat glass and fabricate it into executives—Ronald Skeddle (LOF’s automotive replacement glass products.4 President and Chief Executive Officer) and Edward Bryant (LOF’s Executive Third, the fabricators sell the parts Vice President, the company’s second- by the “truck load” to w hole sale highest ranking officer)—and a grand jury distributors. The wholesale distributors indicted them for conspiracy, mail and then sell the automotive replacement glass wire fraud, and money laundering. A jury products in less than truckload quantities eventually acquitted them of the charges, to the retail installers that sell the products but in the meantime Skeddle and Bryant directly to car owners. alleged that during the early 1990s LOF had conspired with its competitors to fix PPG operates at every level of the the price of the glass products it sold. See automotive replacement glass market; that In re Flat Glass Antitrust Litigation, 288 is, PPG is “vertically integrated.” In F.3d 83, 86 (3d Cir. 2002). addition to manufacturing flat glass and fabricating automotive replacement glass Skeddle and Bryant’s allegations spurred plaintiffs to file several private antitrust lawsuits against LOF and its corresponding identical automotive competitors (PPG, AFG, Ford, and replacement glass products are sold to Guardian), and the Judicial Panel on multiple wholesalers and retail installers. Multidistrict Litigatio n eve ntu ally 4 consolidated and transferred the actions to Automotive replacement glass the Western District of Pennsylvania. After fabricators produced approximately the District Court certified two subclasses 10,000 different automotive replacement of plaintiffs, see In re Flat Glass Antitrust glass products. No one fabricator Litigation, 191 F.R.D. 472, 475 (W.D. Pa. produced all 10,000. PPG produced approximately 6,000. App. 585.

5 1999), plaintiffs reached settlements with simply contend that PPG and its all defendants except PPG. competitors agreed to raise their prices, rather than doing so independently and Plaintiffs allege that PPG and its with no concerted coordination. competitors conspired to “fix, raise, and maintain” the prices of flat glass and automotive replacement glass. The two alleged conspiracies correspond with the two subclasses that the District Court of July 29 or August 1, certified. See In re Flat Glass Antitrust 1991; September of 1992, Litigation, 191 F.R.D. at 475. One all defendants raised their subclass consists of individuals and prices within days of each entities that purchased flat glass or other by 5-9% with an products fabricated from flat glass from effective date of October 1 PPG, LOF, Guardian, Ford, or AFG. The or October 12; May of other subclass consists of individuals and 1993, defendants raised entities that purchased automotive their prices within days of replacement glass products from any of each other by 5.5% with an those same firms. Id. effective date of June 7 or 9; October of 1993, Plaintiffs’ allegations regarding defendants raised their price-fixing in the market for flat glass are prices within days of each relatively straightforward. Several times other by 6.5% with an during the class period, PPG and the other effective date of October 30 flat glass producers raised their “list or November 1, 1993; April prices” for flat glass by the same amount of 1994 all defendants and within very close time frames. Within raised their prices by 5-9% a twelve-day period in the summer of with an effective date of 1991, for example, PPG and its May 1 or 2; August of 1994, competitors all raised their list prices for all defendants raised their flat glass by the same amounts. 5 Plaintiffs prices by 5-8% with an effective date of September 19, 1994; March of 1995, 5 The District Court catalogued all defendants raised their these price increases as follows: prices by 6% with an effective date of April 3 or July of 1991, all defendants 11. raised their prices within days of each other by 7.5- App. 16 n.4 (internal citations to District 9%, with an effective date Court record omitted).

6 Plaintiffs’ allegations regarding the truckload price used to create the price-fixing in the market for automotive NAGS price, as did the other [automotive replacement glass are more complicated. replacement glass] manufacturers.” According to plaintiffs, PPG and other Plaintiffs’ Br. 33. Thus plaintiffs contend automotive replacement glass fabricators that PPG and its competitors “had an used a mechanism, called the “NAGS understanding and acted in concert” to use Calculator,” to fix prices at supra- the NAGS Calculator to “align their competitive levels. truckload price lists and stabilize pricing, and as a benchmark for pricing of NAGS, which stands for “National [automotive replacement glass] at less- Auto Glass Specifications,” is a business than-truckload quantities.” Plaintiffs’ Br. that produced a catalogue called the 30. “ N AG S C alculator.” Th e N A G S Calculator supplied an identifying number C. The Present Appeal for each type of automotive replacement g l a s s p r o d u c t a n d p ro v i d e d a The District Court granted PPG’s recommended price for an installer to motions for summary judgment on both of charge a car owner for the part. NAGS plaintiffs’ price-fixing claims. Before came up with its recommended price for doing so, the Court circumscribed the any particular automotive replacement evidence it considered when deciding glass product by taking a truckload PPG ’s summ ary judgment motions quantity price of that product and through a series of in limine motions. The multiplying it by a number (a “multiplier”) Court refused to order Skeddle and Bryant specific to that product. Generally, NAGS to testify despite their invocation of their would use the truckload quantity price for Fifth Amendment privileges, for example, the OEM glass product that the automotive and it also excluded many of Skeddle’s replacement glass was intended to replace. handwritten notes that plaintiffs argue tend to implicate PPG in a price-fixing According to plaintiffs, PPG and conspiracy. other automotive replacement glass manufacturers knew the multipliers that Plaintiffs appeal from the District NAGS used to devise its recommended Court’s summary judgment and certain of prices. Thus PPG could, and plaintiffs its evidentiary decisions. After addressing allege did, work backwards from the the applicable legal standards, we first recommended price to determine the address whether summary judgment was truckload price that NAGS used in its warranted based on the evidence the calculation. “If the truckload price used by NAGS was different from its own truckload price,” plaintiffs argue, “PPG then adjusted its truckload price to match

7 District Court considered.6 We conclude Inc., 156 F.3d 452, 461 (3d Cir. 1998) that the District Court should not have (quoting Business Elecs. Corp. v. Sharp granted summary judgment on plaintiffs’ Elecs. Corp., 485 U.S. 717, 723 (1988)). flat glass price-fixing claim, and we Because of their “pernicious effect on address the District Court’s evidentiary competition and lack of any redeeming rulings so that the Court can further virtue,” Northern Pac. Ry. v. United consider what evidence a jury may States, 356 U.S. 1, 5 (1958), these consider on remand. We affirm summary restraints of trade are “conclusively judgment on plaintiffs’ automotive presumed to unreasonably restrain replacement glass conspiracy claim. competition ‘without elaborate inquiry as to the precise harm [it has] caused or the II. Discussion business excuse for [its] use.” Rossi, 156 F.3d at 461 (internal citations and Section 1 of the Sherman Act quotations omitted). provides that “every contract, combination in the form of trust or otherwise, or Here, plaintiffs allege that PPG conspiracy, in restraint of trade or engaged in horizontal price-fixing—i.e., commerce . . . is declared to be illegal.” 15 “where competitors at the same market U.S.C. § 1. Despite its broad language, level agree to fix or control the prices they Section 1 only prohibits contracts, will charge for their respective goods or combinations, or conspiracies that services.” United States v. Brown Univ., 5 unreasonably restrain trade. See InterVest F.3d 658, 670 (3d Cir. 1993). Since at Inc. v. Bloomberg, L.P., 340 F.3d 144, 158 least United States v. Socony-Vacuum Oil (3d Cir. 2003). Certain restraints of trade Co., 310 U.S. 150 (1940), the Supreme are per se unreasonable, while others Court has held that such restraints of trade require more searching analysis under the are per se unreasonable. “Whatever “rule of reason.” Id. at 158-59. economic justification particular price-fixing agreements may be thought to Restraints of trade are per se have,” the Court explained, “the law does unreasonable when they are “‘manifestly not permit an inquiry into their anticompetitive’ or ‘would always or reasonableness. They are all banned a lm o s t a l w a y s t e n d to r e s t r i c t because of their actual or potential threat competition.’” Rossi v. Standard Roofing, to the central nervous system of the economy.” 310 U.S. 150, 224 n.59 (1940); see also Brown Univ., 5 F.3d at 670. 6 We exercise plenary review over the District Court’s grant of summary As a result, plaintiffs need only judgment. See, e.g., InterVest Inc. v. prove that “the defendants conspired among each other and that this conspiracy Bloomberg, L.P., 340 F.3d 144, 158 (3d was the proximate cause of the plaintiff’s Cir. 2003).

8 injury.” InterVest, 340 F.3d at 159. PPG tightly compartmentalize the evidence put does not dispute proximate causation. forward by the nonmovant, but instead Rather, it argues that it did not agree with should analyze it as a whole to see if it its competitors to fix prices. supports an inference of concerted action.” Petruzzi's IGA v. Darling-Delaware, 998 The existence of an agreement is F.2d 1224, 1230 (3d Cir.1993). “[t]he very essence of a section 1 claim.” Alvord-Polk, Inc. v. Schumacher & Co., Although these normal summary 37 F.3d 996, 999 (3d Cir. 1994). The judgment principles apply in antitrust Sherman Act speaks in terms of a cases, an important distinction exists. As “contract,” “combination” or “conspiracy,” the Supreme Court held in Matsushita but courts have interpreted this language to Electric Industrial Co. v. Zenith Radio require “some form of concerted action.” Corp., 475 U.S. 574 (1986), “antitrust law Id. at 999 & n.1. In other words, there limits the range of permissible inferences must be a “‘unity of purpose or a common from ambiguous evidence in a § 1 case.” design and understanding or a meeting of Id. at 588; see also Monsanto Co. v. Spray- minds’” or “‘a conscious commitment to Rite Service Corp., 465 U.S. 752, 763-64 a common scheme.’” Monsanto Co. v. (1984). In other words, certain “inferences Spray-Rite Service Corp., 465 U.S. 752, may not be drawn from circumstantial 764 (1984) (quoting Edward J. Sweeney & evidence in an antitrust case.” Intervest, Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 340 F.3d at 160.7 This higher threshold is 111 (3d Cir. 1980)). imposed in antitrust cases to avoid deterring innocent conduct that reflects When faced with whether a plaintiff enhanced, rather than restrained, has offered sufficient proof of an competition. agreement to preclude summary judgment, a court must generally apply the same summary judgment standards that apply in 7 The “strictures of Matsushita do other contexts. See Intervest, 340 F.3d at not apply” when a plaintiff provides direct 159-60. A court shall render summary evidence of a conspiracy. Petruzzi’s, 998 judgment when the evidence shows “that F.2d at 1233. That is because “no there is no genuine issue as to any material inferences are required from direct fact and that the moving party is entitled to evidence to establish a fact and thus a judgment as a matter of law.” Fed R. Civ. court need not be concerned about the P. 56(c). In making this determination, a reasonableness of the inferences to be court must “view the facts and any drawn from such evidence.” Id. In reasonable inferences drawn therefrom in addition, “the focus in Matsushita was on the light most favorable to the party ambiguous evidence, and what inferences opposing summary judgment.” Intervest, reasonably could be drawn from that 340 F.3d at 160. And a court “should not evidence.” Id. (internal citation omitted).

9 We explored “exactly what the high prices, enter its market and force inferences are circumscribed in a section 1 prices down.” Clamp-All Corp., 851 F.2d case” in our decision in Petruzzi's. There, at 483. Courts and commentators alike w e i d en t i f ie d “ t w o i m p o r t a nt have come to regard predatory pricing as a circumstances underlying the [Supreme] relatively speculative phenomenon, Court’s decision in Matsushita”: (1) “the particularly when its success requires plaintiffs’ theory of conspiracy was collusion among multiple firms. See implausible”; and (2) “permitting an Brooke Group Ltd. v. Brown & inference of antitrust conspiracy in the Williamson Tobacco Corp., 509 U.S. 209, circumstances ‘would have the effect of 226-27 (1993). Inferences about predatory deterring significant procompetitive pricing are also inherently weak because conduct.’” 998 F.2d at 1232 (quoting In re the behavior of firms engaged in predatory Coordinated Pretrial Proceedings in pricing would largely mirror how firms in Petroleum Prods. Antitrust Litig., 906 F.2d a competitive market act: by cutting prices. 432, 439 (9 th Cir. 1990)) (emphasis in See Matsushita, 475 U .S. at 594 Petruzzi’s). In other words, “the Court (“[C]utting prices in order to increase stated that the acceptable inferences which business often is the very essence of can be drawn from circumstantial evidence competition.”). Thus inferring from vary with the plausibility of the plaintiffs’ ambiguous evidence that firms are theory and the dangers associated with engaging in predatory pricing would “chill such inferences.” Id.; see also Matsushita, procompetitive behavior.” Petruzzi’s, 998 475 U.S. at 587 (“[I]f the factual context F.2d at 1232. renders [the plaintiff's] claim implausible— if the claim is one that In Petruzzi’s, by contrast, the simply makes no economic sense—[a plaintiff alleged that the defendants plaintiff] must come forward with more conspired to alloc ate cu sto mers . persuasive evidence to support [its] claim “[P]laintiff’s theory of conspiracy is not than would otherwise be necessary.”) implausible,” we explained, rather it made (citations omitted). “perfect economic sense.” 998 F.2d at 1232. In addition, the challenged activities The plaintiffs in Matsushita alleged could not reasonably be perceived as that the defendants conspired to engage in procompetitive. Id. (“After all, refusing to predatory pricing, the practice by which “a bid on accounts hardly can be labeled as firm sets its prices temporarily below the ‘very essence of competition.’”) costs, with the hope that the low price will (quoting Matsushita, 475 U.S. at 594). As drive a competitor out of business, after a result of those circumstances, we which the ‘predatory’ firm will raise its concluded that “more liberal inferences prices so high that it will recoup its from the evidence should be permitted temporary losses and earn additional than in Matsushita because the attendant profit, all before new firms, attracted by dangers from drawing inferences

10 recognized in Matsushita are not present.” approximate—and cannot be mistaken Id.; see also Intervest, 340 F.3d at 162; as—competitive conduct. Alvord-Polk, Inc., 37 F.3d at 1001 (“[T]he meaning we ascribe to circumstantial Yet despite the absence of the evidence will vary depending on the Matsushita Court’s concerns, this Court challenged conduct.”).8 and others have been cautious in accepting inferences from circumstantial evidence in Here, like in Petruzzi’s, plaintiffs’ cases involving allegations of horizontal theory of conspiracy—an agreement price-fixing among oligopolists. See among oligopolists to fix prices at a Williamson Oil Co. v. Philip Morris USA, supracompetitive level—makes perfect R.J., 346 F.3d 1287, 1300-01 (11th Cir. economic sense. In addition, absent 2003); Blomkest Fertilizer, Inc. v. Potash increases in marginal cost or demand, Corp. of Saskatchewan, 203 F.3d 1028, raising prices generally does not 1042-43 (8 th Cir. 2000); In re Baby Food Antitrust Litigation, 166 F.3d 112, 121-22 (3d Cir. 1999); Clamp-All Corp. v. Cast 8 Iron Soil Pipe Institute, 851 F.2d 478, 484 As one prominent antitrust (1 st Cir. 1988); Apex Oil Co. v. DiMaurio, commentator has explained: 822 F.2d 246, 253-54 (2d Cir. 1987); see also Petruzzi’s, 998 F.3d at 1232-33.9 The Matsushita spoke in the basis for this circumspect approach is the context of a highly theory of “interdependence.” See Donald improbable twenty-year- F. Turner, The Definition of Agreement long predatory pricing Under the Sherman Act: Conscious conspiracy and required Parallelism and Refusals to Deal, 75 Harv. high-quality evidence to L. Rev. 655, 662-63 (1962). permit such a conspiracy to be presented to a jury. . . . However, Matsushita itself said little about proof 9 requirements in a case A leading antitrust scholar, who where underlying structural now authors the Areeda treatise, has evidence indicates that the characterized these cases at least in part as offense is quite plausible “an unfortunate misinterpretation” of and would be profitable for Matsushita. Herbert Hovenkamp, The the defendants. Rationalization of Antitrust, 116 Harv. L. Rev. at 925 (“[U]nfortunately, many courts Herbert Hovenkamp, The Rationalization have read M atsushita as requiring a certain of Antitrust, 116 Harv. L. Rev. 917, 925- quantum evidence of verbal agreement 26 (2003) (reviewing Richard A. Posner, before summ ary judgment can be Antitrust Law (2d ed. 2001)) . avoided.”).

11 The theory of interdependence engaging in any overt concerted action. posits the following: In a market with We quote the Areeda treatise at length: many firms, the effects of any single firm’s price and output decisions “would be so The first firm in a five-firm diffused among its numerous competitors oligopoly, Alpha, may be that they would not be aware of any eager to lower its price change.” Phillip E. Areeda & Herbert somewhat in order to Hovenkamp, Antitrust Law ¶ 1429, at 206 expand its sales. However, it (2 nd ed. 2000). In a highly concentrated knows that the other four market (i.e., a market dominated by few f ir m s would proba bly firms), however, any single firm’s “price respond to a price cut by and output decisions will have a noticeable reducing their prices to impact on the market and on its rivals.” Id. maintain their previous Thus when a firm in a concentrated market market shares. Unless Alpha (i.e., an “oligopolist”) is deciding on a believes that it can conceal course of action, “any rational decision its price reduction for a time must take into account the anticipated or otherwise gain a reaction of the other [] firms.” Id. at 207.10 substantial advantage from being the first to move, the The result, according to the theory price reduction would of interdependence, is that firms in a merely reduce Alpha’s concentrated market may maintain their profits and the profits of the prices at supracompetitive levels, or even other firms as well. raise them to those levels, without Such “ o l i g o p o li s t i c rationality” cannot only 10 forestall rivalrous price “For example, in a market of one reductions, it can also hundred sellers of equal size, an expansion provide for price increases in output of 20 percent by one of them through, for example, price will result in an average fall in output of leadership. If the price had only about .2 percent for each of the for some reason been less others, so a seller need not worry in than X [the price a making his pricing decisions about the monopolist would charge to reactions of his rivals.” Richard A. Posner, maximize profits], firm Beta Antitrust Law 56 (2nd ed. 2001). But if might announce its decision “there are three sellers of equal size, a 20 to raise its price to X percent expansion in the sales of one will effective immediately, or in cause the sales of each of the others to fall several days, or next season. by an average of 10 percent—a sales loss The other four firms may the victims can hardly overlook.” Id.

12 each choose to follow 1432f, at 232-36; but see Posner, supra, at Beta’s lead; if they do not 98. Indeed, the Supreme Court has increase their prices to described conscious parallelism in dicta as Beta’s level, Beta may be “the process, not in itself unlawful, by forced to reduce its price which firms in a concentrated market to their level. Because might in effect share monopoly power, each of the other firms setting their prices at a profit-maximizing, knows this, each will supracompetitive level by recognizing consider whether it is their shared economic interests and their better off when all are interdependence with respect to price and charging the old price or output decisions.” Brooke Group Ltd. v. price X. They will Brown & Williamson Tobacco Corp., 509 obviously choose X when U.S. 209, 227 (1993) (emphasis added). they believe that it will m aximize indu stry As a result, we have required that profits. plaintiffs basing a claim of collusion on inferences from consciously parallel Id. at 207-08. behavior show that certain “plus factors” also exist. See In re Baby Food, 166 F.3d Despite the noncompetitive nature at 122; Petruzzi’s, 998 F.2d at 1243.11 of such conduct, which we have come to Existence of these plus factors tends to call “conscious parallelism,” we have held ensure that courts punish “concerted that the Sherman Act does not proscribe it. action”—an actual agreement—instead of See In re Baby Foods, 166 F.3d at 121-22. the “unilateral, independent conduct of There are two primary bases for this competitors.” In re Baby Food, 166 F.3d at approach, both embodied in a line of scholarship that started with Donald Turner in 1962 and continued in large part 11 Thus in order to establish illegal in Phillip Areeda’s influential antitrust concerted action based on “consciously treatise. First, there exists the notion that parallel behavior, a plaintiff must show (1) interdependent behavior is not an that the defendants’ behavior was parallel; “agreement” within the term’s meaning (2) that the defendants were conscious of under the Sherman Act. See Turner, supra, each other’s conduct and that this at 663-65; but see Posner, Antitrust Law, awareness was an element in their supra, at 94-95. Second, Turner and decision-making process; and (3) certain Areeda argued that judicial remedies are ‘plus’ factors.” Petruzzi’s, 998 F.2d at incap able o f a d d r e s si n g th e 1242, quoted in Intervest, 340 F.3d at 165. anticompetitive effects of consciously It is undisputed that the first two parallel pricing. Turner, supra, at 669-71, circumstances exist here, and we therefore Areeda, Antitrust Law, supra, ¶¶ 1432d5- concentrate on the third and final.

13 122. In other words, the factors serve as irrational assuming that the defendant proxies for direct evidence of an operated in a competitive market. In a agreement. competitive industry, for example, a firm would cut its price with the hope of The question then becomes, what increasing its market share if its are “plus factors” that suffice to defeat competitors were setting prices above summary judgment? There is no finite set marginal costs. Put differently, in of such criteria; no exhaustive list exists. analyzing this factor a court looks to See Id.; Areeda, supra, ¶ 1434a, at 241-42. “evidence that the market behaved in a We have identified, however, at least three noncompetitive manner.” Id. such plus factors: (1) evidence that the defendant had a motive to enter into a These two plus factors are price fixing conspiracy; (2) evidence that important to a court’s analysis, because the defendant acted contrary to its their existence tends to eliminate the interests; and (3) “evidence implying a possibility of mistaking the workings of a traditional conspiracy.” Petruzzi’s, 998 competitive market—where firms might F.2d at 1244. increase price when, for example, demand i n c r e a s e s — w i t h i n t e rd e p e n d e n t , In the context of parallel pricing, supracompetitive pricing. But since these the first two factors largely restate the factors often restate interdependence (at phenomenon of interdependence. We least in the context of an alleged price- candidly acknowledged as much in In re fixing conspiracy), they m ay not Baby Food, 166 F.3d at 122. See also suffice—by themselves—to defeat Areeda, supra, ¶ 1434c1, at 245 summary judgment on a claim of (“‘[C]onspiratorial motivation’ and ‘acts h o r i z o nt a l p r i c e - fi x i n g a m o ng against self-interest’ often do no more than oligopolists. 1 2 The most important restate interdependence.”); Posner, supra, at 100. Evidence that the defendant had a motive to enter into a price fixing 12 Neither factor is “strictly conspiracy means evidence that the necessary.” In re High Fructose Corn industry is conducive to oligopolistic price Syrup Antitrust Litigation, 295 F.3d 651, fixing, either interdependently or through 655 (7th Cir. 2002). Thus this type of a more express form of collusion. In other economic evidence is neither necessary words, it is “evidence that the structure of nor sufficient to conclude that sufficient the market was such as to make secret proof of an agreement exists to preclude price fixing feasible.” In re High Fructose summary judgment, but it is relevant and Corn Syrup Antitrust Litigation, 295 F.3d courts should as a general matter consider 651, 655 (7th Cir. 2002). Evidence that the it. defendant acted contrary to its interests means evidence of conduct that would be We also observe that certain types

14 evidence will generally be non-economic concentrated; there are a handful of sellers evidence “that there was an actual, and there is no “fringe market” of smaller manifest agreement not to compete.” Id. at firms. Flat glass is sold primarily on the 661. That evide nce m ay involv e basis of price, and although it may vary in “customary indications of traditional tint or thickness it is generally a conspiracy,”or “proof that the defendants standardized product. Importantly, the got together and exchanged assurances of demand for flat glass was in decline during common action or otherwise adopted a the start of the 1990s and PPG and its common plan even though no meetings, competitors had e xces s cap acity. conversations, or exchanged documents Normally, reduced demand and excess are shown.” Areeda, supra, ¶ 1434b, at supply are economic conditions that favor 243; see also Petruzzi’s, 998 F.2d at 1244. price cuts, rather than price increases. There are also high fixed costs in the We turn to whether plaintiffs here industry. See App. 635. Suffice it to say, have adduced sufficient evidence of plus the flat glass industry is in many respects a factors to preclude summary judgment on text book example of an industry their two separate antitrust claims. susceptible to efforts to maintain supracompetitive prices. See generally A. Flat Glass Richard A. Posner, Antitrust Law 69-79 (2d ed. 2001). PPG concedes as much. See We first note that plaintiffs have Tr. of Oral Argument 21-22. offered substantial evidence tending to show that PPG had a motive to enter into Similarly, there is evidence in the a price fixing conspiracy because record indicating that the price increases conditions existed in the flat glass industry PPG and its competitors implemented that were conducive to collusion. As we were inconsistent with competition in the have described, the flat glass market is industry. In other words, there is evidence of anti-competitive behavior and that PPG acted “contrary to its interests.” The entry of Cardinal into the market, for example, of “actions against self interest” may do tends to indicate that flat glass producers m o r e t h a n r e s t a t e e co n o m i c were charging supracompetitive prices. interdependence. For example, non-price See Posner, supra, at 89 (“The charging of acts against self-interest, such as a monopoly price will attract new apparently unilateral exchanges of competitors to a market who perceive confidential price information, cannot opportunities for unusual profits by reason simply be explained as a result of of the abnormally high price.”). More oligopolostic interdependence. See important, no evidence suggests that the Blomkest Fertilizer, Inc., 203 F.3d at increase in list prices was correlated with 1046-47 (Gibson, J., dissenting). any changes in costs or demand. Indeed, in

15 July of 1992 a PPG executive noted that argues that plaintiffs cannot establish “[n]o one . . . believes that demand will be liability as a matter of law for that reason, robust enough to support a price increase it is simply wrong.13 “An agreement to fix without significant discipline on the part of all float producers.” App. 5841. After the flat glass producers implemented a price 13 PPG argued before the District increase in September of 1992, the same Court, for example, that “controlling case executive noted that “[b]asic supply and law precludes an antitrust plaintiff from demand do not support this [1992] avoiding summary judgment by reliance increase.” App. 5908. on evidence relating to list prices.” App. 667. PPG misstates the law. Declining All the above indicates that the transaction prices will tend to support a price increases were collusive, but not conclusion that competitors did not enter whether the collusion was merely into an agreement to fix prices where the interdependent or the result of an actual other record evidence also fails to agreement. We therefore consider whether sufficiently prove an agreement. See, e.g., sufficient “traditio nal” conspiracy Clamp-All Corp., 851 F.2d at 484 (“[T]he evidence exists from which a reasonably fact that [the defendants] often set prices jury could infer that an agreement existed. that deviated from their price lists helps Plaintiffs argue that evidence that PPG’s support the inference that the similarity of competitors entered into an agreement—at price lists reflects individual decisions to least amongst themselves—tends to show copy, rather than any more formal pricing that PPG too entered the same agreement. agreement.”). Our decision in In re Baby They also argue that other circumstantial Food is not to the contrary. In the specific evidence shows—or at least a finder of factual setting of that case—involving fact could infer—that PPG agreed to raise “hundreds of products” and multiple the price of flat glass three specific times: complicated discounts and price June-July of 1991, September-October of promotions—we concluded that plaintiffs’ 1992, and May-June of 1993. and their experts’ use of list price data was insufficient to show that parallel pricing As a preliminary matter, however, had occurred. 166 F.3d at 128-29. we address an argument that pervades Significantly, the defendants made PPG’s briefs, both before us and before the “similar pricing decisions” 15.5% of the District Court. PPG contends that time and priced their products differently regardless of the flat glass producers’ list 84.5% of the time. Id. at 128. The District prices, the actual transactional prices—that Court therefore concluded, in a portion of is, the prices at which flat glass producers its decision that we cited with approval, actua lly sold their pro duct t o that the plaintiffs were “unable to show customers—declined during the period of that defendants’ prices moved in a parallel the alleged conspiracy. Insofar as PPG fashion. That is true both for list prices

16 prices is . . . a per se violation of the “leniency to corporations reporting their Sherman Act even if most or for that illegal antitrust activity at an early stage, if matter all transactions occurred at lower they meet certain conditions.” App. 6459. prices.” In re High Fructose Corn Syrup, Among the policy’s requirements was that 295 F.3d at 656. the cooperating corporation “report[] the wrongdoing with candor and completeness PPG does not—it cannot—seriously and provide[] full, continuing and contend that the flat glass producers complete cooperation that advances the increased their list prices with no intention Division in its investigation.” App. 6460. of affecting transaction prices. “[S]ellers would not bother to fix list prices if they LOF sought leniency under the thought there would be no effect on policy in 1995, but the Antitrust Division transaction prices.” Id. Thus declining concluded that LOF had not been transaction prices despite an agreement to sufficiently forthcoming with information fix list prices would constitute a failed of its wrongdoing. “We are surprised that attempt to fix prices. But a horizontal you consider our proffer, which described agreement to fix prices need not succeed an agreed upon, across the board price for sellers to be liable under the Sherman increase for the entire United States,” LOF Act; it is the attempt that the Sherman Act responded, “to be less than a ‘full and proscribes. See Socony-Vacuum Oil Co., complete disclosure.’” App. 5003. 310 U.S. at 224 n.59. LOF’s response to the Antitrust 1. Evidence of an Agreement Division does not directly state that it Among PPG’s Competitors agreed with PPG to raise prices. But a reasonable factfinder could infer such an The District Court concluded that agreement from LOF’s reference to an the record “undoubtedly evidences that “across the board” price increase. Black’s several of the settling defendants Law Dictionary defines “across-the-board” conspired to fix prices.” App. 46. We as “[a]pplying to all classes, categories, or agree. The most compelling basis for this groups.” Black’s Law Dictionary 24 (7th conclusion is a document that LOF ed. 1999). One reasonable interpretation of submitted to the Department of Justice’s LOF’s statement is that LOF agreed with Antitrust Division in 1995. one or more competitor to increase the price of all types of flat glass. Another is The Antitrust Division had a that LOF agreed with all its competitors to “Corporate Leniency Policy” in effect at increase prices on one or more category of the time under which the DOJ accorded flat glass. And yet another is that LOF

and transaction prices.” Id.

17 agreed with all its competitors to increase 2. The June-July 1991 Increase the price of all types of flat glass.14 On June 7, 1991, AFG announced PPG argues that under our decision that it was raising the price of its flat glass. in In re Baby Food, “the fact that some The price increase was to become effective other glass producers may have attempted on July 15, 1991. App. 3552. Neither PPG to fix prices in this case is irrelevant.” PPG nor any of AFG’s other competitors raised Brief 82. We disagree. Even if LOF’s their prices in response.15 statement—and any other evidence—tends to show that PPG’s competitors agreed Also on June 7, 1991, top among themselves to raise prices but does executives from Pilkington’s various not directly implicate PPG, it is surely not businesses (including LOF) met in the irrelevant to whether PPG entered an United Kingdom. Minutes from the agreement. If six firms act in parallel meeting state: “There were indications that fashion and there is evidence that five of a price increase of approximately 8% the firms entered into an agreement, for would hold” in the United States. App. example, it is reasonable to infer that the 3868. sixth firm acted consistent with the other five firms’ actions because it was also a A week later, on June 13, 1991, two party to the agreement. That is especially of LOF’s board members (Tomoaki Abe so if the sister firm’s behavior mirrored and Mr. M atsumora ) traveled to that of the five conceded coconspirators. Pennsylvania to play golf with Robert In some circumstances, to be sure, such Duncan, the Vice President of PPG’s Glass evidence might not be sufficient alone to Group. The night before they played golf, defeat summary judgment. See In re Citric Abe’s administrative assistant sent him a Acid Litig., 191 F.3d 1090, 1106 (9 th Cir. fax relating a message from Glen 1999). But we need not determine whether Nightingale, the Pilkington executive it can be here, because plaintiffs argue that based in London with responsibility for additional evidence supports their LOF. 16 The fax stated: “M r. Nightingale contention that PPG entered into an agreement. 15 AFG raised the price of its “pattern glass” by 4%, its “thin glass products” by 5%, its “gray and bronze thicknesses” by 9%, and its “4mm-12mm” 14 PPG does not argue that LOF’s also by 9%. App. 3552. proffer is not admissible, and we therefore 16 assume that it is for purposes of this LOF’s proffer to the DOJ decision. In any case, however, we would identified Nightingale as an individual reach the same result even if we did not “involved in the 1992 activities.” App. consider LOF’s proffer. 5003. It also stated that Nightingale had

18 requests that you call him on Friday PPG’s competitors had actually matched morning [June 14] before you leave your PPG’s price increase.17 hotel room—it will only take two minutes. He seemed rather firm. . .” App. 3890. On July 2, 1991, a Ford executive sent an email to his regional managers Two weeks later, on June 28, 1991, stating that “[w]e must have total support PPG announced a 7.5-9% price of this industry pricing action and focus increase—an amount different than the our attention on implementing the price price increase AFG announced on June 7, increase in an intelligent manner. The but notably approximately 8%— to be actions being taken are important to the effective July 29, 1991. App. 5833. PPG’s industry and will improve the commercial competitors eventually followed suit with glass profitability.” App. 3553. As of that virtually identical price increases, to be day, however, neither LOF nor Guardian effective either July 29 or August 1, 1991. had announced a price increase. They Ford announced its price increase on July announced increases on July 8 and July 9, 1, app. 3472; LOF announced its price respectively. increase on July 8, app. 3474; Guardian announced on July 9, app. 3482; and AFG A PPG internal document dated rescinded its June 7 increase and September 6, 1991 stated that the “price announced a price increase in line with increase was implemented without any PPG’s on July 10, app. 3551. problems.” App. 5831. A similar document, dated September 3, 1991, stated A copy of PPG’s June 28, 1991 that “[t]he industry price increase was announcement produced from the files of implemented in August by all primary John Frazier (manager of PPG’s Knoxville, Tennessee branch) contains a typewritten note on it stating: “ALL 17 PPG on the other hand argues OTHER MAJOR GLASS SUPPLIERS that there is evidence suggesting that ARE CONCURRENTLY RAISING someone typed the note on the June 28 PRICES THE SAM E PERCENTAGE.” announcement after its competitors App. 5833. Evidence suggests that Frazier announced their price increases. PPG is received this document, together with the undoubtedly correct; this document’s time typewritten notation, sometime before frame is a disputed fact and a finder of fact could reasonably reach the conclusion PPG urges us to draw. But a fact finder “discussions with [an AFG executive] that could also reasonably conclude the resulted in a price move.” App. 5004. opposite, and it is black letter law that we Nightingale invoked his Fifth Amendment must draw all reasonable inferences in privilege against self incrimination when plaintiffs’ favor at this point in the plaintiffs sought to depose him. proceedings.

19 manufacturers, although varying degrees 1992, effective Oct. 1, 1992, with of protection were offered by our increases of 9% on clear and tinted glass competition.” App. 5731. An internal LOF and 5% on “Eclipse” glass. App. 3628. A document from November of 1991, few weeks later, on July 24, 1992, Joseph however, stated that the “[p]rice increase Hudson— PPG’s Eastern Zone Manager of 8/19/91 is unraveling at several key for Flat Glass Products, app. 5908— acco unts d u e t o A F G /G laverbec/ noted: “No one, however, believes that Guardian’s failure to hold the line on demand will be robust enough to support a pricing and PPG’s price protected annual price increa se w ithout s ignificant contracts through the year end.” App. discipline on the part of all float 1712. producers.” App. 5841.18

To summarize: AFG raised its prices, but no one followed suit. LOF 18 A fuller excerpt from the cited executives expressed their opinion at a portion of the record states: board meeting that an 8% increase in flat glass prices would “hold.” Two board Glaverbec appears to have members met with a PPG executive one quieted down just a bit in week later. Two weeks after the meeting, terms of new aggressive PPG raised its flat glass prices by pricing, seemingly for the essentially the same amount that LOF first time to be content with executives thought would “hold.” An current absurdly low prices. internal PPG memorandum, which might Significantly, for the first have been produced prior to any other firm time, Glaverbec is reported announcing an increase in its flat glass to have said that their tank is prices, states that other flat glass producers sold out. All producers, were “concurrently raising prices the same including PPG, continue to percentage.” The flat glass manufacturers react sele ctive ly to initially felt that the price increase had Glaverbec’s pricing and gone successfully, but they later felt it was attempt to protect selected unsuccessful because at least some of customers and selected them failed to “hold the line.” markets.

3. The September-October 1992 Discussion and rumors Price Increase surrounding a possible price increase later in the year are A July 1, 1992 entry in the pocket widespread in the market calendar for a Ford Regional Sales place. No one, however, Manager indicated that LOF was going to believes that demand will be announce a price increase on Sept. 22, robust enough to support a

20 In September of 1992, however, the Fair, I also had the competitors announced a 5-9% price opportunity to meet with increase: AFG announced its price Russ Ebeid of Guardian increase on September 15, 1992, to be who assured me that they effective October 1, app. 3545; Guardian were fully supportive of the announced a price increase on September price increase proposition. 21, to be effective October 9, app. 3547; Clearly, this could make LOF announced on September 22, to be quite a difference to your effective October 1, app. 3476; and both results if the price increase PPG and Ford announced their prices can stick. increases on September 23, to be effective October 12, app. 3475, 3549. On App. 3895. This excerpt was removed September 24, AFG changed the effective from a later version of the letter. App. date of its price increase from October 1 to 7194.19 October 12. App. 3550. Finally, during the same time period Between September 22 and in September of 1992, PPG’s Hudson September 26, 1992, soon after the price reiterated his July comment that a price increases were announced, sen ior increase would not be consistent with executives from the various competitors market conditions. According to Hudson, (PPG, Ford, Guardian, and Pilkington) “[b]asic supply and demand do not support attended a “Glass Fair” meeting in this [1992] increase.” App. 5908.20 Germany. A Pilkington executive reported the following in a letter to LOF’s Skeddle: 19 Even if this statement does not I was pleased to learn during unambiguously tend to show that flat glass the Glass Fair that an producers agreed ahead of time to raise attempt to raise prices by prices, it at least tends to show that there 9% in the United States had was an agreement to maintain higher been initially supported by prices despite competitive demands (i.e. to a ll s u p p l ie r s i n t h e “make it stick”). marketplace. During the 20 The full excerpt from the record reads:

price increase Certainly the hot topic on without significant the pricing front is the discipline on the part industry increase announced of all float producers. during September to be effective in October. Basic App. 5841. supply and demand do not

21 To summarize: A Ford Regional or June [of 1993] of about 5 or 6%.” App. Sales Manager was aware of the precise 3720, 3456, 3458-59. Teat reported this to date when LOF was going to announce a superiors at LOF with pricing authority. price increase almost three months ahead App. 3721-23, 3456-58.21 of time, as well as the precise amounts of the increase. A PPG executive believed LOF’s preliminary budget for fiscal that the market would not support a price year 1994, dated January 21, 1993, refers increase. Nonetheless, PPG and its to a “May-June ‘93 price increase.” App. competitors raised their prices by the same 6432. Similarly, an LOF “CEO’s Review amount, all within eight days of each Report” from March 30, 1993 stated that other. Soon after the price increases were there would be “a U.S. domestic price announced, executives from the various increase in the May-June timeframe.” App. flat glass producers attended a trade show 4031.22 And LOF’s revised budget (dated at which a executive from Guardian assured an executive from Pilkington that Guardian was “fully supportive of the 21 price increase proposition.” Kennedy was an officer and director of AFG. Although Teat did not 4. The May-June 1993 have pricing authority, his precise position Price Increase at LOF is unclear from the record. 22 A fuller excerpt stated: In December of 1992, AFG’s Roger Kennedy told LOF’s Roger Teat that AFG A price increase has been was “considering another increase in May initiated in Eastern Canada by PPG to be effective March 22; 7% increase for support this increase, all clear, uncased product so it will require (2.3mm through 6.0mm) discipline on the part and a 9% increase for clear o f e a c h c a s e d p r o d u c t . It is manufacturer. anticipated that this increase G l a v e r b e c , will be a lead into a U.S. Guardian’s mirror domestic price increase in operations and the May-June timeframe. AFG’s distribution LOF is follow ing the arm are keys to the Canadian lead and including success of the heavy clear and tint product increase. with the increase.

App. 5908. App. 4031.

22 April 5, 1993) also referred to a “May- After the price increases went into June price increase.” App. 4669.23 effect, John M usser (from PPG) reported that “[t]he price increase of 5.5% A few months later, on April 16, announced in early May by all major float 1993, A F G fa xe d t o P P G a producers for an implementation on or “prepublication” copy of its May 17, 1993 about June 7 has had the effect of 5.5% price increase announcement (to be stabilizing prices.” App. 5906.25 In a effective in June). App. 6369.24 It also faxed a copy to Guardian. App. 3711. 25 A fuller excerpt stated: PPG announced a 5.5% price increase on May 12, 1993, almost a week The price increase of 5.5% before AFG was going to announce its announced in early May by price increase. App. 5840. The rest of all major float producers for PPG’s competitors quickly followed suit. an implementation on or LOF, AFG, and Ford announced five days about June 7 has had the later, on M ay 17, 1993. App. 3477, 3708, effect of stabilizing prices. 3478. Guardian announced on May 19, Overall customer reaction to 1993. App. 6105. the increase has been favorable, particularly in the mirror and distributor/ 23 In addition, Ford’s business plan fabricator segments. Sash (dated April 29, 1993) also referred to a accounts who are not price 5% price increase. App. 3698. Under the protected are resisting the heading “Possible Opportunities and increased [sic], to a degree. Improvements,” it stated: “A 5% market The modest amount of the price increase spurred by cyclical recovery increase, the perceived cost with increased industry capacity utilization justification for the increase, would increase profits by almost $3 and the firmness to date of million.” App. 3697-98. a l l f lo a t p r o d u ce r s, however, are all positive 24 PPG urges that AFG did not send factors which project that the fax on April 16, 1993, arguing that the the announced prices will most likely explanation for the date’s hold. The highest degree of appearance on the fax is that the fax uncertainty resides on the machine malfunctioned. PPG is free to West Coast, which has the make this argument to a jury, but surely a lowest level of industry reasonable finder of fact could infer that capacity utilization. the date on the fax means that it was sent on that day. App. 5906.

23 similar vein, an LOF report (dated June 21, that would enable a reasonable jury to 1993) stated: “Price increase is in effect reject the hypothesis that the defendants from all major manufacturers. We are foreswore price competition without monitoring the market to make sure that all actually agreeing to do so.” In re High stick to the rules and will report any and Fructose Corn Syrup, 295 F.3d at 661 all information we hear about.” App. 3732. (citing Matsushita, 475 U.S. at 488).

PPG’s Central Zone Manager, First, there is the evidence— Thomas Merlitti, stated on June 25, 1993 including LOF’s assertion that there was that “[t]he price increase implemented in an “across the board” agreement to June remains firmly in place as all major increase prices—that PPG’s competitors flat glass producers are holding firm.” entered into an agreement. And viewed App. 3507. And Hudson of PPG reported: collectively and holistically, there is “The increase which was effective June 7 evidence tending to show that PPG was a has been a nearly complete success.” App. party to an agreement to raise the price of 5794. flat glass on three occasions.

To summarize: AFG and LOF PPG urges us to take a different discussed a May-June 1993 price increase approach. It appears to propose that we during the preceding December, and LOF consider each individual piece of evidence accounted for such an increase in its and disregard it if we could feasibly forthcoming budget. In April, AFG faxed interpret it as consistent with the absence to PPG a copy of the increase it planned to of an agreement to raise prices. With announce on May 17. PPG announced an regard to the announcement that stated “all identical increase on May 12, and the rest oth er major glass suppliers a re of the flat glass producers followed with concurrently raising prices by the same identical price increases. LOF was percentage,” for example, PPG argues that “monitoring the market to make sure that the “facts suggest that the notation was all stick to the rules.” The flat glass placed on the announcement after all glass producers all “held firm,” and executives produc ers had is sued their from the firms generally considered the announcements.” PPG Br. 25 (emphasis price increase a “success.” added). Similarly, PPG contends that the “most likely explanation” for the date that 5. Analytical Summary appears on an AFG price announcement found in PPG’s files “is that the date stamp The above evidence is sufficient to mechanism malfunctioned.” PPG Br. 43. provide a finder of fact with a basis to We echo the Seventh Circuit’s admonition reasonably conclude that PPG agreed with in In re High Fructose Corn Syrup that the the other flat glass producers to raise “statement of facts in the defendants’ brief prices. Put differently, there is “evidence combines a recital of the facts favorable to

24 the defendants with an interpretation plans. Notably, these scraps of evidence of favorable to them of the remaining foreknowledge were not correlated to any evidence; and that is the character of a trial actual concerted price increase activity brief rather than of a brief defending a among all competitors. grant of summary judgment.” 295 F.3d at 655. PPG’s arguments are well-suited for We made two salient points in an argument before a jury, but they are reviewing this evidence and rejecting the irrelevant to our consideration in the inference of agreement. First, we noted present posture of this case. that price discussion among low level sales people has little probative weight; we Alternatively, PPG appears to distinguished the far different situation contend that we should disregard certain where upper level executives have secret categories of evidence, from various conversations about price. Id. at 125 & n.8 periods of time, because such evidence (“Evidence of sporadic exchanges of shop does not in isolation lead inexorably to the talk among field sales representatives who conclusion that PPG entered into an lack pricing authority is insufficient to agreement. Tr. of Oral Argument 25. PPG survive summary judgment.”). Second, and argues, for example, that competitors’ more important, we emphasized that “there possession of each others’ price increase must be evidence that the exchanges of announcements or meetings among information had an impact on pricing competitors’ executives cannot suffice to decisions.” Id. at 125. The reason for this preclude summary judgment. To be sure, requirement is that exchanges of price the mere presence of such evidence does information may be compatible with not require a court to deny summary competition, because they may “‘increase judgment. In In re Baby Food, we economic efficiency and render markets observed that “[w]e do not believe that the more, rather than less, competitive.’” Id. m e r e p ossession o f com petitiv e (quoting United States v. United States memoranda is evidence of concerted Gypsum Co., 438 U.S. 422, 443 n.16 action to fix prices.” 166 F.3d at 126. But (1978)). The In re Baby Food plaintiffs the price-exchange evidence in In re Baby simply could not correlate information Food was far less compelling than in this exchanges with specific collusive case. The In re Baby Food plaintiffs relied behavior. Rather, they made the more upon testimony of competitors’ price amorphous claim that the exchanges of information gathered by low-level sales information “impacted the market as a employees in unsystematic fashion. whole.” Id. Plaintiffs pointed to a few competitors’ memos in sales files, but there was no The exchanges of information here, evidence of how the documents got there. by contrast, are qualitatively different from Additional evidence documented some those in In re Baby Food, particularly awareness of competitors’ price increase when considered in the context of other

25 evidence. First, there is evidence tending price behavior were followed by actual to show that the exchanges occurred at a price changes. The inference of concerted higher level of the flat glass producers’ rather than interdependent action is structural hierarchy. Second, and more therefore stronger. In other words, these importantly, a finder of fact could facts take the exchanges of pricing reasonably infer that the flat glass information outside the realm of “mere producers used the information to possession.” In re Baby Food, 166 F.3d at implement collusive price increases; that 126. is, “the exchanges of information had an impact on pricing decisions.” A court must We need not speculate as to look to the evidence as a whole and whether something less than the evidence consider any single piece of evidence in in this record—two rate increases, for the context of other evidence. See Big instance, rather than three— would suffice Apple BMW, Inc. v. BMW of North to deny summary judgment. The evidence America, Inc., 974 F.2d 1358, 1364-65 (3d here, in its totality, is sufficient to go to a Cir. 1992), cited in In re Baby Food, 166 jury. F.3d at 124. So, for example, there is evidence that AFG faxed to PPG a copy of B. Automotive Replacement Glass a planned future increase that it had not announced publicly, PPG announced an As described above, PPG and other identical increase before AFG, and the rest automotive replacement glass producers of the flat glass producers followed with supplied NAGS with their truckload list identical price increases. It would take no prices for various automotive replacement stretch of the imagination for a fact finder glass products. NAGS would select a to infer from this evidence—one piece of particular truckload price—usually the which is PPG’s possession of a truckload price of the identical OEM glass “competitive memoranda”—that PPG product—to devise recommended retail engaged in concerted action to fix prices. prices for the products. NAGS devised the recommended price by using a particular In sum, here the exchanges of “multiplier” for each type of product.26 information are more tightly linked with The glass producers knew the multipliers concerted behavior and therefore they NAGS used, and were able to calculate appear more purposive. Several of the key backwards to the truckload price that documents emphasize that the relevant NAGS had utilized. The producers would price increases were not economically then align their truckload list prices with justified or supportable, but required competitors to hold the line. Others suggest not just foreknowledge of a single 26 The multiplier for domestic competitor’s pricing plans, but of the plans windshields, for example, was 4.06. App. of multiple competitors. Predictions of 2980.

26 the price that NAGS had used. As a result, devised depicts the process. It indicates the automotive replacement glass that producers gave their truckload prices producers often increased their prices in to NAGS, NAGS selected a particular parallel fashion.27 truckload price, the producers issued a “new pricing schedule adjusted to Plaintiffs argue that the evidence NAGS,” and as a result “industry pricing shows that PPG and other automotive stabilize[d].” App. 4939. replacement glass producers agreed to raise their prices. They provide evidence We understand why the NAGS that although it was against PPG’s official Calculator would raise suspicion in policy, PPG provided its truckload pricing plaintiffs’ minds, and why plaintiffs would information to NAGS. Plaintiffs also refer seek discovery regarding PPG’s use of the to the NAGS website, which at one point calculator. Cf. Areeda, supra, ¶ 1435g, at stated: “[M]anufacturers were in conflict 264-65 (discussing the use of “pricing over their published list prices. As a manuals”). But publication of pricing neutral party NAGS was asked to assign information can have a pro-competitive list prices to NAGS part numbers, effect. As we note above, we should establishing the NAGS List Price.” App. therefore hesitate to rest on inference of 6444-45.28 In addition, a chart that LOF improper collusion from this ambiguous, or even pro-competitive, fact. See, e.g., In 27 re Baby Food, 166 F.3d at 126; Petruzzi’s, PPG, Ford and LOF increased 998 F.2d at 1232. After conducting the price of windshields by 7% and discovery, plaintiffs have failed to adduce tempered parts by 8%, for example, in sufficient evidence to create a genuine February-March of 1992. App. 5913, issue of material fact. First, there is no 5917, 7184. Similarly, in January- evidence that PPG or any other February of 1992 they increased automotive replacement glass producer windshield prices by 9% and tempered exerted influence over the truckload prices parts by 10%. App. 4899, 7192, 7187. that NAGS selected to formulate 28 A fuller excerpt states: recommended prices. And there is no

In the 1950s, manufacturers were in conflict over their discounting and were based published list prices. As a on manufacturers’ truckload neutral party NAGS was prices. NAGS started asked to assign list prices to publishing the part numbers NAGS part numbers, with prices, establishing the establishing the NAGS List ‘NAGS calculator’. Price. These prices reflected the industry practice of App. 6444-45 (emphasis added).

27 evidence—unlike the evidence we challenge the District Court’s ruling on described above regarding flat glass list appe al. We review the Co urt’ s prices—that the automotive replacement determination for an abuse of discretion. glass manufacturers agreed to adjust their See United States v. Castro, 129 F.3d 226, list prices according to the NAGS 229 (1 st Cir. 1997). recommended price. We will therefore affirm summary judgment on this claim. As a general matter, a court should allow a witness to invoke his Fifth C. Evidentiary Rulings Amendment privilege only if the hazard of incrimination is “substantial and ‘real,’ The District Court excluded several and not merely trifling or imaginary.” categories of evidence before it decided United States v. Apfelbaum, 445 U.S. 115, PPG’s motions for summary judgment. 128 (1980) (citation omitted). Yet “the Plaintiffs appeal from four of the District trial judge should order the witness to Court’s evidentiary determinations. We answer questions only if it is perfectly address them in turn.29 clear, from a careful consideration of all the circumstances in the case that the answer cannot possibly tend to incriminate 1. Fifth Amendment the witness.” United States v. Washington, 318 F.3d 845, 856 (8 th Cir.), cert. denied, When plaintiffs sought to depose 124 S. Ct. 251 (2003) (internal quotations Skeddle and Bryant—the former LOF and citations omitted); see also United executives who were charged with crimes States v. Yurasovich, 580 F.2d 1212, and who alleged that LOF engaged in 1215-16 (3d Cir. 1978) (“To support a illegal antitrust activity—they both contempt citation for a refusal to testify on asserted their Fifth Amendment privilege Fifth Amendment grounds . . . it must be against self incrimination. The District ‘Perfectly clear from a care ful Court denied plaintiffs’ motion in which consideration of all the circumstances in they urged the Court to compel Skeddle the case, that the witness (who invokes the and Bryant to testify. Plaintiffs now privilege) is mistaken, and that the answer(s) cannot Possibly have such a tendency to incriminate.’”). 29 We do not address the District Plaintiffs argue that the Court erred Court’s other evidentiary rulings, such as because (1) all relevant statutes of its decision to exclude the transcript of limitations have run; and (2) the relevant Skeddle’s grand jury testimony. Plaintiffs prosecutorial authorities have stated that opine that the District Court erred when it they do not intend to bring criminal excluded the testimony, but they do not charges against Skeddle or Bryant. It is appeal from that decision. Plaintiffs’ Br. irrelevant, however, that prosecutorial 18.

28 authorities have stated that they do not the “Queen’s File,” to a grand jury intend to prosecute Skeddle or Bryant. See empaneled in the spring of 1996 to Matter of Special Federal Grand Jury, 819 investigate Skeddle’s (and others) F.2d 56, 58 (3d Cir. 1987) (“[A] promise allegations of wrongdoing in the flat glass by the government not to use the testimony industry.30 to be compelled, even if approved by a court, does not strip the recipient of the PPG filed two separate in limine protection of that privilege.”). And motions seeking to exclude both Skeddle and Bryant have sufficiently categories of notes, and the District Court refuted plaintiffs’ statute of limitations granted its motions because it determined argument. To be sure,“if a prosecution for that the notes contain “multiple levels of a crime, concerning which the witness is hearsay” and did not fall within any interrogated, is barred by the statute of exception to the hearsay rule. App. 47-48, limitations, he is compellable to answer.” 56-58. “[W]e review the district court's Brown v. Walker, 161 U.S. 591, 598 decisions to admit or exclude evidence for (1896). But, contrary to plaintiffs’ abuse of discretion, although our review is assertion, Skeddle and Bryant have plenary as to the interpretation or identified several state statute of application of a legal standard underlying limitations that have not run. In Michigan, such a decision.” Robinson v. City of for example, a defendant’s absence from Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. the state tolls the statute of limitation for 1997) (citations omitted). certain of the state’s antitrust laws. See Mich. Comp. Laws. Ann. §§ 445.781, a. Non-Queen’s File Notes 767.24(5). The District Court did not abuse its discretion by declining to compel Plaintiffs argue that many portions Skeddle and Bryant to testify. of Skeddle’s notes tend to support their contentions that PPG agreed with its competitors to increase prices on at least 2. Skeddle’s Notes two of the three occasions we discussed above. With respect to the June-July 1991 Over the course of the litigation, price increase, plaintiffs reference a May plaintiffs obtained a large collection of 31, 1991 note that states: “Glen Ronald Skeddle’s handwritten notes. The notes fall into two general categories: notes that LOF provided to plaintiffs 30 There is apparently some amount during discovery and notes that the DOJ of overlap between the two categories of produced to plaintiffs pursuant to an order notes: LOF had already produced a of the District Court. App. 10746, 11154. portion of the notes that plaintiffs also Skeddle originally provided the latter obtained as part of the Queen’s File. App. notes, which the parties have come to call 11154 n.3.

29 [Nightingale] heard that Glaverbec wants App. 4581. Another note also ostensibly to move upwards in N.E. Reg’s.” App. memorializing a conversation Skeddle had 4567. Similarly, a note that plaintiffs argue with Glen Nightingale states that Skeddle wrote no later than May of 1991 Nightingale met with AFG’s Dee states that Jim Collins, a PPG Regional Hubbard. The note mentions an Sales Manager, “mentioned that PPG is “incremental increase” and states that looking at the possibility of an inc this “AFG will lead—before Labor Day.” App. summer.” App. 3938. 3891.

With regard to the September- Similarly, a note from a meeting October 1992 price increase, plaintiffs Skeddle had with LOF board member refer to notes that purportedly memorialize Tomoaki Abe and dated November 17, conversations Skeddle had with Glen 1992 contains the notation: “Mtgs. w PPG, Nightingale, of Pilkington. First, a note Guardian re lic’g, prices, etc.” App. 10602. dated February 6, 1992 provides: “Clearly Finally, a note that plaintiffs contend Glen has had discussions w AFG, memorializes a July 13, 1992 conversation Guardian, & probably indirectly w PPG with Nightingale states: (crystal tower) re price increases, and is asking me now to supply him info so that Glen then related his he can initiate more detailed discussions inf or ma tion on N orth with his contacts.” App. 3877. And a note American flat glass pricing that plaintiffs contend pertains to a — the info came from meeting Ske ddle h ad w ith G len Hubbard of AFG, and the Nightingale on April 29, 1992 states: top guy at Glaverbel (Asahi) who control Glaverbec in Glen indicated he would Canada, [illegible] controls make contacts w AFG and AFG in the states. Glaverbel/Glaverbec to see if he could get them to agree The indication is that new to come off their silly low “ t a rg e t s ” h a v e b e e n prices and if he could established for AFG and initiate a general price Glaverbec in Canada @ increase w/in the next 2 ~7% above recent months. experience—letters will be forthcoming to the general He indicated he would get mkt place explaining new back to me to indicate his prices as follows: findings/effect following his calls. [chart omitted]

30 These prices should go into corroborated by t he ‘to tal ity o f effect 17th July. circumstances’ in the case,” id.; and (4) the declarant had personal knowledge (i.e., he Glen then related that perceived the facts to which the statement Hubbard & he have “talked” relates), see United States v. Ammar, 714 and have together convinced F.2d 238, 254 (3d Cir. 1983); 5 Jack B. PPG to take the lead in Weinstein et al., Weinstein’s Federal putting up the price by ~7% Evidence § 804.06[4] (2d ed. 2003). 31 The with letter to go out in Sept. 92, to take effect Oct. 1, 1992—with PPG taking the 31 Federal Rule of Evidence lead. 804(b)(3) provides: App. 3893. (b) Hearsay exceptions. The following are not excluded Plaintiffs argue that these by the hearsay rule if the statements are admissible because they are declarant is unavailable as a statements of coconspirators under Federal witness: Rule of Evidence 801(d)(2)(E) and .... therefore not hearsay. Alternatively, they (3) Statement against argue that even if the statements are interest. A statement which hearsay they are admissible as statements was at the time of its against interest under Federal Rule of making so far contrary to Evidence 804(b)(3). the declarant's pecuniary or proprietary interest, or so far We first consider whether the tended to subject the District Court erred in concluding that the declarant to civil or criminal statements were not admissible as against liability, or to render invalid interest under Rule 804(b)(3). A hearsay a claim by the declarant statement is nonetheless admissible if (1) against another, that a “the declarant is unavailable as a witness,” reasonable person in the United States v. Boyce, 849 F.2d 833, 836 declarant's position would (3d Cir. 1988); (2) “the statement is so far not have made the statement contrary to his pecuniary, proprietary or unless believing it to be penal interest that ‘a reasonable person in true. A statement tending to the declarant's position would not have expose the declarant to made the statement unless believing it to criminal liability and be true,’” id. (quoting Fed. R. Evid. offered to exculpate the 804(b)(3)); (3) “the trustworthiness and accused is not admissible reliability of the statemen t [is] unless corrobora ting

31 second and third requirements are Skeddle’s statements: (1) actual events did “somewhat redundant” and often require not occur precisely as the notes indicated “‘a sensitive analysis of the circumstances they would (e.g., PPG did not “lead” the in which the statement was made and the September 1992 price increase); (2) precise nature of the statement.’” Boyce, Skeddle’s notes tend to implicate others 849 F.2d at 836 (quoting United States v. besides himself; and (3) Skeddle may not Palumbo, 639 F.2d 123, 127 (3d Cir. have written the notes contemporaneously 1981)); see also United States v. Moses, with the events he described in them. App. 148 F.3d 277, 280 (3d Cir. 1998) (“This 10748-50. determination must be made ‘by viewing [the statement] in context’ and ‘in light of The first two factors do not all the surrounding circumstances.’”) sufficiently impugn Skeddle’s statements. (quoting Williamson v. United States, 512 To the contrary, discrepancies between U.S. 594, 603-604 (1994)). Skeddle’s statements and later actual events could tend to reinforce their Here, the District Court concluded veracity; statements that exactly mirrored t h a t S k e d d l e’s state m e n t s w e r e what occurred would arguably be more inadmissible because they “have not been suspect. And there is no per se rule that corroborated by the totality of the statements implicating another person in circumstances.” App. 47. Because this was misconduct are not against the interest of the total of the District Court’s analysis, the declarant. See Moses, 148 F.3d at 280. the precise basis for this conclusion is We do not agree with PPG’s assertion that unclear. In its in limine motion before the the statements, which relate the District Court, PPG appears to have inculpatory statements of his superiors offered three reasons why the totality of (such as Nightingale), do not also the circumstances do not corroborate inculpate Skeddle. Skeddle was the President of LOF at the time of the alleged conspiracy. Discussions to increase prices circumstances clearly and Skeddle’s knowledge of those indicate the discussions blanket him with antitrust trustworthiness of liability. Indeed, such liability likely forms the statement. the basis for Skeddle’s invocation of his Fifth Amendment privilege against self Fed. R. Evid. 804(b)(3). We note that the incrimination. Confrontation Clause raises some additional issues about admissibility of We agree, however, that a finding such testimony in a criminal case, but that Skeddle’s notes were not those concerns are irrelevant in this civil contemporaneous would support a case. See Crawford v. Washington, 123 S. conclusion that the statements are not Ct. 1354 (2004). reliable or corroborated by the

32 circumstances. Skeddle left LOF under a rulings in light of our decision and more cloud of mutual disaffectio n. fully explain any bases for its rulings.32 Consequently, documenting LOF wrongdoing during a time when LOF was Similarly, we will also remand the alleging that Skeddle himself had engaged District Court’s determination that the in wrongdoing would tend to impugn statements in Skeddle’s notes were not Skeddle’s motives and therefore also the statements of co-conspirators. “In order for reliability of the statements. But it is not an out-of-court statement to be admissible clear that the District Court excluded pursuant to Rule 801(d)(2)(E), the district Skeddle’s notes because it found that they court must find by a preponderance of the were not contemporaneous. Moreover, it is evidence that: (1) a conspiracy existed; (2) not clear that the record supports such a the declarant and the party against whom conclusion; on their face, many of the the statement is offered were members of notes give no indication that they were ex the conspiracy; (3) the statement was made post fabrications. in the course of the conspiracy; and (4) the statement was made in furtherance of the The District Court’s summary conspiracy.” United States v. Ellis, 156 disposition of PPG’s in limine motion hinders our ability to determine whether it abused its discretion. Cf. Becker v. ARCO 32 In this regard, the District Court Chemical Co., 207 F.3d 176, 181 (3d Cir. should determine whether, because the 2000) (“Where, however, the district court statements at issue were diary entries, fails to explain its grounds for denying a Skeddle believed that they would be seen Rule 403 objection and its reasons for by anyone. This may bear on whether they doing so are not otherwise apparent from qualify as statements against interest. the record, there is no way to review its See Zenith Radio Corp. v. Matsushita discretion.”). Since we conclude that a Electric Industrial Co., 505 F. Supp. 1190, jury could find an agreement existed even 1259-60 (E.D. Pa. 1981), issue aff’d In re absent Skeddle’s notes and we would Japanese Electronic Products Antitrust remand on that basis alone, we believe the Litigation, 723 F.2d 238, 300 (3d Cir. best course is to allow the District Court to 1983), rev’d on other grounds sub. nom consider these evidentiary matters in the Matsushita Electric Industrial Co. v. first instance. We will therefore remand Zenith Radio Corp., 475 U.S. 574 (1986). the District Court’s determination that We do not categorically hold that diary Skeddle’s statements were not against self entries cannot satisfy the requirements of interest so that the Court can consider its Rule 804(b)(3), see Walker v. Lockhart, 763 F.2d 942, 951 n.18 (8th Cir. 1985) (en banc), but we do believe that a searching inquiry is appropriate here, In re Japanese Electronic Products, 723 F.2d at 300.

33 F.3d 493, 496 (3d Cir. 1998).33 statements in Skeddle’s notes were made in the course of and in furtherance of a Here, the District Court determined conspiracy of which the declarant and PPG that plaintiffs had not satisfied the second were members. See United States v. requirement. It concluded that the McGlory, 968 F.2d 309, 334 (3d Cir. statements in Skeddle’s notes were not 1992) (citing Bourjaily v. United States, admissible as co-conspirator statements 483 U.S. 171, 175 (1987)); 5 Jack B. because “plaintiffs have failed to adduce Weinstein et al., Weinstein’s Federal sufficient evidence that PPG was a co- Evidence § 801.34[6][a] (2d ed. 2003). conspirator in the alleged price-fixing And it was the District Court’s role to conspiracy.” App. 48.34 In other words, determine whether plaintiffs satisfied their although the Court concluded that there burden. See Bourjaily, 483 U.S. at 175; was evidence that a conspiracy existed, see Ammar, 714 F.2d at 247 n.5. In making app. 46, it found that there was insufficient this factual determination, a district court evidence that PPG was a party to the is not bound by the rules of evidence. See conspiracy. Bourjaily, 483 U.S. at 178-79; Fed. R. Evid. 104(a). Thus a district court can It was plaintiffs’ burden to show by consider hearsay and other inadmissible a preponderance of the evidence that the evidence. See McGlory, 968 F.2d at 334. And it must consider the content of the 33 alleged coconspirator statement as well, There is no requirement that the although the statements require declarant be speaking from personal independent corroboration. See Fed. R. knowledge. See United States v. Ammar, Evid. 801(d)(2)(E) (“The contents of the 714 F.2d 238, 254 (3d Cir. 1983); 5 Jack statement shall be considered but are not B. Weinstein et al., Weinstein’s Federal alone sufficient to establish . . . the Evidence § 801.23[2] (2d ed. 2003). existence of the conspiracy and the 34 The District Court characterized participation therein of the declarant and the admissibility of coconspirator the party against whom the statement is statements as an “exception to the hearsay offered . . . .”). rule.” Rules 803 and 804 set forth exceptions to the hearsay rule; that is, they The Court’s summary disposition explain when statements are admissible again hampers our review of its decision even though they qualify as hearsay. Rule for an abuse of discretion, however, which 801(d), however, sets forth statements that is the standard of review we must apply to are admissible because they do not its Rule 801(d)(2)(E) determinations. See, constitute hearsay, including statements e.g., United States v. Local 560 (I.B.T.), “by a coconspirator of a party during the 974 F.2d 315, 337 (1992). Insofar as the course and in furtherance of the Court based its determination on a conspiracy.” Fed. R. Evid. 801(d)(E). conclusion that there was insufficient

34 evidence from which a jury could tending to implicate PPG in a price-fixing conclude that PPG entered into an conspiracy, and can further explain any agreement to fix prices, the District Court bases it might have for its reasoning.35 erred for the reasons we set forth above. But simply because a jury could find by a Finally, we note that many of the preponderance of the evidence that PPG notes contain multiple levels of hearsay. entered into a conspiracy, it is not the case See, e.g., Carden v. Westinghouse Elec. that the District Court must find that Corp., 850 F.2d 996, 1001-02 (3d Cir. plaintiffs showed by a preponderance of 1988); Fed. R. Evid. 805. One note states, the evidence that PPG entered into an for example, that Nightingale “related” agreement. Any particular factual that he and an AFG executive “convinced determination requires making a number PPG to take the lead in putting up the price of more particularized factual by ~7% with letter to go out in Sept. 92, to determinations and weighing the relevant take effect Oct. 1, 1992—with PPG taking importance of those determinations. And the lead.” App. 3893. The note itself two factfinders could feasibly reach (Skeddle’s statement) and Nightingale’s different conclusion, especially under a assertion that he convinced PPG to take preponderance of the evidence standard. the lead in increasing prices are both out- To be sure, however, “the Federal Rules of-court statements that plaintiffs seek to of Evidence are to be liberally construed use to prove the truth of the matter in favor of admissibility.” United States v. asserted. Either or both might be Pelullo, 964 F.2d 193, 204 (3d Cir. 1992). admissible as statements of coconspirators as well as statements against interest. Because we will remand plaintiffs’ Again, we think the District Court should flat glass price fixing claim for further make these determinations in the first proceedings, we again conclude that the instance, taking into account our best course is to remand the District Court’s determination that the statements in Skeddle’s notes were not coconspirator 35 PPG argues that the District statements. See In re Japanese Electronics Court concluded that the statements in Products Antitrust Litigation, 723 F.2d Skeddle’s notes were not in furtherance of 238, 263 (3d Cir. 1983) (remanding Rule any conspiracy, ostensibly because—as 801(2 )(E) determination to be PPG argues—Skeddle did not create the reconsidered), rev’d on other grounds sub. notes at the same time as the events he nom. Matsushita Electric Industrial Co. v. purports to describe in them. But nothing Zenith Radio Corp., 475 U.S. 574 (1986). in the Court’s decision indicates that this Thus the District Court can consider was a basis for its determination that the whether the statements in Skeddle’s notes statements were inadmissible. The District are coconspirator statements with the Court will surely consider PPG’s benefit of our discussion of the evidence arguments in this regard on remand.

35 discussion in this opinion. decision. Cf. United States v . Himmelwright, 42 F.3d 777, 781 (3d Cir. b. Queen’s File Notes 1994) (looking to whether bases for district court’s decision was “apparent The District Court concluded that from the record” where the court did not the statements in the Queen’s File notes, explain the grounds for its decision). PPG like the statements in the other Skeddle argued that most of the notes in the notes, were not ad missible as Queen’s File “were written after Mr. coconspirator statements because Skeddle’s termination as chief executive “plaintiffs have failed to adduce sufficient officer of LOF on May 10, 1993, when he, evidence that PPG was a co-conspirator in Edward Bryant (then LOF’s head of the alleged price-fixing conspiracy.” App. manufacturing operations), and Darryl 57. It also concluded that the statements Costin (then LOF’s head of technical were hearsay and the Queen’s File was not operations) were fired amidst allegations admissible under the statement against of actionable self-dealing.” App. 11154. interest exception because “the statements Many of the notes appear, on their face, to contained therein are not contrary to support PPG’s contention. They are Skeddle’s pecuniary or penal interest” and written in the third-person, for example, because “the documents’ trustworthiness and they refer to events that post-date and reliability are questionable given the Skeddle’s termination. See, e.g., Supp. totality of the circumstances.” App. 57.36 App. 437. One note, for instance, refers to the “summer of 1993” in the past tense. Since this was the sum of the App. 11154. District Court’s reasoning, we turn to PPG’s arguments before the District Court If the District Court concluded that to discern the bases for the Court’s the notes were not contemporaneous, it could have concluded that the statements contained therein were not in furtherance 36 The District Court also concluded of a conspiracy or corroborated by the that the Queen’s File and non-Queen’s totality of the circumstances; that is, it File notes did not fall within the business could have concluded that the statements records exception of Rule 803(6). App. were not admissible as coconspirator 47, 56-57. And the Court found that the statements or statements against interest. If “Queen’s File does not qualify as an we could conclude that the District Court admission by a party opponent under excluded all the Queen’s File notes on that Rules 801(d)(2)(A), (B), (C), or (D).” basis, we would affirm the District Court’s App. 57-58. Plaintiffs do not argue that decision. But PPG concedes that not all the District Court erred in these the Queen’s File notes appear to be non- determinations, and we therefore do not contemporaneous. See PPG Br. 94, Tr. of address them. Oral Argument 46. We will therefore

36 remand the District Court’s decision to plaintiffs, at “opportune times” for price exclude the Queen’s File notes for the fixing. same reasons we remand its determination to exclude Skeddle’s other notes. We The District Court concluded that think it best for the District Court to have while the evidence constituted “other bad the opportunity to make these evidentiary acts” evidence under Federal Rule of determinations with the benefit of our Evidence Rule 404(b), it was admissible discussion here. for other acceptable purposes (e.g. motive, opportunity, or intent). Yet the Court 3. Evidence Concerning excluded the evidence because it OEM Glass determine that the evidence’s probative value was substantially outweighed by the As we explained above, PPG and danger of unfair prejudice. App. 54-55. others fabricated flat glass into products This is a standard Rule 403 balance, which for use in automobiles. Some of those we review with “substantial deference.” products—called “original equipment McQueeney v. Wilmington Trust Co., 779 manufacturer” gla s s (“ O EM F.2d 916, 922 (3d Cir. 1985).37 glass”)—were fabricated for use in new automobiles. Others were fabricated for use as automotive replacement parts. The While evidence that PPG and LOF latter products—called automotive conspired together in the OEM market replacement glass—are the same as OEM would be relevant to plaintiffs’ claim that glass products, but the markets for the two PPG also conspired to fix prices in the are distinct. market for flat glass, see In re High Fructose Corn Syrup, 295 F.3d at 661 In order to prove that PPG (noting that defendant conceded to having conspired to fix the price of flat glass, plaintiffs offered evidence that they argue 37 shows that PPG conspired with LOF to fix PPG also argues that we should the price of OEM glass products. affirm the District Court’s decision Specifically, plaintiffs argue that meetings because a reasonable jury could not and conversations occurred between conclude that PPG committed the “other Edw ard Bryant— w ho was LOF’s bad acts”—conspiring in the OEM Executive Vice President in charge of the market—that plaintiffs argue tend to show firm’s flat glass, automotive replacement that PPG conspired to fix the prices of flat glass, and OEM businesses—and Frank glass. See Huddleston v. United States, Archinaco (the head of PPG’s automotive 485 U.S. 681, 689 (1988). The District replacement glass and OEM businesses). Court did not exclude the OEM glass These meetings and discussions were evidence on that basis, however, and we private and occurred, according to need not address PPG’s argument since we affirm on other grounds.

37 fixed prices on related products during the same time frame as the alleged conspiracy), Areeda, supra, ¶ 1421, at 145, plaintiffs’ evidence here is not particularly probative of any OEM glass conspiracy. The weakness of this evidence also mitigates any danger of unfair prejudice. But we cannot say that the District Court abused its discretion in weighing these countervailing considerations, and we will therefore affirm the Court’s decision to exclude the OEM glass evidence.

III. Conclusion

We will affirm the District Court’s decision granting summary judgment on plaintiffs’ claim that PPG conspired to fix the prices of automotive replacement glass. We conclude, however, that there is sufficient evidence in the record—not taking into account evidence the District Court excluded— from which a reasonable jury could find that PPG conspired to fix the prices of flat glass. We will therefore reverse the District Court’s judgment and remand for further proceedings. In addition, we will affirm the District Court’s decisions declining to compel Skeddle and Bryant to testify and excluding evidence regarding OEM glass. But we will remand the Court’s decision to exclude Skeddle’s notes so that the Court can consider its ruling in light of our opinion here and have a further opportunity to explain the bases for its decisions.