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ZENITH RADIO CORP. v. MATSUSHITA ELEC. INDUS. CO.

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


May 13, 1981

ZENITH RADIO CORPORATION, Plaintiff,
v.
MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al. Defendants. NATIONAL UNION ELECTRIC CORPORATION, Plaintiff, v. MATSUSHITA ELECTRIC INDUSTRIAL CO.., LTD., et al. Defendants. In re JAPANESE ELECTRONIC PRODUCTS ANTITRUST LITIGATION

The opinion of the court was delivered by: BECKER

[EDITOR'S NOTE: Part 3 of 3]

TABLE

 OPINION AND ORDER

 Q. Evidence of the Participation of Individual Defendants in the Conspiracy

 1. Introduction

 In order for plaintiffs to survive the motion for summary judgment as to any given defendant with respect to the conspiracy aspects of their claims, they must come forward with evidence not only of the existence of a conspiracy to restrain trade, but also of the membership of that defendant in the conspiracy. Accordingly, in the final major facet of our evidentiary review of plaintiffs' Sherman Act § 1 and Wilson Tariff Act conspiracy claims as to television receivers we consider and assess the evidence against each individual defendant advanced to show that defendants' complicity in the alleged scheme.

 Prior to commencement of the pretrial evidentiary hearings, we were confronted time and again with the defendants' contention that plaintiffs had consistently lumped all of the defendants together, and had not identified evidence discrete as to each defendant which linked that defendant to the "unitary" conspiracy. *fn270" The plaintiffs rejoined that their evidence applied to all of the defendants because they were all involved in the same conspiracy, and that plaintiffs' proffered items of evidence would, if admissible, apply to more than one defendant. That is certainly so in many instances, as in the case of the JFTC testimony. Many other items of evidence are common to many defendants, such as participation in the export control arrangements. Having in mind that we have already discussed all of plaintiffs' primary evidence, we will focus here on matters specially relevant to each defendant. In view of the length of the opinion, we will make the summary as brief as possible.

 Before commencing this task, a word is in order about the use of coconspirator declarations, for it is plain that the success of plaintiffs' trial strategy depends at least in part upon the admission under F.R.E. 801(d)(2)(E) of numerous pieces of evidence against all of the defendants on the theory that they are declarations of coconspirators. We explained in section VI.D.6, supra, the requisites for admissibility of coconspirator declarations. If we find by a preponderance of the evidence independent of the coconspirator statements that a conspiracy exists among the declarant and the defendant against whom the statement is offered, the coconspirator statements will be admissible, and must be considered as part of the record in determining whether a genuine issue of material fact exists as to any given defendant. This preliminary determination will be made infra ; our consideration in this section of the evidence of the participation of the individual defendants in the conspiracy will help lay the foundation for that determination.

  Our review of the evidence of participation of individual defendants in the conspiracy will commence with the evidence concerning the six companies (MEI, Toshiba, Hitachi, Sanyo, Sharp, and Melco, in that order) who were defendants in the Six Company Case. In conjunction with this summary, we will also describe the plaintiffs' evidence (or lack of it) against those subsidiaries of the six companies that have also been named as defendants. Since the vast bulk of the evidentiary review already conducted relates to the six companies, our task will be simplified, for that material can be incorporated by reference here. We will discuss the Matsushita defendants in the greatest detail. The length of that discussion will make it possible to abbreviate the others.

 We shall then take up the evidence as to Sony, which contends that it sold in the United States market at the highest prices, and therefore could not logically be charged with membership in a predatory low price export conspiracy. Next, we shall take up the evidence against MC and MIC, which did not manufacture CEP's, but rather purchased Japanese CEP's for resale, inter alia, in the United States market.

 Turning to U.S. companies, we shall take up the evidence as to Sears, which imported Japanese CEP's, and that with respect to Motorola, which on at least one occasion also imported Japanese CEP's. In these respective subparts we shall also discuss plaintiffs' claims against Sears and Motorola arising out of their respective roles in the acquisitions by Sanyo and Matsushita, respectively, of U.S. companies. We shall conclude our review of the evidence of participation by individual defendants in the conspiracy with some comments about plaintiffs' claims against subsidiaries of the Japanese manufacturing defendants. In the case of each defendant, our evidentiary review will be followed by comment as to the legal sufficiency of plaintiffs' evidence measured against the legal principles that have already been outlined.

 2. The Matsushita Defendants

 We begin the discussion of the plaintiffs' evidence as to the various entities constituting the Matsushita interests by taking up the parent company, Matsushita Electric Industrial Co., Ltd. (MEI). *fn271" We will then turn to Matsushita Electric Trading Company, Ltd. (MET), MEI's Japanese sales subsidiary; Matsushita Electronics Corporation of America (MECA), MEI's U.S. sales subsidiary; and Matsushita Electric Corporation (MEC), the MEI-Philips joint venture. *fn272"

 (a) MEI

 The evidence of any potential significance proffered with respect to MEI consists essentially of the following: (1) documents reflecting its participation in the check price agreements and in the activities of the various groups and associations in Japan; (2) the JFTC materials; (3) the "connection" documents which allegedly show some relationship between MEI's domestic and export prices and activities; (4) the "intent" documents; (5) documents reflecting attendance at meetings concerning possible responses to the 1921 Antidumping Act proceedings; and (6) miscellaneous matters, including the Motorola acquisition and the arrangement with Philips concerning MEC. We take these up in the order mentioned.

 MEI admits to having been a party to the MITI-related export control arrangements, and to membership in the JMEA, the T.V. Export Council, and the EIAJ. However, as we have seen, the plaintiffs were not injured by, hence have no standing to assert, a claim based upon minimum price agreements or the Five Company Rule. In any event, plaintiffs have adduced no direct or circumstantial evidence that the export control arrangements or group activities were part of any low price export conspiracy.

 Turning to the materials from the Six Company Case, we ruled in the Japanese Materials Evidentiary Opinion that, except for certain export references, the JFTC testimony of witnesses employed by the six companies was admissible under F.R.E. 804(b)(1) against the six companies who jointly defended the Six Company Case. With respect to "export references" we held that the testimony would be admissible only against the witness's employer. Four MEI employees testified: Mitsuo Tsuruta, Hiroyuki Oshima, Takuma ("Ta") Fujio, and Tsuyoji ("Tsu") Fujio. The only export references were in the testimony of the two Fujio's, but those references contain no suggestion of a low price export conspiracy or of any other conspiracy. Rather, they state that "the price on the American market is balanced with the price in Japan."

 In terms of the home market aspect of the "unitary" conspiracy, and for the reasons explained in our discussion thereof, see Part VII.G.2.(b), supra, the testimony of the various witnesses in the Six Company Case, including those employed by MEI, was not probative of the alleged high price conspiracy in Japan. Nor is there anything in the testimony of any of the witnesses upon which an inference of "war-chesting" could be built. Indeed, the only reference to profitability at all was a comment by Mr. Tsu Fujio that profits in the Japanese CEP industry were very low (DSS 61).

 We held in the Japanese Materials Evidentiary Opinion that protocols are admissible only against the employer of the person who gave the protocol. No MEI employee gave a protocol; hence no protocols are admissible against MEI. Similarly, we held that diaries seized by the JFTC would be admissible only against the employer of the diarist. The only diary entries by an MEI employee are short excerpts from the Tokizane diary, DSS's 56 and 57. However, the Tokizane diary was held to be inadmissible. See Japanese Materials Evidentiary Opinion at 1285-1286. *fn273"

 Plaintiffs' proffers from two other cases before the JFTC the recommendation decision in the Market Stabilization Council case and the consent decision and other materials from the Matsushita Retail Price Maintenance case were held to be inadmissible in our Public Records Opinion; hence they cannot add to plaintiffs' case.

 We described in Section VII.H, supra the so-called "connection" documents which allegedly demonstrate a connection between the so-called domestic and export aspects of the "unitary" conspiracy. In our description we explained that the bulk of the "connection" documents are either inadmissible or are not probative of any relationship between the domestic and export markets. Several of the "connection" documents were directed at MEI. The most notable among them, the Japan Victor document, was dealt with at length (at 1303-1310) in the Japanese Materials Evidentiary Opinion, where we held it to be unauthenticated and inadmissible on a number of grounds. The additional export references set forth by plaintiffs' counsel in the February 12, 1980 letter, see n. 152, supra, are no more availing. That letter set forth countless references from the Six Company Case, the vast bulk of which were ruled inadmissible in the Japanese Materials Evidentiary Opinion. None of those materials link MEI to an export conspiracy.

 Plaintiffs rely heavily upon the meetings of counsel concerning the Treasury Department's 1921 Antidumping Act proceedings. The only evidence concerning MEI's activities in this area are third-party memoranda relating to discussions among counsel concerning tactics for dealing with the antidumping proceeding and other third-party internal documents relaying hearsay information about the antidumping proceedings which make passing reference to a Matsushita strategy. DSS 1266 contains documents concerning an alleged agreement between J. C. Penney and MEI to split costs and legal fees arising out of the defense of the dumping proceedings. There are, as we suggested earlier in our discussion of the so-called rebate scheme, see n. 211, supra, serious problems of admissibility with many of these documents. They are tainted by primary hearsay and laden with internal hearsay. However, the short of it is that, admissible or not, these documents do not offer evidence probative of collusive behavior. As we explained in Part VI.A.8, supra, an attempt to work out a common response to a common legal problem does not establish the existence of a conspiracy, and is protected activity. In sum, none of the "connection" documents or those relative to the defense of the 1921 Act proceedings serve to link MEI to the alleged "unitary" conspiracy.

 We discussed the "intent" documents at Part VII.I, supra. As that discussion demonstrates, those documents, insofar as they are admissible, are meaningless, or at least totally non-probative in establishing the "unitary" conspiracy alleged by plaintiffs. The documents offered to show the intent of MEI are statements purportedly made by K. Matsushita and M. Matsushita appearing in "Denshi" (DSS 112) and an excerpt from the diary of an unknown person that purports to relate the remarks of an unidentified chairman of MEI's board (presumably K. Matsushita) (DSS 116). These documents are not probative of conspiracy, or at least no more so than the statements of Zenith's officials, see pp. 1232-1233, supra, relative to their desire to improve their business and increase their market share.

 Plaintiffs' supplementary in limine list contains a potpourri of documents referring to MEI, mostly relating to the Quasar acquisition and to MEI's meetings with Philips concerning the business of the MEI/Philips joint venture, MEC, which we will address in our discussion of plaintiffs' evidence as to non-TV products in Part VIII, infra. None of these documents support plaintiffs' conspiracy claims. ZSX-0021, a 1971 Sanyo memorandum, reports that the president of "Matsushita Electric" complained to Sanyo about prices which he believed were too low. MOT 2507, a 1964 Motorola "trip report," suggests that Motorola attempted, apparently without success, to induce MEI to lower its TV tube price in order to meet the competition. Ex. Westinghouse 12 is a series of memoranda and charts depicting widely varying price quotations that Westinghouse had obtained from many different Japanese manufacturers, including MEI. We need not go so far as to say that these documents establish the existence of competition, although we might; at least they do not tend to establish the existence of a conspiracy between MEI and the other defendants.

 Other than the foregoing, there is no evidence in the record of any potential significance as respects MEI. We find that fact revealing, for MEI is the largest consumer electronic products manufacturer in the world, and Konosuke Matsushita, its founder and chairman, is alleged by the plaintiffs, see p. 1232, supra, to be the prime architect of the domestic strategy which led, in plaintiffs' submission, to the "unitary" conspiracy complained of herein. And yet, when we turn from allegations to hard evidence, we find that plaintiffs' evidence against MEI amounts to nothing; certainly there is no significant probative evidence of MEI's participation in the "unitary" conspiracy.

 (b) MET

 MET is MEI's domestic trading subsidiary. Plaintiffs point first to MET's participation in the export control arrangements and in trade association activity. MET's involvement, however, is minor compared to that of MEI. Since, as we have seen, there is no probative evidence arising out of these arrangements or participation in the various groups and associations which implicates MEI (or any other defendant) in the alleged conspiracy, a fortiori there is none as to MET.

 Secondly, plaintiffs point to individual rebate transactions between MET and its private label customers, J.C. Penney and W.T. Grant. Many of the documents offered by plaintiffs to show MET's rebating practices are transactional documents which relate to private label sales. *fn274" All plaintiffs have thus advanced, however, is a group of documents which show, at most, the existence of individual rebate transactions. MET has conceded that it paid rebates. *fn275" As we have explained above, that does not create a genuine issue of material fact in this case. What would be significant is concerted rebate activity, but plaintiffs have produced no evidence that MET (or any other Matsushita defendant) engaged in any actionable collusive rebate activity.

 Plaintiffs also ground their case against MET on the fact that it is a subsidiary of MEI, with interlocking directorships. Indeed, this theory is advanced by plaintiffs with respect to each subsidiary of all the principal Japanese defendants named in the complaint. Most defendants concede the subsidiary and interlocking directorship status, but vigorously argue that far more is needed to establish participation in a conspiracy by a separately incorporated subsidiary. We shall describe our approach to plaintiffs' agency and "functional alter-ego" theories in Part VII.Q.12, infra, and shall not, until then, separately mention this aspect of plaintiffs' claim against each subsidiary. At all events, there is plainly no evidence, direct or circumstantial, of MET's individual participation in the conspiracy.

 (c) MECA

 MECA is MEI's U. S. sales subsidiary. The case against MECA consists principally of (1) its alleged rebates and knowledge of MET's rebates; and (2) miscellaneous matters.

 Once again, all that plaintiffs allege with respect to rebates is individual rebate transactions. For example, in its answers to interrogatories *fn276" MECA stated that in 1969 and 1970 Magnavox demanded that MECA retroactively cut its TV prices if it wanted to obtain any future business from Magnavox. As a result, MECA refunded to Magnavox $ 46,000, some of which is reflected in document MA 33722-6 on plaintiffs' supplementary list. Similarly, plaintiffs invoke MA 031001-12, transactional documents and correspondence relating to MECA sales to Philco; these are also offered to show rebates. MECA argues that, as a U. S. company, it is not bound by the check price, and that therefore these transactions cannot even be characterized as rebates designed to circumvent the export control arrangements. Although MECA thus denies that it gave "rebates," whether it did is not a material fact on this motion, for, as has already been explained, even if we assume arguendo that rebates were given, that fact could not defeat summary judgment in the absence of evidence of collusive rebating activity.

 Plaintiffs have also proffered documents, such as handwritten price sheets (DSS's 1273 and 1275) and general handwritten references to rebates (DSS 1274) *fn277" which they allege show that MECA had knowledge of and was involved with rebates given by MET. Assuming arguendo the admissibility of these matters, *fn278" and further assuming arguendo that plaintiffs interpret the documents correctly, there is still no evidence suggesting the existence of the agreement posited by the plaintiffs among the Matsushita defendants and the other defendant groups and their importer-coconspirators to grant rebates as part of a predatory low price export conspiracy. *fn279"

 Plaintiffs have also proffered several documents for the purpose of demonstrating communication between MECA and MEI or MET concerning the check prices. However, since the prices at which MECA purchases from MET are affected by the check prices, such communication is to be expected, and is no basis for an inference of unlawful conspiracy.

 Finally, plaintiffs have cited a number of miscellaneous documents: telexes concerning a customs check on MET invoices relating to J.C. Penney (DSS 1277); the text of a price assurance given to Treasury by MEI and MECA (DSS 1279); handwritten notes speculating as to what Penney is doing or should do about the dumping proceedings (DSS 1278); handwritten notes concerning a meeting of counsel concerning the 1921 Act proceedings (MA 48332-379); a telex from Isomura (MEI) to Yamato (MECA) referring to an EIAJ meeting at which Penney's suit against Treasury was discussed (DSS 1276); a letter from Kamihira (MEI) to Glenn (J.C. Penney) regarding contract prices being changed from dollars to yen (DSS 1246); various Magnavox documents discussing the pros and cons of purchasing on the basis of fob Japan prices vs. fob U. S. prices, which refer to purchases from MECA (DSS's 1290, 1299, 1319, ZR 54, ZM 328, ZH 206); and telexes from an unidentified source, presumably from one of the Matsushita companies, discussing radio quotas (MA 29466), prices to be charged to MECA's customers (MA 33690, 29453, 2511), and customer information (MA 29447, 33669). We could mention others. The point is that this potpourri of documents, however, shows nothing unusual or suspicious, and goes nowhere toward establishing the existence of the conspiracy alleged in this case. There is no significant probative evidence against MECA in this record.

 (d) MEC

 MEC, which was involved solely in the manufacture and sale of components, is not implicated in plaintiffs' case as to television receivers. Plaintiffs' entire case against MEC is based upon: (1) the MEI-Philips agreements discussed in Part VIII.C, infra; (2) documents purporting to record meetings between MEI and Philips relative to those agreements; and (3) the fact that from January to August, 1973, MEC was a party to the Electron Tube Export Control Arrangement. When we examine plaintiffs' evidence as to non-TV products in Part VIII, infra, we will explain that the MEI-Philips documents do not contain any evidence connecting those companies to the conspiracy alleged by plaintiffs. *fn280" Moreover, we have already explained, see Part VII.F, supra, that the various Manufacturers' Agreements, such as the Electron Tube Export Control Agreement, do not help plaintiffs' case.

 In sum, there is no evidence against any of the Matsushita defendants which directly or circumstantially involves or gives rise to an inference of involvement of any of the Matsushita defendants in the "unitary" conspiracy charged by the plaintiffs.

 3. The Toshiba Defendants

 (a) Toshiba

 Any discussion of the evidence against Tokyo Shibaura Electric Co., Ltd. ("Toshiba") must begin with what plaintiffs, for the first nine years of this case, heralded as their "smoking gun": the Yajima diaries. *fn281" Seiichi Yajima, it will be recalled, was employed by Toshiba and Toshiba Shoji (Toshiba's domestic sales corporation, not named as a party to this litigation) as "Manager of the Second Section of the TV Business Department." *fn282" However, in the Japanese Materials Evidentiary Opinion, at 1267-1277, we held the Yajima diaries inadmissible on a host of grounds, but essentially as unintelligible and untrustworthy hearsay. Even assuming admissibility, however, the alleged export references contained in the Yajima diaries are obscure and unintelligible and do not provide any evidence of the low price conspiracy to invade and take over the United States CEP market alleged by plaintiffs.

 Plaintiffs have also offered three Toshiba internal memoranda, DSS's 96, 97, and 98, as evidence of Toshiba's involvement in the alleged conspiracy. However, we excluded all of these memoranda in the Japanese Materials Evidentiary Opinion at 1299-1301, on the same grounds that we excluded the diaries.

 The other Toshiba-related materials from the Six Company Case are equally unhelpful to plaintiffs' case. Plaintiffs have offered the testimony *fn283" of three Toshiba employees as evidence of Toshiba's involvement in the alleged conspiracy: Tadashi Kamakura (DSS 69), Mr. Yajima (DSS 70), and Ryozaburo Kawahara (DSS 71). This testimony does not constitute evidence tending to show Toshiba's involvement in either the home market or export facets of the "unitary" conspiracy. *fn284" Plaintiffs have offered the protocols of Mr. Yajima (DSS's 75, 76, 77, and 78), Mr. Kamakura, (DSS's 81 and 82), Mr. Seigo Narita, (DSS's 79 and 80), Mr. Ryunosuke Kamuro (DSS 83), and Mr. Kawahara, (DSS 84), all Toshiba employees, as evidence of Toshiba's involvement in the alleged conspiracy. We have held protocols admissible against the employer of the giver of the protocol. These protocols are not probative of home market high prices or "war-chesting." Moreover, there are no references to export matters in any of these protocols (or in fact in any of the other protocols offered by plaintiffs). Indeed, the record does not reveal that any of these Toshiba employees had any responsibilities with respect to export matters.

 With regard to matters common to all six defendants, Toshiba was a signatory to the Manufacturers' Agreements and was a member of the JMEA. However, for reasons explained above, the export control arrangements memorialized in these documents are not a possible source of antitrust injury to the plaintiffs. Toshiba, like all of the six companies, has conceded membership in the numerous groups and associations mentioned in the Six Company Case and in the EIAJ. However, as we have seen, these memberships and attendance at meetings do not constitute evidence of conspiracy. Nor, as we explained in Part VII.G, supra, have plaintiffs adduced any admissible probative evidence of conspiratorial activity by any of the defendants in conjunction with their membership in these groups.

 Turning to Toshiba's alleged role in the "rebate scheme," we note that although Toshiba sold private label merchandise to J.C. Penney and Co., Singer Corp., Philco Electronics Corp., and R.H. Macy, as well as to Sears, plaintiffs have only charged Toshiba with granting rebates to Sears. We have already explained that a genuine issue of fact exists on the question whether the Japanese manufacturing defendants, including Toshiba, paid rebates to their U.S. customers. However, we have also explained that the issue of fact is not material in the absence of evidence of concerted activity with respect to the rebate scheme. Plaintiffs have advanced no such evidence.

  In a segment of their "Memorandum Concerning Plaintiffs' Conspiracy Evidence Relating to the Toshiba Defendants," Toshiba counsel submitted that the absence of several items of evidence against Toshiba was "telling." That catalogue of evidence that plaintiffs have failed to present is as follows:

 

1. No evidence, direct or circumstantial, that Toshiba discussed or agreed with anyone to sell television receivers in the United States at unreasonably low prices;

 

2. No evidence, direct or circumstantial, that Toshiba's pricing of television receivers in the United States or Japan was parallel to any other defendant herein or any other competitor;

 

3. No evidence, direct or circumstantial, that pricing of Toshiba television receivers sold in the United States market was below the competitive price levels for such products in the United States market (and no showing of what the competitive price level was in the United States market); and

 

4. No evidence, direct or circumstantial, of sales of television receivers in the United States market below any defined level of costs.

 This listing is accurate, and could be augmented to detail other areas of plaintiffs' failure to offer evidence in opposition to the motions for summary judgment. *fn285" Suffice it instead to say that plaintiffs have simply offered no evidence, direct or circumstantial, which could create a genuine issue of material fact as to Toshiba's involvement in the "unitary" conspiracy.

 (b) Toshiba America, Inc. (TAI)

 The bulk of plaintiffs' allegations against Toshiba, themselves unavailing, are not even applicable to Toshiba's U.S. sales subsidiary, TAI. There are no references to TAI in the JFTC-related diaries, testimony, or protocols; indeed, TAI never employed any of the witnesses who testified or gave protocols before the JFTC (or whose diaries were seized). Neither is TAI implicated in any way in the Toshiba internal memoranda (DSS's 96-98). TAI was not a signatory to the Manufacturers' Agreements and was not a member of the JMEA, hence was not involved in any check price rules or regulations. TAI was not involved in the Six Company Case or Market Stabilization Council Case, or in any other case before the JFTC, and was not a member of any Japanese group or trade association. Moreover, during the time periods applicable to this litigation, TAI did not sell private label merchandise, and plaintiffs have made no claim that TAI granted illegal rebates to its customers.

 With respect to TAI, there is no evidence, direct or circumstantial, of discussions or agreements to sell television receivers in the United States at unreasonably low prices, or that TAI's prices were parallel to any other defendant or any other competitor, or of sales below competitive levels in the U.S. market. Neither is there any evidence of sales by TAI below cost, or that TAI acquired any U.S. CEP manufacturer.

 In fact, the only real allegations as to TAI's involvement in the alleged conspiracy are those set forth in plaintiffs' brief in response to defendants' motion for summary judgment at pages 147-56 (see also FPS 1641 et seq.), where they assert the following:

 

1. TAI is a subsidiary of Toshiba;

 

2. Toshiba made capital contributions to TAI;

 

3. Toshiba has guaranteed TAI's loans;

 

4. TAI sold Toshiba television receivers in the United States;

 

5. Certain TAI employees were previously employed by Toshiba;

 

6. TAI was a member of the Japan Light Machinery Information Center; and

 

7. TAI's income tax returns indicated that TAI lost money during the period 1965 through 1977.

  We consider infra the general legal principles applicable to the question whether the subsidiaries of the Japanese manufacturing defendants are sufficiently intertwined with their parents to be considered functional alter-egos or agents, hence chargeable vicariously with their parents' actions. Addressing TAI as an independent entity, however, it is plain that the evidence is insufficient to create a genuine issue of material fact as to its membership in the "unitary" conspiracy.

 4. The Hitachi Defendants

 As with the Toshiba defendants, it is appropriate to begin our discussion of the Hitachi defendants *fn286" with the JFTC materials, for among the evidence most strongly stressed by the plaintiffs prior to our Japanese Materials Evidentiary Opinion were the Yamamoto and Yamada diaries. *fn287" At the time of the writing of the diaries, Mr. Yamada was Department Manager, Electrical Appliances Department, Consumer Products Division, of Hitachi, Ltd. and Mr. Yamamoto was Manager of the Television Section of the Television Department of Hitachi Kaden. In the Japanese Materials Evidentiary Opinion, at 1277-1283, we held the Yamamoto and Yamada diaries inadmissible on a host of grounds, but essentially as untrustworthy hearsay. We add, however, that the alleged export references contained in these diaries are unintelligible and do not provide any evidence of the home market war chesting conspiracy or the low price export conspiracy to invade and take over the U.S. CEP market alleged by the plaintiffs. Moreover, at the time the diaries were written, neither Mr. Yamada nor Mr. Yamamoto had responsibility in export matters.

 Turning to the JFTC testimony, it will be recalled that we made several exceptions to our ruling in the Japanese Materials Evidentiary Opinion excluding "war-chesting" or export references. One of those exceptions was as to the testimony of Mr. Nishi, which we found admissible against his employer, Hitachi. *fn288" However, Mr. Nishi's testimony, although it does discuss the success of the Japanese CEP industry in the export field, does not supply any evidence to aid plaintiffs' conspiracy theory. It will be recalled that it was Mr. Nishi who used the "it is our heritage" language which plaintiffs cite frequently as evidence of defendants' predatory intent, but which, as we explained in Part VII.I, supra, does not aid plaintiffs' case one iota. Indeed, Mr. Nishi testified that the ability of the Japanese television manufacturers to compete effectively in export markets was significantly the result of intense competition in the Japanese domestic market.

 Plaintiffs have offered the protocols of Mr. Adachi (DSS 85) and Mr. Yamamoto (DSS 86) as further evidence of the alleged conspiracy. Although these protocols are admissible against Hitachi, there is nothing in them having any relationship to export-related matters. The protocols concern only domestic Japanese marketing and prices. Neither the protocols nor any other Japan-side evidence supports plaintiffs' claim of a home market high price war-chesting conspiracy.

 Plaintiffs have also offered the so-called Shimizu memorandum (DSS 95) as evidence of the Hitachi defendants' participation in the alleged export conspiracy. We discussed the Shimizu memorandum at 1297-1299 of the Japanese Materials Evidentiary Opinion, where we excluded it from evidence, holding that it is not admissible under any of the exceptions to the hearsay rule and that it does not qualify as an admission of Hitachi. *fn289"

 Hitachi, Ltd., like all of the six companies, was a signatory to the Manufacturers' Agreements. Both Hitachi, Ltd. and Hitachi Kaden were members of the JMEA, hence subscribers to the Rules. However, as we have seen in our extensive discussion above, the export control arrangements do not advance plaintiffs' case. Hitachi has also conceded membership in the numerous groups and associations discussed above. However, as we have also explained, the evidence relating to those groups and associations is equally nonprobative, and does not tend to show any Hitachi involvement in any conspiracy. As for Hitachi's alleged role in the rebate scheme, plaintiffs have offered DSS's 1359 through 1374 as evidence that the Hitachi defendants participated in rebate activity. *fn290" However, neither these documents nor any others constitute any evidence of involvement in concerted rebate activity. Although a genuine issue of fact exists on the question whether the Japanese manufacturing defendants, including Hitachi, paid rebates to their U.S. customers, we have already explained that that issue of fact is not material in the absence of evidence of concerted activity with respect to the rebate scheme.

 The plaintiffs have attempted to show, through the DePodwin report, that Hitachi sold television receivers in the United States below cost. For reasons explained in the Expert Testimony Opinion, DePodwin's opinion is inadmissible. In terms of the other aspects of plaintiffs' claims, we can incorporate by reference the Toshiba defendants' catalogue of evidence that plaintiffs have failed to present, see page 1273, supra, for the same failings exist with respect to Hitachi. In sum, plaintiffs have offered no evidence, direct or circumstantial, which would create a genuine issue of material fact as to the involvement of Hitachi or Hitachi Kaden in the "unitary" conspiracy.

 We could also rescribe our discussion about the evidence adduced against Toshiba America, Inc., for what was said about TAI (p. 1273, supra ) is transferable to Hitachi's U.S. sales subsidiary, HSCA. Rather, we shall merely incorporate that discussion by reference and note that there is no evidence, direct or circumstantial, of the involvement of HSCA in the alleged conspiracy. Although the plaintiffs set forth in replete detail the intercorporate relationships among Hitachi and its affiliates, this does not supply proof of a conspiracy.

 5. The Sanyo Defendants

 The Sanyo defendants *fn291" are involved with the export control arrangements to the same extent as the Matsushita, Toshiba, and Hitachi defendants, with the same lack of consequences insofar as plaintiffs' conspiracy claims are concerned. Looking briefly first at the Six Company Case, we note that unlike the other defendants, there is very little evidence in the record which even purports to be applicable to Sanyo. The JFTC obtained no diaries written by any Sanyo Denki employees; nor did they obtain any other documents from the files of Sanyo Denki which allegedly set forth conspiratorial discussions at any trade association or sub rosa meetings. The plaintiffs have proffered the JFTC testimony of three Sanyo officials, Mr. Hirano (DSS 62), Mr. Yoshioka (DSS 63), and Mr. K. Iue (DSS 74). While this testimony is admissible at least as to domestic matters, neither the testimony nor any other evidence implicates Sanyo in a home market high price "war-chesting" conspiracy. Moreover, the testimony of Mr. Hirano and that of Mr. Iue contains no export reference. While the testimony of Mr. Yoshioka does, we expressly held at page 1294 of the Japanese Materials Evidentiary Opinion that that reference was inadmissible. *fn292" Mr. Yoshioka's protocol (DSS 104) was also offered. We have held protocols admissible against the employer, but Mr. Yoshioka's protocol contains no export references.

 Plaintiffs cite as a "connection" document in their February 12, 1980 letter, see n. 152, supra, a certain calendar book which was seized by the JFTC in November 1966, but not used by it and not marked as an exhibit in the Six Company case. The calendar was returned to Sanyo Denki by the JFTC following discontinuance of the Six Company case and was produced for plaintiffs' inspection and copying in May, 1979. That document, however, contains only references to the time and place of meetings of some of the sub rosa groups. It is untranslated, but it is represented to us that it does not contain any textual description of the meetings or set forth the purposes of or conversations at the meetings; hence it is equally unavailing, even if admissible. The foregoing are the only "Japan-side" documents which relate specifically to the Sanyo defendants.

 Turning to Sanyo's role in the "rebate scheme," the plaintiffs have offered numerous documents purportedly demonstrating Sanyo's involvement in the alleged scheme. There have been heated disputes about the admissibility of many of these documents, but we need not engage in that dialogue, because we have assumed that there is a genuine issue of fact about the payment of rebates. *fn293" But nowhere in any of the myriad documents offered by plaintiffs is there any evidence or suggestion of concerted activity among Sanyo and any other defendants relating to rebates to any of these customers. For the reasons explained above, these rebate documents reflect pursuance of Sanyo's self-interest and are as consistent with the forces of competition as with the forces of conspiracy. *fn294" There is no evidence that Sanyo had firsthand knowledge of the details of any rebates or discounts being offered or paid by any of its competitors, and vice versa. Even with respect to Sears, whose business Sanyo shared with Toshiba, there is no evidence that Sanyo had knowledge of Toshiba's rebate program with Sears or that the Sanyo and Toshiba rebate programs were coordinated in any way.

 Neither have plaintiffs been successful in demonstrating below cost sales by Sanyo. Dr. DePodwin's cost analysis has been excluded. *fn295" Although the plaintiffs have invoked scattered references in other documents allegedly showing lack of profitability of certain product lines at certain intervals, this evidence does not begin to amount to probative evidence of below cost sales or predatory pricing. *fn296"

 In sum, our review of the evidence as it relates to Sanyo reveals no evidence that Sanyo discussed or agreed with anyone to sell television receivers into the United States at unreasonably low prices or evidence that Sanyo's pricing of television receivers in the United States or Japan was parallel to that of any other defendant or any other competitor. Indeed, Sanyo's series of rebate programs was unique to Sanyo. Neither is there any evidence that pricing of Sanyo television receivers in the United States market was below competitive price levels. While much heat was generated over the question whether Sanyo disclosed the existence of rebates to U.S. customs (Sanyo contends that it did), we have already explained supra that nondisclosure of rebates would be in Sanyo's self interest and more consistent with rational independent action than with conspiratorial activity. There is just no evidence of Sanyo's participation in the "unitary" conspiracy.

 Turning to Sanyo's subsidiaries, plaintiffs have offered no discrete evidence as to Trading or INCO which would involve them in the "unitary" conspiracy other than the fact that they are subsidiaries of and therefore allegedly functional alter-egos or agents of Sanyo Denki. More particularly, with respect to the Sanyo subsidiaries, there is no evidence, direct or circumstantial, of discussions or agreements to sell television receivers in the United States market at unreasonably low prices or any other of the kinds of activity which the plaintiffs have described as ingredients in the "unitary" conspiracy of which they complain. We already discussed, in Part VII.N.3, supra, why the allegations against Sanyo Manufacturing Corp. with respect to the Warwick acquisition do not give rise to an inference of conspiracy. Treating the subsidiaries as independent entities, the evidence is not sufficient to create a genuine issue of material fact on the issue of their participation in the alleged conspiracy.

 6. The Sharp Defendants

 Sharp *fn297" stands in the same shoes as the other Japanese manufacturing defendants with respect to the export control arrangements, having been a signatory to the Manufacturers' Agreements and a member of the JMEA, hence a subscriber to its Rules. For the reasons explained above, the export control arrangements cannot help the plaintiffs. Sharp has also conceded membership in the various trade associations and the sub rosa groups mentioned in the Six Company Case and attendance from time to time at their meetings. However, as we have seen, these memberships and attendance at meetings do not constitute evidence of conspiracy. There were no diaries of Sharp officials seized by the JFTC. Mr. Ogawa, of Sharp, gave testimony before the JFTC (DSS 72 and DSS 73), but his testimony contained no export references. Two Sharp employees, Mr. Saeki and Mr. Maekawa, gave protocols to the JFTC. We excluded Mr. Maekawa's protocol in the Japanese Materials Evidentiary Opinion, and Mr. Saeki's protocol contains no export references. There are no miscellaneous Sharp documents, "smoking guns" or otherwise, which come to us from the JFTC proceedings. Plaintiffs have adduced no admissible evidence of Sharp-related conspiratorial activity in conjunction with the sub rosa groups (or of the groups themselves), either in terms of home market high price "war-chesting" activity or predatory low price export activity.

 Sharp sold private label merchandise to a number of American buyers, and a genuine issue of fact exists as to Sharp's participation in the rebate scheme. However, that issue of fact is not material because there is no evidence that Sharp was involved in concerted activity with respect thereto. To the contrary, the documents produced by Midland, one of Sharp's private label customers, showed that Sharp, Hitachi, and JVC, among other Japanese companies, competed with each other for Midland's import business. *fn298"

 In sum, what has been said of the other Japanese manufacturing defendants may also be said of Sharp. Plaintiffs have adduced no evidence, direct or circumstantial, that Sharp discussed or agreed with anyone to sell television receivers into the United States at unreasonably low prices, or that its pricing of television receivers in the United States or Japan was parallel to that of any other defendant or any other competitor, or that Sharp sold television receivers in the United States market below the competitive price levels in that market, or that Sharp sold television receivers in the United States' market below any defined level of cost. For all of these reasons, and for the reasons explained in our more generalized discussion supra, plaintiffs have adduced no evidence, direct or circumstantial, which could create a genuine issue of material fact as to Sharp's involvement in the "unitary" conspiracy. We note, in addition, that Sharp has filed the affidavit of Mr. Y. Fukao, Senior Executive Director of Sharp, controverting in detail plaintiffs' allegations about conspiratorial activity. *fn299" Mr. Fukao's affidavit stands essentially uncontroverted.

 A similar (uncontroverted) affidavit was filed on behalf of SEC by Mr. T. Tani, Executive Vice President, Treasurer and Controller of SEC. Leaving aside the questions of corporate agency or "functional alter-egos," our review of the evidence reveals that plaintiffs have adduced no evidence, direct or circumstantial, of SEC's involvement in the alleged conspiracy.

 7. Melco and Melco Sales, Inc. (MSI) *fn300"

 Plaintiffs' strategy as to the Melco defendants has been essentially threefold. First, as was the case with the other Japanese manufacturing defendants, they have attempted to link Melco to the conspiracy by virtue of its participation in the MITI-related export control arrangements and in the various groups and associations in Japan. Secondly, plaintiffs have made numerous submissions with respect to Melco's alleged involvement in the "rebate scheme." Finally, plaintiffs have devoted considerable efforts to developing the concept of the "Mitsubishi Group," attempting to link the activities of Melco and MSI with those of MC and MIC, discussed infra. *fn301"

 Melco, like the other Japanese manufacturing defendants, was a signatory to the Manufacturers' Agreements and, by virtue of membership in the JMEA, a subscriber to the JMEA Rules. We have already explained how participation in these export control arrangements does not aid plaintiffs' conspiracy case. The plaintiffs have offered the JFTC testimony of two Melco witnesses, Mr. Okuma and Mr. Kihara, but the testimony of neither contains any export references. Plaintiffs also offer the protocols of Mr. Okuma as well as Mr. Ito of Melco, but, again, neither protocol contains any export references. Plaintiffs offer no miscellaneous Melco documents seized in the JFTC proceedings. *fn302" Melco, like the other defendants, has conceded membership in numerous groups and associations in Japan, including the various sub rosa groups. However, plaintiffs have not offered any evidence connecting Melco to any conspiratorial activity of either a high price home market war-chesting or a predatory low price export nature.

 As we approach plaintiffs' claims about Melco's alleged involvement in the "rebate scheme," and look not just at the "trees" but also at the "forest," it appears that the Melco aspect of the case has taken on a qualitatively different cast than the rest of it. We take a paragraph to explain what that difference is and why, at least in our perception, it is so.

 Unlike the other Japanese manufacturing defendants, which essentially conceded that there was a genuine issue of fact on the question of the payment of rebates (though not of material fact), Melco has steadfastly denied paying any rebates at all, and has devoted numerous pages of its briefs to demonstrating the correctness of its position. *fn303" Even though it concedes that MSI sells Melco CEP's in the United States and that MSI is a 100% owned subsidiary of Melco USA, Inc., which is in turn a 100% owned subsidiary of Melco, Melco has attempted assiduously to disassociate itself from MSI. Plaintiffs rejoin that Melco caused Melco USA, Inc. to create MSI and contend that Melco in fact interposed Melco USA, Inc. to conceal Melco's control and to act as a "shield." *fn304" Melco, however, denies such control. Indeed, Melco and MSI devote an entire section of their response to plaintiffs' supplemental reply memorandum in opposition to motions for summary judgment, filed September 22, 1980, to an attempted demonstration that there is no basis for any of plaintiffs' claims concerning any alleged agency or alter-ego relationship between Melco and MSI. *fn305"

 It appears to us that Melco's "Lone Ranger" position is but another facet of its unceasing effort to resist the personal jurisdiction, venue, and process of this court, which it commenced early in the proceedings. These efforts were rebuffed by our predecessor in the case, Judge A. Leon Higginbotham, Jr., who denied Melco's motion to dismiss the complaint for lack of personal jurisdiction, venue, and adequate service of process. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 402 F. Supp. 262 (E.D.Pa.1975). *fn306" We, of course, respect Melco's right to press its resistance to personal jurisdiction, venue, and process, and have, throughout our stewardship in this case, treated those points accordingly. We also understand that the vigor with which Melco has pressed these objections is, at least in part, a function of its feeling that, given Melco's small share of the U.S. CEP market (smaller than any of the other Japanese manufacturing defendants and considerably smaller than most of them), it has been an imposition to require it to expend the staggering counsel fees that defense of this litigation has entailed. *fn307"

 Plaintiffs have also asserted that Melco and MC/MIC are linked by the so-called "Mitsubishi Group," a vestige of the zaibatsu, see Part VII.C, supra, and that they are engaged in the coconspiratorial venture as such. Plaintiffs submit in this regard that the purchase by MSI of MIC's MGA Division is evidence of the connection between Melco and MC and MIC as part of the "Mitsubishi Group." Melco has consistently, throughout this litigation, denied the existence of the "Mitsubishi Group" and has denied any connection with MC or MIC beyond a vendor-vendee relationship. *fn308"

 Notwithstanding the foregoing discussion, we elect not to reach the question of the agency of MSI, the question whether there is a genuine issue of material fact as to Melco's involvement in the rebate scheme, or the question of the Melco-MC/MIC relationship and the "Mitsubishi Group," since at all events these issues of fact cannot be material. *fn309"

 The rebate issue is not material for the same reason as for the other defendants: there is simply no evidence that Melco engaged in any concerted activity with respect to rebates. Neither is there any evidence that Melco discussed or agreed with anyone to sell television receivers into the United States at unreasonably low prices, or that Melco's pricing of television receivers in the United States or Japan was parallel to any other defendant or any other competitor. There is also no evidence that the pricing of Melco television receivers sold in the United States market was below the competitive price levels for such products in the United States market, and the plaintiffs have not adduced any evidence of sales of television receivers by Melco in the United States below cost. The short of it is that there is no evidence of participation by Melco in the "unitary" conspiracy.

  For the same reasons we have indicated supra and for those explained in connection with the other defendants, we need not consider the MSI agency or corporate veil-piercing questions or the alleged relationship of Melco and MC/MIC via the "Mitsubishi Group." In the absence of any evidence holding Melco (or MC/MIC, see Part VII.Q.9, infra ) into the conspiracy, and there is none, it is unnecessary to reach the question of the vicarious liability of their subsidiaries or affiliates. We do note that, insofar as independent evidence against MSI (since its creation in 1974) is concerned, plaintiffs have simply adduced no evidence of its conspiratorial involvement. *fn310"

  8. Sony

  Sony is a defendant only in the NUE case, having settled Zenith's claims during the course of the litigation. That fact, however, does not alter our analysis, the first portion of which will proceed on the same wave length as our analysis of the evidence against the other Japanese manufacturing defendants. *fn311" The discussion will then shift to an analysis of the factors which differentiate Sony, namely, its well-known position as the highest price seller in the U.S. market, making it an illogical candidate for membership in a low price conspiracy.

  Sony was a signatory to Manufacturers' Agreements and a member of the JMEA. However, Sony's participation in the export control arrangements does not help NUE for the reasons explained above. NUE has attempted to connect Sony with the alleged price fixing activities of certain groups in Japan. Not only is there a categorical denial of such activities by Sony's president, Mr. Morita, who has filed an affidavit accompanying the summary judgment motion, but the evidence is uncontradicted that Sony was not a member of most of the allegedly offending sub rosa groups in Japan, *fn312" nor was it named in the 1966 JFTC proceedings. No Sony diaries were seized by the JFTC and no Sony witnesses testified before or gave protocols to the JFTC. The only allegedly conspiratorial groups to which Sony belonged were the Market Stabilization Council (which Sony joined in 1959), the MD Group, and the TS Group. Our description of the activities of those groups in Part VII.G, supra, makes it clear that even if there were evidence of Sony's participation in their allegedly offending activities, that evidence would not give rise to liability. But there is no evidence offered by NUE to link Sony, through actions or statements of any Sony employees who may have attended such meetings, with any supposed conspiratorial activities.

  Moreover, in contrast to its case against the other Japanese manufacturing defendants, NUE does not (and cannot) include Sony in its rebate scheme claims because Sony did not sell to private label or OEM customers, but rather only to its own subsidiary, Sonam, which in turn handled Sony's retail marketing in the United States. Sony thus paid no rebates and, therefore, cannot be implicated in conspiracy claims which posit a predatory low price export conspiracy predicated upon the combination of the check price agreements and the rebate scheme. Moreover, Sonam's prices, the only ones which could affect American television manufacturers, were indisputably much higher than the check prices, and typically higher than the prices of Sonam's American competition, including NUE, mooting plaintiffs' injury claims on still another ground.

  The evidence against Sony may fairly be summarized by saying that there is: (1) no evidence that Sony discussed or agreed with anyone to sell television receivers into the United States at unreasonably low prices; (2) no evidence that Sony's pricing of television receivers in the United States or Japan was parallel to that of any other defendant or any other competitor; (3) no evidence that pricing of Sony television receivers sold in the United States market was below the competitive price levels for such products in the United States market, and (4) no evidence of sales of television receivers by Sony in the United States market below any defined level of cost.

  At the time we heard Sony's motion for summary judgment, we had not conducted the pretrial evidentiary hearings. *fn313" In the wake of that argument, believing the membership of Sony in at least some of the "conspiratorial" groups might be sufficient to create a genuine issue of material fact, we reserved decision on the motion. We have now seen that the group membership and the other alleged evidence of Sony's involvement in the conspiracy does not create such an issue. We do not, however, rest on that analysis, but extend our discussion to demonstrate why it is illogical, and therefore improper, to infer that Sony was a member of the "unitary" conspiracy.

  As Sony correctly observes, at the heart of the conspiracy complained of by NUE is the claim that all of the Japanese manufacturing defendants sold television receivers in the United States at depressed dumping levels. Although plaintiffs' claims have undergone considerable mutation during the course of this litigation, one thing has never changed the allegation that all of the Japanese defendants engaged in a low price predatory export conspiracy. Moreover, in terms of impact, NUE has alleged that sales of television receivers by "the defendant Japanese Corporations ... at unfairly low and discriminatory prices," eroded the "niche" of Emerson (NUE's predecessor) as a seller of "low leader merchandise." Against this background, Sony argues that any inference of participation by Sony in this low price conspiracy is completely illogical because, consistent with its well-recognized image, Sony has always sold its products in the United States at high (and profitable) price levels.

  Perhaps the most impressive authority which Sony has cited to this effect is Zenith's Board Chairman, John J. Nevin, who, in deposition testimony, acknowledged that Sony's products were often priced above even the higher priced television receivers available from American companies. Sony also cites a television interview by Mr. Nevin, wherein he specifically excluded Sony from his comments about "Japanese dumping," and asserted that Sony products had typically been sold in the American market at prices equal to or above the prices of the higher priced American products. Additionally, Sony invokes the deposition testimony of Joseph Wright, Zenith's current Board Chairman, to the effect that Sony's prices were higher than any of the United States producers, and statements from other Zenith executives to similar effect, including that of Vito Brugliera, Manager of Value Engineering, who testified that Sony TV's were so expensive that Zenith did not feel them to be a competitive threat. Finally, Sony has relied upon statements of NUE officials who have admitted that Sony, unlike the other Japanese manufacturing defendants, was not identified with low leader merchandise. Sony also points out (and NUE admits) that Sonam, the United States subsidiary of Sony, has made a profit in every year since November 1963.

  Along with its summary judgment motion, Sony has submitted summaries of newspaper advertisements by retailers in the New York and Philadelphia areas which demonstrate that the retail prices of Sony's television sets were consistently higher than those of Emerson. For example, in February 1967, Sony nine-inch sets were selling in New York for over $ 139.00, while Emerson 15-inch sets were selling there for $ 89.84. It is clear from the record that at no time did Emerson regard Sony television receivers as competing with Emerson; rather, Emerson's competition consisted of other lines which, like Emerson, were attempting to carve a niche for themselves at the low end of the television price spectrum.

  Additionally, in the years in question, the Sony brand television receivers on the U.S. market were limited almost entirely to very small screen sizes not manufactured by Emerson. Emerson, during the period that it was owned by NUE, did not, like Sony, manufacture television sets of nine inches and less. Joseph McKee, NUE's then Executive Vice President, testified that, "We considered those as toys."

  The foregoing facts (and contentions of Sony) are uncontroverted. NUE's only colorable rejoinder is that what is important for purposes of price comparison would be evidence not of retail prices, but of the prices at which Sony sold to its only customer, Sonam. However, even assuming that could be a valid comparison given the parent-subsidiary relationship, plaintiffs have adduced no evidence of low price sales to Sonam which changes the result. *fn314"

  The conclusion we draw from the foregoing is that given the standards for conspiracy proof that we have enunciated in Part VI.D.(4), supra, it is illogical to infer Sony's membership in a low price conspiracy. First, it is incontrovertible that Sony's high television prices were in furtherance of its own economic self-interest. Given the fact that Sony was able to command higher prices for its television sets than most other manufacturers, including NUE, it cannot be said to have been acting contrary to its economic self-interest in charging them. Second, because Sony consistently occupied the high price niche, it lacked an economic motive to conspire to drive NUE from its low price niche. It is at odds with common sense to believe that Sony would have participated in a conspiracy to drive Emerson out of business when that company posed no real competitive threat to Sony. Put differently, Sony's conduct is totally consistent with rational independent economic behavior, or at least far more so than with conspiratorial behavior. Under these circumstances, we cannot draw an inference of Sony's (or Sonam's) membership in the "unitary" conspiracy. To do so would be to engage in sheer speculation. *fn315"

  9. MC and MIC

  Mitsubishi Corporation (MC), the largest trading company in the world, is engaged in importing, exporting, trading, and other mercantile business, with sales in the billions of dollars. MC engages in no manufacturing, but relies exclusively on outside sources of supply. Taking the fiscal year ending March 31, 1979 as an example, MC had total trading transactions of $ 44 billion, involving 25,000 different product lines. That year approximately 47 percent of MC's business involved entirely domestic transactions within Japan, 18 percent involved exports from Japan, 25 percent involved imports to Japan, and the remaining 10 percent involved foreign transactions entirely outside Japan. Mitsubishi International Corporation (MIC), MC's wholly owned United States subsidiary, was incorporated in New York in 1954. MIC, like MC, is a general trading company with no manufacturing capabilities.

  Prior to World War II, MC's predecessor company was a member of the Mitsubishi zaibatsu, controlled by the Iwasaki family through a holding company. *fn316" The zaibatsu controlled a broad range of banking, trading, shipping, mining, and industrial manufacturing enterprises. Following the war, under edict from the Occupation Administration, the Mitsubishi holding company was liquidated and its former operating companies, including MC's predecessor, became publicly owned companies operating under separate management.

  Trading in consumer electronic products has never been a substantial portion of MC or MIC's business. In 1973, MC and MIC's highest volume year for trading consumer electronic products, they had consolidated sales (predominantly sales by MIC) of consumer electronic products totalling $ 27 million, about 0.12 percent of MC's total trading volume of $ 22 billion, and about 0.8 percent of its total exports of $ 3.4 billion. That year sales of television receivers alone amounted to only $ 15 million, or 0.07 percent of MC's trading volume and 0.5 percent of its exports. Neither were MC or MIC a substantial factor in the industry. In 1973, MIC's highest volume year, MIC distributed but 0.9 percent of the monochrome and color television receiver units sold in the United States and accounted for but 0.5 percent of the U.S. dollar sales of television receivers.

  MC and MIC have never manufactured television receivers or consumer electronic products of any kind. Neither MC nor MIC has ever sold or distributed consumer electronic products in Japan. Instead, during the years they traded in such products, MC and MIC purchased them from manufacturers of consumer electronic products for resale outside of Japan. MC and MIC purchased television receivers from such Japanese manufacturers as Melco, General Corporation (General), and Osaka Onkyo. In addition, MIC purchased television receivers from Wells Gardner, an American manufacturer. As for other consumer electronic products, MC and MIC purchased from Shodenshosha (also known as Audio World), Fuji Onkyo, General, Maeden Company, Marvel Company, Melco, Nippon Onkyo, Onkyo Nisshin, Osaka Onkyo, and Sankyo Seiki.

  MC and MIC traded in consumer electronic products in two ways. First, beginning in 1963, MC sold consumer electronic products to MIC for resale in the United States under private labels to a number of U.S. mass merchandisers and to a number of original equipment manufacturers, including Emerson (plaintiff NUE's predecessor), Muntz, and Westinghouse. Typically, such sales were negotiated between MIC and its customer, often with the direct involvement of technical representatives of the manufacturer, particularly when the private label product was custom-designed to the purchaser's specifications. In 1974, MIC discontinued the private label segment of its consumer electronic products trading.

  In 1970, MIC, until then a private label purchaser, undertook to market brand-name consumer electronic products by obtaining the North American rights to Melco's MGA trademark for consumer electronic products. A license agreement between MIC and Melco allowed MIC to market and distribute MGA brand CEP's purchased from a number of firms, including Melco, in the U.S., England, and Japan. The MGA Division of MIC purchased the products at a price negotiated between MIC on the one hand and Melco or other manufacturers on the other hand, and sold them under MIC's schedules of prices and conditions to independent MGA dealers.

  MIC separately, and MC on a consolidated basis, incurred consistent losses as a result of trading in MGA brand consumer electronic products. On a consolidated basis, MC and MIC lost a total of $ 7.7 million between 1970 and 1974. As a result of these sustained and substantial losses during approximately four years of operation, MIC decided in 1974 to cease selling MGA brand consumer electronic products. In October, 1974, MIC sold the assets of its MGA Division to Melco Sales, Inc. for $ 18.7 million.

  Plaintiffs advance three theories of liability as to MC and MIC. First, they contend that MC and MIC were participating members of the alleged manufacturers' conspiracy. However, the only facts plaintiffs have adduced as to MC and MIC are that (1) MC participated in the JMEA meetings and in meetings of two low-level JMEA committees; (2) MIC was a member of the Japan Light Machinery Information Center in the United States; (3) MC and MIC sold consumer electronic products as to which the manufacturers allegedly rebated; (4) MIC's MGA Division offered advertising allowances; and (5) MIC sold at prices below the check prices. We shall analyze these allegations in terms of both direct and circumstantial evidence. Second, plaintiffs argue that even if MC and MIC did not directly participate in the alleged conspiracy, they should be held liable for it as the "intimate affiliates" and "functional subsidiaries," respectively, of Melco. Third, plaintiffs seem to argue that MIC should be held vicariously liable for the alleged conspiracy because it was an "agent" of Melco. In addition, plaintiffs raise two procedural grounds for denial of MC and MIC's motions: (1) the alleged insufficiency (under Rule 56) of MC and MIC's affidavits; and (2) a claim of discovery misconduct by MC and MIC (as well as by Melco and Melco Sales).

  The record plainly affords no support for the direct evidence conspiracy claim. The plaintiffs concede, as they must, that MC was not a member of the Okura Group, the Palace Group, the Palace Preparatory Group, the Tenth Day Group, the MD Group, the TS Group, or any of the other allegedly conspiratorial groups operating sub rosa in Japan. MC was not a member of the Market Stabilization Council. MC was not a signatory to any of the Manufacturers' Agreements. Nor was MC a target of any investigation by the JFTC.

  Plaintiffs rely upon MC's membership in the JMEA, in the JMEA Transistor Radio Export Examination Committee, and in the JMEA Television Subdepartment of the Electric Home Appliance Department. However, beyond mere membership, which cannot create a genuine issue of material fact as to conspiratorial activity, plaintiffs have offered no evidence as to the activities of either committees except for the bare allegation that the television subdepartment discussed "trade activity." *fn317" Although plaintiffs ask us to, we cannot draw negative inferences against MC because of the absence of documentary evidence of the committee's activities. MC was also a member of the EIAJ, but an uncontroverted MC affidavit shows that that membership involved products other than CEPs. *fn318"

  Having failed to adduce any probative evidence of MC's participation in conspiratorial activities in Japan, plaintiffs allege that MC and MIC are implicated in conspiratorial activity by virtue of their participation in the rebate scheme. *fn319" There are several facets to plaintiffs' claims in this regard. First, while plaintiffs do not allege that MC or MIC received rebates, there is an allegation that on one occasion MC and MIC facilitated a Melco rebating transaction. There is also an allegation that MIC itself engaged in rebating through its cooperative advertising program with its dealers. Moreover, plaintiffs seek to draw an inference of conspiratorial activity from their allegation that MIC was aware that certain private label purchases of Melco manufactured television receivers by Gamble Skogmo, Midland, Broadmoor Industries, and AMC were negotiated at prices below check price levels.

  Plaintiffs' evidence, even if admissible, is insignificant with respect to either participation or knowledge by either MC or MIC in any kind of "rebate scheme." *fn320" As we have explained above, knowledge of the rebate system was common, but that does not create an inference that MC or MIC knew that the rebates were the result of concerted activity. At all events, neither the evidence set out in n.320 nor any other information advanced by plaintiffs in this voluminous record reflects or is a basis for drawing an inference of participation by MC or MIC in any agreement with respect to rebates. *fn321"

  In the wake of this uncontradicted factual background, we must determine whether there is any inference that can reasonably be drawn from the evidence which, with any degree of logic, is suggestive of MC or MIC's participation in the "unitary" conspiracy.

  Plaintiffs' theory of the alleged conspiracy is that defendants' monopoly profits from the high price-fixed and closed Japanese market subsidized low price-fixed exports in the United States in order to take over the United States CEP market. Plaintiffs' explanation of the alleged economic motivation for this conspiracy is the desire on the part of Japanese manufacturers to maintain full production in the face of excess capacity without putting downward pressure on Japanese home market prices. However, plaintiffs' conspiracy theory as to MC and MIC cannot meet the conspiracy tests enunciated in Part VI.D., supra because it is totally illogical.

  First, there is no potential benefit to MC and MIC from a successful conspiracy; hence, they had no motive to participate. Neither MC nor MIC manufactured consumer electronic products in Japan or anywhere else. Nor did they distribute consumer electronic products in the Japanese "home" market. Indeed, for MC and MIC there was no "home market." Accordingly, neither MC nor MIC would have, or for that matter could have, fixed prices in Japan. Similarly, no business interest of MC or of MIC could have been furthered by any alleged protection of the Japanese consumer electronic products market.

  Second, because MC and MIC had no production capacity, they could not have had the full production motive plaintiffs' experts ascribe to the manufacturing defendants. Third, participation by MC and MIC was not needed by the manufacturers to achieve any end of the alleged conspiracy. That is because MC and MIC would be totally useless to any conspiracy which "allocate(d) among themselves the absolute volume of production and sale" of CEP's, for they had no production to allocate. Moreover, as trading companies, MC and MIC were in economic terms purchasers of consumer electronic products for resale, not sellers with market power.

  Fourth, the "elimination of competition" in Japan could in no way enhance MC and MIC's resale of consumer electronic products in the United States. Because MC and MIC did not participate in the Japanese market, they could derive no "monopoly" profits to subsidize their sales in the United States. Fifth, MC and MIC, as non-manufacturing trading companies, were not competitors of the manufacturer plaintiffs, Zenith and NUE, and thus would have little motive to drive them out of business. Finally, even if successful, the conspiracy as alleged could have conferred little if any competitive benefit on MC or MIC. Any benefits they could have derived from the success of the alleged conspiracy in increasing sales in the United States would have been entirely collateral.

  The sum of the foregoing discussion is that plaintiffs have adduced no direct evidence that MC or MIC participated in the alleged manufacturers' conspiracy, and that there is no reasonable inference that can be drawn from the evidence that they joined it, or even that they knew of its existence and were somehow complicitous with it, intending to further the scheme. Neither does the vertical relationship between MC and MIC and Melco, which involved such matters as plant visits, *fn322" office sharing, *fn323" and price negotiations, all of which are invoked by plaintiffs, provide any basis for inferring a conspiracy. Discussions of and agreements as to price and supply relationships among vertically positioned firms simply do not raise any inferences of conspiratorial knowledge by the customer of the anticompetitive purposes of its suppliers. *fn324"

  Plaintiffs' only remaining basis for attempting to hold MC and MIC into the case is a function of plaintiffs' allegations about the relationship between these two firms and Melco. These claims, in turn, stem mainly from the alleged present-day remnants of the historic ties between Melco and MC and MIC, and from plaintiffs' claims about the "Mitsubishi Group." We adverted to this matter in Part VII.Q.7, supra. Few points in this case have received more heated discussion. MC and MIC have forcefully, indeed persuasively, argued that the zaibatsu is long dead and that MC and MIC are totally independent from Melco. In their submission, the only current viability of the "Mitsubishi Group" notion is for advertising purposes. Plaintiffs, on the other hand, vigorously assert that the notion of the "Mitsubishi Group" is still a meaningful one. They point to interlocking directors and cooperative activity among the companies, and assert that MC was Melco's "functional subsidiary," with the result that MC and MIC are chargeable for Melco's complicity in the alleged "unitary" conspiracy. *fn325" However, we need not reach this issue because, since the plaintiffs have no evidence to link Melco to the alleged conspiracy, they cannot hold in MC or MIC on any "functional subsidiary" theory. *fn326"

  10. Sears

  Sears is the world's largest retailer. The nature of its operations is a matter of common knowledge and does not require elaboration here.

  The plaintiffs charge that Sears, as early as 1963, joined in the conspiracy of the Japanese manufacturing defendants and their sales subsidiaries to drive down prices and destroy the U. S. CEP manufacturing industry. Plaintiffs do not charge that Sears joined some different conspiracy, but rather the "unitary" conspiracy which we have described at such length, supra. Plaintiffs have made some perfunctory assertions about Sears' involvement in the "Japan-side" of the "unitary" conspiracy, which they have, in essence, abandoned. *fn327" Their more seriously conceived allegations about Sears' complicity are twofold. The first relates to Sears' alleged involvement in the "rebate scheme" we have described, and the second is that Sears acted anticompetitively by way of its complicity in the acquisition of Warwick by the Sanyo interests. *fn328"

  With respect to the Warwick transaction, which we take up first because it can be disposed of briefly, there is no evidence other than that: (1) Sears attempted to preserve Warwick, engaging in a variety of financing arrangements for its benefit in addition to long-term loans, and (2) Warwick failed in spite of that support. See Part VII.N.3, supra. Given that Sears had a 25% interest in Warwick, in addition to its millions of dollars worth of outstanding long-term loans which it would stand to lose if the alleged conspiratorial objectives were accomplished, it would have been irrational for Sears to conspire to destroy Warwick.

  Turning to the rebating "scheme," Zenith's allegation against Sears has three aspects. The first relates to Sears' purchases of Japanese-manufactured television receivers (from Sanyo and Toshiba) at prices which were below the check prices and which, consonant with plaintiffs' generalized conspiracy claims, were "sufficiently low to obtain the business" and to displace U. S. domestic suppliers. We take this up in conjunction with the second aspect, which lies in the allegations that, to conceal the actual export prices in these transactions, Sears systematically falsified the various invoices, purchase orders, letters of credit, and other formal documents reflecting the price at which the goods were being exported from Japan and imported into the United States by the declaration of erroneous prices, and that the "pattern of false customs declarations" was accompanied by the payment of secret rebates. *fn329" The third aspect of Zenith's claims about Sears' participation in the rebate scheme lies in plaintiffs' allegations about Sears' participation in legal maneuvers to thwart the U. S. Treasury Department 1921 Antidumping Act investigation.

  Zenith contends that Sears' participation in the rebate conspiracy enabled Sears "to regularly sell consumer electronic products manufactured for (it) by its Japanese suppliers at prices far below levels at which Zenith and other manufacturers could compete and far below the fair market value of such products, and to achieve a level of sales far above what it would otherwise have enjoyed, but for its participation in defendants' concerted program." Plaintiffs allege that without the rebates, which reduced the actual price for television receivers below the check price, Sears could not have been competitive in the American market with respect to the sale of Sanyo and Toshiba television receivers and that the rebates afforded Sears the power to aggressively promote the Japanese manufactured television receivers in its retail outlets. The amounts of the rebates were enormous: in 1971, for instance, Sanyo alone rebated to Sears $ 2.47 million, and for the four years 1969 through 1972, inclusive, the rebate amount was over $ 7 million. As of the time of the writing of plaintiffs' FPS, Sears' sales of television receivers accounted for over 11% of the United States market. Zenith complains that it was Sanyo and Sears' hope that they would ultimately seize the majority share of the U. S. market.

  Description of the rebate scheme as it involves Sears, Sanyo, and Toshiba occupies almost 500 pages of the FPS. The facts are advanced through references to a large number of documents which set forth the dramatis personae of the scheme and detail numerous individual sales transactions. We have described in Part VII.L, supra the various devices by which rebates were paid by Sanyo and Toshiba to Sears, and need not repeat that description here.

  The FPS description details the "double billing" and "over-under" devices also described in Part VII.L and alleged to be the means to conceal the rebates from U. S. Customs. Sears, supported by evidence, vigorously denies the allegations that it concealed the rebates, discounts, and allowances or that it deceived U. S. Customs authorities. The plaintiffs, armed with different evidence, argue vigorously that Sears did indeed practice such deception. Plaintiffs contend that Sears' participation was not just in one-on-one transactions with its principal Japanese suppliers, Sanyo and Toshiba, but rather as part of the conspiracy of all defendants to conceal the actual prices at which CEP's were exported from Japan into the United States. Plaintiffs describe this as a critical and integral component of the conspiracy, asserting it to be one of the principal means by which the conspiracy was implemented.

  Even if we assume that the numerous Sears-related documents which plaintiffs have referenced in their FPS and their final summary judgment briefs, many of which were before us as DSS's at the pretrial evidentiary hearings, are admissible, *fn330" they are not sufficient by themselves or in combination with other evidence to create a genuine issue of material fact as to the existence of a conspiracy among the various defendants, including Sears, because: (1) no direct evidence in the record reflects knowledge by Sears of the objects and purposes of the alleged "unitary" conspiracy or participation by Sears in that conspiracy; *fn331" (2) no circumstantial evidence has been called to our attention from which it can be inferred that Sears was a participant in any concerted activity with respect to rebates; *fn332" and (3) it is clear that the inference that Sears participated in a "unitary" conspiracy to maintain high prices in Japan and low prices in the United States for the purpose of destroying United States manufacturers of consumer electronics products is totally illogical and does not meet Bogosian/Venzie standards.

  First, Sears had nothing to gain and much to lose from the crippling and destruction of the United States CEP industry. It would clearly be in Sears' economic interest as a buyer to preserve as many competing sellers as possible (including Warwick) for present and future considerations.

  Second, because the Japanese manufacturing defendants are sellers and Sears is a buyer, Sears' interests cannot be aligned with those other parties who were its alleged coconspirators. It is always in a buyer's economic self-interest to obtain as low a price as possible. It is only a buyer's rejection of a better offer that is so contrary to his apparent economic self-interest that can justify an inference of conspiracy. We fail to perceive how Sears' acceptance of better offers from its Japanese vendors, especially if it played off one against the other in order to get the better deal, can lead to an inference of conspiratorial conduct. *fn333"

  Third, although plaintiffs complain that Sears (with Sanyo's concurrence) was striving vastly to improve its market position, thus to achieve some kind of monopoly, the desire for increased market share is a normal desire of any company acting unilaterally in its own self-interest. *fn334" Given the foregoing facts and analysis, the only drawable inference is that Sears acted at all times in the pursuit of what it perceived to be its own economic self-interest, and totally inconsistently with any notion of conspiratorial activity. *fn335"

  Fourth, our earlier discussion explains why no inference of conspiracy can be drawn from the facts, if true, that there were irregularities in the reporting to U.S. Customs of Sears' purchases from Sanyo and Toshiba, or that Sears was a party to material falsification to Customs or to the withholding of material information from it. Participation in the rebate scheme and even falsification to Customs with the view of preserving the low net price are far more consistent with attempts to obtain the lowest possible price for Japanese CEPs and to avoid detection so as to retain the price advantage than with any predatory low price export conspiracy.

  Turning to the remaining facet of plaintiffs' "rebate scheme" claims, the plaintiffs allege that in approximately mid-1970, when it became generally known in the trade that U.S. Customs and the Department of the Treasury (of which Customs is a part) were tending toward a decision to issue a notice of withholding of appraisement in the investigation of alleged dumping of television sets from Japan, Sears, in concert with other importers, took a number of actions "pursuant to the alleged conspiracy" in an attempt to halt the dumping investigation before the government discovered the alleged secret rebates which Sears and others were allegedly conspiring to conceal. *fn336"

  However, the undisputed facts show that, at most, Sears and others with common interests: (1) discussed possible presentations before the U.S. Tariff Commission; (2) consulted jointly with respect to institution of litigation to enjoin the investigation; and (3) acted jointly in an attempt to persuade the Secretary of the Treasury and his subordinates to take certain actions in connection with the TV antidumping investigation. As we explained in Part VI.A.8 above, even if plaintiffs' allegations are accurate, the allegedly offending activity is protected and cannot be the basis for a finding of conspiracy. *fn337"

  11. Motorola

  Motorola needs relatively little more introduction than Sears. For many years, Motorola was known as a major U.S. producer of consumer electronic products, including television receivers. In recent years, Motorola has attained prominence in research and development and marketing of semi-conductors. Plaintiffs' claims that Motorola is involved in the "unitary" conspiracy emanate from three sources: (1) Motorola's purchase of Japanese television receivers at depressed prices and its participation in the rebate scheme, allegedly with knowledge of the overall conspiracy; (2) Motorola's sale of its consumer electronic products (Quasar) division to Matsushita; and (3) Motorola's activities in connection with certain joint ventures in Japan. We take up these matters seriatim.

  During the 1960's, Motorola was interested in purchasing CEP's in Japan. It first established an office and then a wholly owned subsidiary, Motorola Service Co., Ltd. ("MSCL") there. Zenith has alleged that Motorola then became aware that check prices were established by a "major Six Company conference consisting of presidents and/or vice presidents only." *fn338" However, assuming that the existence and etiology of the check prices were not common knowledge *fn339" and that the documents relied upon to prove Motorola's "knowledge" are admissible, there is still no evidence from which it could be inferred that Motorola knew of the nature of the alleged unitary conspiracy. *fn340" Neither is such knowledge established, as plaintiffs suggest, by the fact that an employee of MSCL, one Shigemitsu ("Shiggy") Nakano had "good connections in the highest places." *fn341"

  There is evidence from Motorola's negotiations with Sharp for the purchase by Motorola of Sharp-manufactured television receivers that Motorola was aware of the practice of rebating to circumvent MITI check prices, for that transaction involved a rebate. Problems resulting from the U.S. antidumping investigation developed in connection with payment of that rebate, and there is considerable dispute whether the rebate due from Sharp to Motorola on that transaction was ever paid. There is also dispute as to whether Motorola revealed "all" to the United States Customs Service as it (with supporting documentation) strongly affirms. *fn342" However, the ultimate point is that, notwithstanding Motorola's awareness and even possible participation in rebating, there is no evidence that Motorola knew of or participated in the "unitary" conspiracy. To infer from knowledge that the Japanese sold at low prices that Motorola had knowledge of a low price conspiracy to drive U.S. manufacturers out of business would be impermissible speculation.

  Zenith argues that Motorola's purchase of Japanese CEPs at low (net) prices as the result of a rebate itself creates an inference of Motorola's complicity in the alleged conspiracy. However, as was the case with Sears, it was plainly in Motorola's interest to get the best price it could on Japanese manufactured goods. *fn343" Moreover, it is undisputed that: (1) in 1967, Zenith and RCA were already selling or planning to sell 14 color television receivers; (2) Motorola did not have a 14 set in its line; and (3) the purchase from Sharp filled that gap, enabling Motorola to respond to the competition while it developed its own domestic production capacity. By 1970, when Motorola was able to manufacture 14 color televisions in its own production facility in the United States, it stopped purchasing from Sharp and never again purchased Japanese television receivers. Thus, because of Motorola's unique situation vis-a-vis the other defendants and alleged coconspirators, it was in Motorola's interest to purchase the television receivers from Sharp. This fact not only controverts Zenith's contention that the purchase of imported television receivers necessarily tended to destroy the domestic industry, but also closes the ring on plaintiffs' attempts to infer a Motorola role in the "unitary" conspiracy from consciously parallel interdependent action. It is plain that plaintiffs cannot pass the Bogosian/Venzie test as to Motorola, whose actions were undisputably in its self-interest. Motorola's conduct is inconsistent with conspiracy and points unerringly towards rational independent choice.

  Apparently recognizing that there is no circumstantial evidence of Motorola's involvement in the alleged "unitary" conspiracy, Zenith asserts that Motorola became a coconspirator by virtue of the sale of its consumer electronics (Quasar) division to Matsushita. *fn344" We explained in Part VII.N.2, supra, why that sale does not help plaintiffs' case. Zenith's board chairman, Mr. Nevin, has himself conceded that Motorola "abandoned the U.S. television market because (it) could not earn adequate profits in it."

  Finally, Zenith asserts that Motorola's involvement in the conspiracy is demonstrated by the ramifications of its joint ventures in Japan, principally that with Alps Electric Company, Ltd., creating Alps-Motorola, Inc. ("AMI") to engage in the manufacture and sale of tape players. Because AMI is the final vehicle through which Zenith seeks to link Motorola to the conspiracy, the uncontradicted facts respecting AMI bear recitation. As will be seen, none of these matters demonstrate a unity of purpose, design, or understanding between Motorola and the alleged conspiracy or constitute any evidence thereof.

  First, none of Zenith's general conspiracy allegations pertain even remotely to AMI. Zenith does not offer evidence that any product manufactured by AMI was dumped, *fn345" that AMI sold anything at high prices in Japan or at low prices in the United States, or that AMI fixed prices or was a party to cartel agreements or check prices. Zenith does not claim that any "check price" was ever established for any AMI product or that AMI ever paid anyone a "secret rebate." Zenith does not claim that AMI attended any of the "conspiratorial meetings" in Japan. Moreover, despite the fact that AMI was a member of the EIAJ and was active in a number of its committees, Zenith has not identified any EIAJ meetings which AMI attended or adduced any evidence about anything AMI did or said in connection with the EIAJ.

  Second, AMI, which was dissolved in 1978, manufactured a single type of consumer electronic product tape equipment and not television receivers. *fn346" Third, Motorola's joint venture is thus no different from the hundreds of other joint ventures by American companies in Japan, including those contemplated by Zenith. *fn347" Fourth, AMI answered four sets of Zenith's interrogatories and denied any and all involvement in the alleged conspiracy or any aspect of it. Zenith has not attempted to contradict any of those sworn assertions, and has not produced any evidence which would render the AMI venture, or any other Motorola joint venture, conspiratorial in nature. *fn348"

  To summarize as to Motorola: (1) Zenith does not claim that Motorola sold anything in the United States at low prices; rather, Zenith would appear to maintain that Motorola was driven out of the CEP business by low prices charged by the alleged conspirators; (2) Zenith does not claim that Motorola sold anything in Japan at high prices; instead, Zenith claims that Motorola was excluded from Japan because the other defendants suspected that Motorola would disrupt the alleged conspiracy; (3) Zenith does not allege that Motorola dumped anything into the United States; (4) Zenith does not claim that Motorola engaged in price discrimination; (5) Zenith does not claim that Motorola participated in the "cartel" agreements; (6) Zenith does not claim that Motorola participated in any conspiratorial groups or associations; (7) Zenith has no evidence of knowing participation by Motorola in any rebate-related predatory low price export conspiracy; and (8) it is plain from Zenith's evidence that it would not be rational to conclude that any of Motorola's reported conduct was the product of the conspiracy alleged instead of an independent business response consistent with its economic self-interest. Plaintiffs thus have no conspiracy claim against Motorola which can survive summary judgment.

  12. The Sales Subsidiaries

  Plaintiffs, in an effort to link the subsidiaries to the parent companies' membership in the conspiracy, have devoted an enormous number of pages of their FPS and their summary judgment briefs to detailing the relationships between the eight principal Japanese defendants and such of their sales subsidiaries as have also been named defendants in this case. Those sales subsidiaries are either sales companies in Japan (e.g., MET, Hitachi Kaden) or sales companies in America (e.g., MECA, TAI, HSCA, SEC, etc.).

  The law is clear that mere corporate affiliation is insufficient to establish conspiracy. H&B Equipment Co. v. International Harvester Co., 577 F.2d 239 (5th Cir. 1978); Overseas Motors, Inc. v. Import Motors, Ltd., 375 F. Supp. 499 (E.D.Mich.1974), aff'd, 519 F.2d 119 (6th Cir.), cert. denied, 423 U.S. 987, 96 S. Ct. 395, 46 L. Ed. 2d 304 (1975); Sherman v. British Leyland Motors, Ltd., 601 F.2d 429 (9th Cir. 1979); DuPont Glore Forgan, Inc. v. AT&T, 437 F. Supp. 1104 (S.D.N.Y.1977), aff'd mem., 578 F.2d 1366 (2d Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 465, 58 L. Ed. 2d 431 (1978). Even though affiliated firms are legally capable of conspiring among themselves, the mere fact of affiliation does not relieve plaintiffs of the burden of proving that they conspired. H&B Equipment Co., Inc. v. International Harvester Co., 577 F.2d 239 (5th Cir. 1978); Knutson v. Daily Review, Inc., 548 F.2d 795, 803 (9th Cir. 1976), cert. denied, 433 U.S. 910, 97 S. Ct. 2977, 53 L. Ed. 2d 1094 (1977); Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., 467 F. Supp. 841 (N.D.Cal.1979). Indeed, the principle that plaintiffs must prove that affiliates actually conspired applies to wholly-owned parent-subsidiary relationships, DuPont Glore Forgan, Inc. v. AT&T, 437 F. Supp. 1104 (S.D.N.Y.1977), aff'd mem., 578 F.2d 1366 (2d Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 465, 58 L. Ed. 2d 431 (1978), and to an unincorporated division of a parent company, H&B Equipment Co. v. International Harvester Co., 577 F.2d 239 (5th Cir. 1978).

  We have explained that there is no evidence tending to show that any of the subsidiaries were members of the "unitary" conspiracy. Given the legal principles we have just explained, it is clear that the evidence of corporate affiliation does not supply the missing link. We turn then to the question of agency.

  The principles relevant to deciding whether a subsidiary is the agent of its parent corporation were recently reviewed by Judge Caleb Wright in Japan Petroleum Co. (Nigeria) Ltd. v. Ashland Oil Co., 456 F. Supp. 831, 840-41 (D.Del.1978):

  

Whether an agency relationship exists between a parent corporation and its subsidiary is normally a question of fact. The central factual issue is control, i. e., whether the parent corporation dominates the activities of the subsidiary.

  

In order to determine whether or not a sufficient degree of control exists to establish an agency relationship, the Court must look to a wide variety of factors, such as stock ownership, officers and directors, financing, responsibility for day-to-day operations, arrangements for payment of salaries and expenses, and origin of subsidiary's business and assets.

  (citations and footnote omitted). See also Walker v. Newgent, 583 F.2d 163, 167 (5th Cir. 1978), cert. denied, 441 U.S. 906, 99 S. Ct. 1994, 60 L. Ed. 2d 374 (1979); Pacific Can Co. v. Hewes, 95 F.2d 42 (9th Cir. 1938); Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., 467 F. Supp. 841 (N.D.Cal.1979). As Judge Wright noted, the existence of an agency relationship is a conceptually distinct question from the notion of "piercing the corporate veil." 456 F. Supp. at 839. However, the mere fact that one corporation owns a controlling interest in another does not render the subsidiary the agent of the parent:

  

"A corporation does not become an agent of another corporation merely because a majority of its voting shares is held by the other...." Nor does the fact that a parent and a subsidiary have common officers and directors necessarily indicate an agency relationship.

  456 F. Supp. at 841, quoting Restatement (Second) of Agency § 14 M (citations omitted).

  Just as we have, in the preceding sections, analyzed the evidence against each subsidiary and found it wanting, we have analyzed the evidence against the parents and have found no genuine issue of material fact as to their participation in the alleged conspiracy. Accordingly, given the intricacy, under the caselaw, of the agency determination, there is no point to lengthening this opinion by a detailed analysis of the web of corporate relationships adduced in the record in order to make it; hence we do not do so. *fn349"

  R. Preliminary Determination of Sufficiency of Conspiracy Evidence under F.R.E. 104(a)

  As we have noted, one of the purposes of the in limine hearings was to enable the making of a preliminary determination pursuant to F.R.E. 104(a) as to the admissibility of coconspirator statements under F.R.E. 801(d)(2)(E). We have explained in Part VI.D.6 the requisites developed by the Third Circuit for admissibility of coconspirator declarations. Under those principles, before a coconspirator statement may be introduced the court must make a factual finding by a preponderance of the evidence aliunde (i. e., exclusive of the coconspirator statements) that a conspiracy existed and that both the nondeclarant against whom the statement is offered and the declarant were participants in the conspiracy at the time the statement was made. *fn350"

  Were the tenor of the voluminous record in this case other than we have described, such a preliminary determination would probably require a lengthy opinion in and of itself. However, for the reasons heretofore explained, and summarized in Part VII.S, infra, plaintiffs have not even adduced sufficient evidence to create a genuine issue of material fact as to the existence of an unlawful conspiracy among the defendants. A fortiori, there is no evidence aliunde, by a preponderance of the evidence or otherwise, upon which to found a preliminary determination of the existence of a conspiracy.

  We do not, however, rest upon the "a fortiori " premise. Rather, having examined the record and having detailed its contents over these many pages, we simply make the factual finding that plaintiffs have not established by a preponderance of independent evidence that any of the defendants entered into an agreement or acted in concert with respect to exports to the United States in any manner which could in any way have injured the plaintiffs.350A Put differently, we find that the plaintiffs have not established by a preponderance of independent evidence that any of the defendants engaged in the "unitary" conspiracy alleged by plaintiffs (or, for that matter, either the home market or export facets thereof). For these reasons also, the proffered coconspirator statements are inadmissible.

  S. Summary of Conclusions as to Plaintiffs' Sherman Act § 1 and Wilson Tariff Act Case as to Television Receivers

  1. Introduction

  At the appropriate juncture in each of the subparts of this Part VII, in which we have examined plaintiffs' Sherman Act § 1 and Wilson Tariff Act case as to television receivers, we have moved from a review of the details of the voluminous evidence in the summary judgment record to a statement of our conclusions as to the legal sufficiency of that evidence, measured against our earlier discussion of the applicable legal principles. Because of the great length of the evidentiary review, we believe it important to summarize in one place the salient conclusions we have reached on the question whether admissible evidence sufficient to create a genuine issue of material fact supports plaintiffs' theory that the defendants and their coconspirators entered into a "unitary" conspiracy consisting of an artificially high price conspiracy in Japan designed to fund a predatory export raid on the U.S. CEP market calculated to destroy and take over that market.

  We confess to some misgivings about such a summary, for it is impossible to convey in a brief description any sense: (1) of the scope of the factual record; (2) of the many-faceted analysis of that record which has led to our ultimate conclusions; or (3) of the innumerable legal points which have impacted on those ultimate conclusions. We also are concerned that such a summary could be used as a surrogate for the opinion itself. That is an unfortunate and misleading possibility, since the opinion was crafted as an integral whole. Moreover, we are reluctant to extend this already lengthy opinion by repeating conclusions previously stated. However, because we believe that the importance of such a summary still outweighs its disadvantages, we hereby offer it.

  2. The Export Control Arrangements

  We begin with the export control arrangements, embodied in the MITI-related Manufacturers' Agreements and the JMEA Rules. These agreements were the cornerstone of plaintiffs' original formulation of their case the "heart" of the alleged conspiracy. Even though the plaintiffs have ceased to place significant reliance on these arrangements themselves, except in conjunction with the "rebate scheme," the "cartel agreements" (as the plaintiffs call the Manufacturers' Agreements), as embellished by the JMEA Rules, remain plaintiffs' veritable Rosetta Stone their quintessential evidence of defendants' opportunity and intention to conspire, providing the key to the decipherment of defendants' actions, which, in all their "protean" forms, thereby take on a conspiratorial hue. We address here the two challenged facets of the export control arrangements: the Manufacturers' Agreements, which set prices below which the signatory Japanese manufacturers, including defendants, could not sell in the United States, and the JMEA Five Company Rule, which purportedly limited the number of U.S. customers to which JMEA members could sell, and which plaintiffs contend constitutes an illegal customer allocation.

  The Manufacturers' Agreements fix minimum or "check" prices. Even if the arrangements had in fact worked as intended, they could have served only to keep prices elevated. As competitors of defendants, plaintiffs could only be benefited by minimum prices. Although a consumer forced to pay higher prices than a free market would bring (or the Justice Department on behalf of the public) might maintain an action against manufacturers who adhered to a minimum price agreement on a price fixing theory, plaintiffs, as competing manufacturers, are unable to demonstrate any causal relationship between the alleged antitrust violation (in this instance the minimum prices) and their alleged injury. Hence they suffer no antitrust injury from such arrangements and lack standing to attack them.

  Plaintiffs' argument that they possess standing to attack the Manufacturers' Agreements because of the allegedly low or depressed level at which the minimum prices were set is without merit. No matter at what level the prices were set, the parties to the agreements remained free to sell at any price which equalled or exceeded the minimum price. The agreements could have had no impact on prices except in those instances when the signatories, if left to exercise independent judgment, would have charged prices lower than the minima. In such instances, the agreements would have had the effect of raising prices. Since nothing in the agreements had the effect of lowering prices, no matter at what level the minimum prices were set, plaintiffs' contention that the minimum prices were "unduly" low is of no significance. (There is, however, no evidence that they were "unduly" low.)

  The final problem with plaintiffs' attack upon the Manufacturers' Agreements is the fact that in the later stages of this case they jettisoned this argument, bottoming their case instead on the contention that the agreements were in fact disregarded by virtue of the rebate scheme. Plaintiffs' case is thus transformed into a claim that defendants agreed to violate the price fixing agreement by engaging in a scheme of secret rebates in varying amounts. However, such an agreement, if it existed, would be in intent and purpose the same as an agreement to compete, for unless there was collusion in the rebate scheme an agreement to violate a price fixing agreement by returning to the competitive status quo can only enhance competition.

  Plaintiffs also claim injury as a result of the so-called "Five Company Rule" promulgated by the JMEA which, on its face purported to restrict each Japanese exporter to five U.S. customers at a given time. Plaintiffs contend that the rule constituted a horizontal market division illegal under § 1 of the Sherman Act. There are two problems with this contention.

  First, the incontrovertible evidence is that the Five Company Rule did not in theory or in practice limit Japanese exporters to five customers. Nothing in the rule prohibited members of the JMEA from registering their U.S. subsidiaries as export customers, and nothing in the rule prohibited those subsidiaries from reselling products in the United States free of the Five Company Rule. Moreover, trading companies could also be listed as customers. Most Japanese manufacturing defendants followed the practice of listing a U.S. subsidiary, a trading company, or both among their customers. Some of the Japanese manufacturing defendants had in fact more than five customers at any given time.

  Second, even if the Five Company Rule had worked as intended, it could alone only have had the effect of keeping prices elevated. As with minimum prices, such an effect would redound to the benefit of plaintiffs, negating the possibility of antitrust injury. Although plaintiffs have argued that the supposed customer allocation could have enabled the Japanese defendants to "concentrate" on given customers, they have offered neither logical nor factual support for that contention. See discussion at n. 72 and p. 1213, supra. Nor have plaintiffs explained how, in the competitive United States market, the defendants could compete with United States firms but not with one another.

  As we have noted above, the export control arrangements are viewed by plaintiffs as a brooding omnipresence. However, even if the Manufacturers' Agreements and associated JMEA Rules are viewed in a conspiratorial light, the law is clear that a different conspiracy, i. e., one to fix prices by concerted rebate action at less than check price level, cannot be inferred therefrom. Nor is mere opportunity to conspire a basis for inferring conspiratorial activity. We discuss the "intention" reflected by the Manufacturers' Agreements infra.

  3. The Alleged Japanese Home Market "War-Chesting" High Price Conspiracy

  Evidentiary analysis of the home market aspect of the conspiracy will, for purposes of convenience, be divided into three facets: pricing policy, profits, and data exchange, which we take up seriatim. The bulk of the evidentiary foundation for plaintiffs' claims in this area comes either from documents seized by the JFTC in conjunction with the "Six Company Case" or from documents produced in discovery relating to groups and associations in Japan, primarily committees of the EIAJ. None of these materials contain direct evidence of conspiracy. Nor are any of the materials a proper basis for the drawing of inferences that any of the defendants in fact engaged in a high price home market conspiracy designed to fund a predatory export raid upon the American CEP manufacturing industry.

  The evidence shows that the Japanese manufacturing defendants met sub rosa during the two-year period from 1964 to 1966, when the Japanese CEP market was over-saturated and retail prices were rapidly declining, with many accompanying business failures of retailers. There is evidence that the conferees discussed "bottom" prices. The evidence is, however, uncontradicted in the following respects: (1) the "bottom" price was not the actual retail selling price, but rather the suggested retail price; (2) there was no relationship between the "bottom" price and the actual selling price because of a plethora of rebates (and because of retailer discretion); (3) the manufacturers were free to proceed with whatever "bottom" price they wished; (4) the "bottom" price was at all events not a high price, but rather as low a price as the manufacturers could bear without letting their retail market disintegrate, i. e., one consistent with protecting retail margins; and (5) the "bottom" price was sufficiently low to be logically inconsistent with plaintiffs' "war-chesting" theory.

  The evidence shows that prices in Japan for both monochrome and color TV steadily declined over the period during which defendants were supposedly engaged in the high price home market conspiracy, and there is no evidence that prices rose again. There is no evidence of what plaintiffs contend to be the normal or competitive price levels in Japan for the period. There is no viable contention that a "bottom" price, as we have described it, is an artificially high price. In sum, there is no evidence that defendants sold at artificially high prices in Japan.

  There is also no evidence which would support a claim of "war-chesting". There is evidence that the conferees in the various Six Company Case sub rosa groups discussed the fixing of wholesale and retail margins along the distribution chain. However, the uncontradicted evidence is that the trend was to increase the margins so as to protect the retailers from collapse. This of course would have the effect of decreasing the manufacturers' profit, the opposite of what plaintiffs posit in support of their war-chesting theory. Moreover, there is no evidence that the Japanese manufacturing defendants achieved high profits in connection with their CEP sales in Japan. The only evidence on the point is that the profits earned were relatively low. Thus, the data in the record on prices and profits is totally unsupportive of plaintiffs' "war-chesting" theory.

  There is also evidence of domestic data exchange among the Japanese manufacturing defendants. The bulk of the data exchange evidence can be found in documents generated by EIAJ committees, although some of it was generated under the aegis of sub rosa groups. The EIAJ compiled and disseminated a large volume of statistical information, much of which was technical information, primarily of the product safety and standardization variety. Such exchange does not give rise to an antitrust violation, either alone or in combination with other factors. There is evidence of dissemination of aggregate information related to past production, sales, and shipment figures for various products and regions, present inventory figures, and projected demand forecasts. The evidence contains a suggestion that the conferees "voted" on future production in a manner which, in plaintiffs' submission, is consistent with an agreement to limit production and fuel a high price home market conspiracy (but which is also consistent with the statements of K. Matsushita introduced by plaintiffs that what was needed was an end to market "oversaturation"). Finally, there is evidence that individual production, sales, shipment, and inventory figures of the defendant companies (presumably those from which the aggregates were compiled) found their way into the files of other companies.

  The documents upon which the data dissemination claim is predicated, most of which refer to data exchange in connection with committee meetings, do not reveal who said what to whom, or which company representatives were present and/or voted on any of the proposals, or whether any of the proposals were ever implemented. Plaintiffs' data dissemination evidence is random, unfocused, and, because of plaintiffs' litigation strategy which we have described at pp. 1200-1202 supra, essentially unexplained. Beyond these factors, this evidence is insufficient to give rise to an inference of conspiracy for several reasons.

  First, the dissemination of aggregate production and inventory statistics unidentified as to company or transaction (a fair characterization of most of plaintiffs' evidence in this area) cannot support an inference of agreement violative of Sherman § 1. Second, exchange of individual production and inventory data cannot sustain such an inference in the absence of some evidence that the information was used in aid of collusive pricing activity, or of some purpose or effect to stifle competition in the manner charged by plaintiffs, and there is none. The evidence in this area is much more akin to Maple Flooring than to Container Corp., see generally Part VI.A.5, supra. Third, even assuming evidence of production limitation, there is no nexus between that evidence and the high price "war-chesting" conspiracy posited by plaintiffs, because: (1) a predatory export raid could only be funded by high prices and high profit in the domestic market, of which there is no evidence; (2) there is uncontradicted evidence that the defendants pursued a policy of increasing the margins of wholesalers and retailers to protect the distribution system at the expense of high profitability; and (3) plaintiffs' data dissemination evidence is, as we have noted, helter skelter, unfocused, and too ephemeral to supply the missing links.

  In sum, the plaintiffs have adduced no evidence to support their home market high price "war-chesting" conspiracy claims. *fn351"

  4. The Alleged Export Conspiracy: The "Japan-side" Evidence

  Plaintiffs have made it clear that they neither have nor will have any testimony supporting their contentions that the defendants engaged in an artificially low price export conspiracy, and they have based their case primarily on documents. For the nine years of this case prior to the pretrial evidentiary hearings, plaintiffs claimed that direct evidence of defendants' coordinated predatory export pricing could be found in the Six Company Case materials and certain other documents produced in discovery reflecting activities in Japan. Virtually all of this material was excluded in the Japanese Materials Evidentiary Opinion. However, even if the Six Company Case material and the other documents relied upon were admissible, they are too cryptic and amorphous to support an export price-fixing claim. Giving the plaintiffs the benefit of all the inferences, the documents cannot be read as evidence that the defendants fixed or even exchanged information concerning export prices.

  Plaintiffs have devoted tremendous energies to demonstrating that executives of the defendants were members of a large number of conventional trade associations and of trade groups which met sub rosa, and that the groups met regularly to discuss matters of common interest. Plaintiffs have enumerated the names of the committees in a manner which evokes, at least to plaintiffs, the possibility of conspiracy. These facts, however, cannot give rise to an inference that the defendants acted in concert. Moreover, plaintiffs' repeated protestations that the conferees at the meetings of the various groups and associations in Japan "weren't just whistling Dixie," and that it "belies reality" to believe that all of these meetings were not conspiratorial in nature, do not create an inference of a price-fixing conspiracy either. *fn352"

  Plaintiffs offer evidence of the dissemination of export-related data as evidence of conspiratorial activity, but it misses the mark. *fn353" The only evidence of dissemination of export price data is that of certain average past prices. There is no evidence of exchange of detailed, individually identifiable, actual price data. There is much less evidence of the dissemination of data with respect to production, sales, shipments, and inventory than in the case of the Japanese domestic market. Moreover, while the documents suggest that there was dissemination, primarily through EIAJ committees, of data in these areas, it was essentially aggregate export data not broken down as to export to the U.S. Export demand forecasts were also made, and there are vagrant references in the documents to "voting" on export shipments of stereos and TV's.

  Even assuming admissibility, that evidence does not help plaintiffs' case. Just as in the case of alleged domestic data dissemination, we have no idea who said or did what at any of the subject meetings; who was voting on what; or whether any plans or policies referenced in the "minutes" in these meetings produced by plaintiffs were ever implemented, and, if so, by whom. Because of plaintiffs' litigation strategy, there is no explanation of the export-related data dissemination documents, which are even more helter-skelter, random, and unfocused than the domestic documents. Because there is no breakdown as to company and no individual detail, and because the only statistics identifiable as export production, sales, shipment, and inventory statistics *fn354" are essentially aggregates, they are of no value in ascribing liability to any defendant. Any conclusion that there was a conspiracy is thus based upon speculation, not upon logical inference.

  None of the aforedescribed exchange of information is of the kind that violates the Sherman Act. We concluded in Part VI.A.5 that cases which have found Sherman Act violations on account of data dissemination have either involved an exchange of detailed, individually identifiable, actual price data, a concentrated industry, and a purpose or effect to restrain competition, or some other evidence of an actual agreement to restrain trade. The plaintiffs have offered no evidence of any of these matters here. Indeed, the result would not change even if there were evidence of exchange of individual company detail on non-price matters, for, as we have explained, this kind of data exchange will not violate the Sherman Act, at least in the absence of evidence of anticompetitive purpose or effect, of which there is none.

  Moreover, plaintiffs have shown no nexus between the alleged export data exchanged and the "unitary" conspiracy. Several points bear mention in this regard. First, an agreement to adjust "export" production levels might under some circumstances be helpful in keeping prices high, but such an agreement is not consistent with the main thrust of plaintiffs' export conspiracy theory, for it is illogical to assume that a group of companies which sought to flood the American market with CEP's at artificially low prices would agree to limit production. Second, plaintiffs have adduced no theory to explain how the kind of data dissemination alleged would be helpful to participants in a low price export conspiracy in the open, competitive U.S. CEP market in which the conspirators, as new entrants, had no power to affect either output or prices. *fn355" The record shows that Zenith and RCA had nearly 50% of the U.S. market and that there was competition among a large number of manufacturers. Under these circumstances, the analytical possibilities of a nexus between plaintiffs' evidence and the concerted predatory pricing conspiracy are nil. Third, the scenario portrayed by plaintiffs, even assuming that there were evidence to support it, cannot be a viable part of their "unitary" conspiracy theory in the absence of evidence, direct or circumstantial, of concerted pricing activity, and there is none.

  5. Plaintiffs' Argument Based Upon Alleged International Price Discrimination

  As a means of proving conspiracy by circumstantial evidence, the plaintiffs have offered comparisons of the prices which defendants charged in the United States and Japanese markets for allegedly comparable products. We ruled most of these materials inadmissible in our Expert Testimony Opinion. However, even assuming admissibility of some or all of these comparisons, evidence of price differentials between the U.S. and Japanese markets does not reflect consciously parallel interdependent business behavior, and hence is not probative of the conspiracy alleged in the complaint. Even if plaintiffs have shown sufficient evidence of consciously parallel conduct to raise a genuine issue of material fact precluding the grant of summary judgment on the parallelism and consciousness issues, they have failed to raise a genuine issue of material fact as to interdependence, or even to articulate a rational explanation of their theory of interdependence of defendants' allegedly parallel pricing. In the absence of such a genuine issue of material fact, their circumstantial evidence case collapses.

  The plaintiffs have adduced no evidence of uniformity in the prices of the defendants, which were at, above, and below the check price, and which were at the highest price level in the U.S. (Sony) as well as at lower levels. The cornerstone of plaintiffs' theory is that the defendants, acting in concert, charged whatever prices were necessary "to get the sale." They have adduced no evidence that there was any formal agreement to price at whatever price was necessary to get the business, but contend that this pricing policy is evident from the record and that it constitutes parallel conduct from which conspiracy can be inferred. *fn356" However, "pricing to get the sale" fails to set forth a logical theory of interdependence; instead it describes normal competitive behavior. Under the Bogosian/Venzie principles explained in Part VI.D.4, supra, an inference of conspiracy from parallel business behavior is not permissible as a matter of law unless the plaintiffs can show that the defendants' allegedly parallel behavior was interdependent, i. e., that it was inconsistent with the defendants' own economic interests.

  It is not against, but rather in, one's self interest to price "to get the sale." Companies do not need to conspire to sell at a price necessary to get the sale; indeed, when competitors make their investment, marketing, and pricing decisions, they necessarily assume that the competition will price to get the business. While the result of such practices may be depression of prices in the market, it is the kind of price depressing effect which flows from normal competitive pricing behavior and is precisely that which the Sherman Act is intended to secure, not condemn.

  There are other reasons for plaintiffs' inability to delineate a theory of interdependence of price differentials. While the Japanese defendants are well-established in Japan, during the pertinent times they were new entrants in the U.S. market, with unknown brand names and no goodwill or business reputations in the United States. Thus the defendants individually faced similar circumstances as new entrants in the U.S. market and could therefore be expected unilaterally to adopt similar pricing strategies to attract customers and gain consumer acceptance in this country. Such a reasonable response to the common business problems presented by the U.S. CEP market for foreign entrants does not support an inference of conspiracy.

  Plaintiffs have also failed to reckon with the difference in market conditions (or, in terms of economic theory, in the level of or elasticity of the demand curve) between the American and Japanese markets. Charging lower prices in the United States than they charge for similar CEP's in Japan would in no way undermine the unilateral character of defendants' conduct. Price differences between two markets where competitive conditions and income and spending patterns and products differ are to be expected and do not support an inference that the lower price is the result of an agreement.

  Although the plaintiffs have alleged that defendants deliberately sustained losses in the U.S. in the hope of taking over the U.S. CEP market and charging "monopoly" prices at a later date, there is no evidence to support that theory. Although plaintiffs have alleged that four of the defendants sold their products in the United States at prices below their costs, we ruled the only evidence offered to support that contention inadmissible in our Expert Testimony Opinion. Not only is there no evidence of any sustained losses, but a company's long-range independent economic interests may require it to operate at a loss for several years in order to become established in a new market. Additionally, there is no evidence that the defendants, after having "penetrated" the U.S. market, ever raised their prices to recoup their losses or ever earned monopoly profits. The notion that this might still happen also makes no sense, for the defendants, new entrants with still relatively small market shares, could not rationally hope to recoup their alleged losses in the United States in view of the dominant market positions held by RCA and Zenith and the ability of the European manufacturers, other far eastern companies, and major American firms swiftly to increase their United States CEP sales if higher monopoly prices were ever charged. We note in this regard that there is no evidence of high entry costs or barriers in the CEP manufacturing and distribution industry.

  In sum, plaintiffs' attempts to infer a conspiracy from "international price discrimination" founders on evidentiary grounds and fails completely as a matter of logical inference.

  6. The Alleged Collusive Predatory Export Rebate Scheme; "Benchmark" or "Reference" Prices

  Plaintiffs allege that the export facet of the "unitary" conspiracy was implemented through a "rebate scheme": that the rebates paid by the Japanese exporters to U.S. customers to evade the MITI check price were an integral part of the depressed pricing conspiracy, and that the rebates were a function of concerted activity as demonstrated by the consciously parallel interdependent action of the defendants in paying them. There is a vast record relating to plaintiffs' claims of a collusive predatory export rebate scheme, but the most important points which have been established (and these are without contradiction) are the following.

  From the early 1960's on there was a broad pattern of rebating by Japanese CEP exporters to American original equipment manufacturer and private label customers designed to evade the MITI-related check-price regulations. *fn357" Related to that evasion was a practice of reporting to U.S. Customs a price higher than the actual export price. While this resulted in the payment of higher initial duties, in plaintiffs' submission it constituted customs fraud (by allegedly evading even higher potential dumping duties under the 1921 Antidumping Act) and facilitated the antitrust violations complained of here. Although plaintiffs' case seems to depend heavily on the notion that the "rebate scheme" was clandestine, the existence of these practices in the CEP industry and many other industries had been widely known in the United States for a number of years.

  There is no evidence of parallel rebating practices. The pattern of rebating was variegated, with at least 25 different rebating techniques considered or employed by various of the defendants. *fn358" The evidence shows that the prices at which various CEP's were sold under the different rebate schemes were very different, that the amounts of rebates given by individual defendants differed, and hence that the net prices charged by the individual defendants were significantly different. Despite plaintiffs' contentions to the contrary, there is also no evidence that defendants had knowledge of each other's rebates except insofar as they might have learned of them from an American customer using another Japanese defendant's prices as a vehicle to extract a better bargain. *fn359" Not only is there no evidence that the Japanese exporters disclosed their rebate schemes to one another, but there is evidence that they sought to keep their rebates secret from the others.

  There is no direct evidence in this record that there was any discussion among the defendants concerning coordination of export prices at any level, much less at dumping levels, or any evidence from which such a conclusion could be inferred. The plaintiffs contend the check price was a "benchmark" or "reference" price from which the ultimate or actual price was determined. However, that contention has no substance in the total absence of evidence (or even of any credible theory) of any relationship between such benchmark or reference price and the ultimate actual price. As we have seen, the actual prices (and the rebates) were "all over the lot," and it is illogical to infer joint conduct from disparate behavior.

   As we have pointed out, plaintiffs maintain that the defendants, via the rebate scheme, were acting in concert to charge "whatever prices were necessary to get the sale." It may be that defendants were pricing "to get the sale," as demonstrated by their sales at, above, and below the check price, and by the documents which show them to have competed for the business of such American buyers as Sears Roebuck, J.C. Penney, Montgomery Ward, and Midland. The notion of pricing "to get the sale," however, while it may describe parallel business behavior, does not describe the consciously parallel interdependent business behavior which is necessary for an inference of conspiracy, for reasons we have already explained. It is not against, but rather in one's self interest to rebate if so doing obtains the sale, and it would be in the self-interest of American buyers (such as defendant Sears) to buy CEP's at the lowest possible price. It is not evidence of participation in a conspiracy to do so.

  Plaintiffs have adduced evidence from which it could be inferred that many of the Japanese defendants and their alleged U.S. importer coconspirators kept the rebates secret, not disclosing them to United States Customs. They have, however, adduced no evidence that defendants agreed to conceal the rebates or to defraud Customs. Moreover, there is uncontradicted evidence that a number of defendants did disclose rebates to Customs, which nonetheless preferred to ignore the disclosures so as to collect the higher duty. In any event, such non-disclosure, even if established, would not point to conspiracy, and hence would not advance plaintiffs' case, because it would be in the self-interest of the concealing party to avoid detection. *fn360" While such a practice might violate the customs laws, it does not offend the antitrust laws. The caselaw is clear that covert practices, including even illegal rebates, to obtain business are consistent with, rather than contrary to, the purposes of the antitrust laws.

  There is evidence that the executives of a number of defendants and their counsel met with private label customers to whom they had paid rebates to discuss the United States Treasury Department antidumping investigation. They discussed the anatomy and potential consequences of the investigation and appropriate strategies for defending against it, and they met with U.S. government officials in an attempt to deflect the investigation. However, such meetings constitute protected activity. In any event, joint response to common problems by similarly situated powers in an industry cannot form a basis for antitrust complaint.

  In sum, there is no evidence, direct or circumstantial, to support any of plaintiffs' theories of the existence of a collusive predatory export rebate scheme.

  7. The Supposed Connection Between the Alleged Domestic and Export Conspiracies

  Although there is no evidence of either the home market or export aspect of plaintiffs' "unitary" conspiracy theory, plaintiffs have sought to establish their existence, or at least their relationship, by so-called "connection" documents. The term "connection," as used by the parties, refers variously to: (1) a relationship between home market and export prices; (2) a relationship between home market and export sales and profits; (3) a relationship between "domestic" and "export" groups; and (4) efforts to conceal the rebate scheme. We described plaintiffs' so-called "connection" documents at great length in Part VII.H, supra. Most of these documents are inadmissible, but to the extent that they may be received in evidence, they do not establish any "connection" between the domestic and export prices or markets.

  Even assuming arguendo the existence of a high price "war-chesting" home market conspiracy, that is no basis, under the case law, for inferring therefrom the existence of an export conspiracy. Additionally, on the facts of this case, such an inference would be at odds with logic. It is an undisputed fact that during the period of the alleged conspiracy several of the manufacturing defendants with the greatest proportion of exports to the United States (Sharp, Sanyo, and Sony) had comparatively small shares of the CEP market in Japan. Conversely, a number of the alleged conspirators with the largest CEP sales in Japan (most notably Melco) had relatively small shares of the export market to the United States. Therefore, most of the alleged "subsidies" from the "high price" market in Japan would have been received by those conspirators who, under plaintiffs' conspiracy theory, would have needed them least.

  The proposition that firms like Sanyo and Sharp would have agreed to enter into a "conspiracy" in which they were to incur sustained losses in the United States, while their coconspirators with proportionately fewer U.S. exports were receiving the greatest share of the "high price" market in Japan, is also illogical, at least in the absence of evidence of reciprocal arrangements. Another of the innumerable flaws in plaintiffs' conspiracy case is their failure to offer even the barest evidence of an arrangement by the conspirators to divide the supposed spoils of (or share the losses from) the predatory export raid or to police their arrangements. This lacuna is magnified upon recollection that the Japanese manufacturing defendants are supposedly joined in the conspiracy by many, if not most, of the other CEP manufacturers in Japan. At all events, plaintiffs' amorphous claim of connection between the domestic and export conspiracies is totally unsupported by direct or circumstantial evidence.

  8. Plaintiffs' "Intent" Documents

  Among the documents most highly touted by plaintiffs have been the Rationales to the various Manufacturers' Agreements and certain statements made by Japanese executives which plaintiffs interpret as evincing a predatory intent to destroy the U.S. CEP industry. These documents prove no such intent.

  The Rationales, when read in their proper context, can be deemed to reflect only the concerted intention of the signatories to the Agreements that export prices not fall too low. Such an intention cannot injure Zenith. The rationales are also too general, and are susceptible to too many other inferences, to support plaintiffs' proposed use.

  The executives' statements, in general terms, evince the intention of Japanese manufacturers to increase their exports and to succeed in the U.S. market. Leaving aside the question whether public statements are a likely place to find evidence of conspiracy, we note that such statements are entirely consistent with an intent to compete. The competitive system contemplates that firms will seek to increase their market share by selling quality merchandise at low prices. If one begins with the presumption of conspiracy, it is easy to interpret such statements as: (1) the CEP industry is "Japan's heritage"; (2) "further efforts should be required to retain the U.S. market"; and (3) "militarily we can never defeat the United States, but economically we can become number one in the world," as evidence of conspiracy, but that is not a legally permissible inference. Indeed, it has been demonstrated that statements of intention to be "number one" have also been made by Zenith executives. Striving to be "number one" does not, without more, violate the Sherman Act, and the statements of "intent" upon which the plaintiffs rely (all of which are amorphous or general) are just not evidence of conspiratorial intent or behavior.

  9. Plaintiff's Evidence Concerning the Depletion and Destruction of the U.S. CEP Industry

  Plaintiffs have offered a plethora of statistics demonstrating the increase in Japanese imports into the United States, the decline in production of U.S. television receivers, the decline in "retail price points" in the U.S., and the deterioration of the U.S. television receiver manufacturing industry, all allegedly as the result of the defendants' activities. Plaintiffs seek to draw therefrom an inference of conspiratorial behavior. However, as we have explained in Part VII.M, such evidence is not probative of conspiracy. It is plain that the depletion of the U.S. CEP industry is as consistent with a number of other inferences, such as efficient foreign competition or inefficient U.S. management, as it is with the inference that the industry was harmed by a conspiracy among these particular defendants. In the total absence of any evidence of collusion, or of any evidence of anticompetitive activity on the part of defendants from which collusion could be inferred, it is impossible as a matter of law to infer the conspiracy alleged by plaintiffs from deterioration of the U.S. CEP industry. Such an "inference" would be mere speculation. *fn360"

  10. Plaintiffs' Evidence Concerning "Defendants' Systematic Price Discrimination in the U.S."

  Plaintiffs assert that systematic price discrimination in the U.S. was an integral part of defendants' conspiratorial plan to destroy their U.S. competition. The record contains very little evidence of such price discrimination. But even if there were cognizable evidence of price discrimination, it could not help the plaintiffs, for there is no logical connection between such price discrimination and the alleged "unitary" conspiracy. First, there is no evidence of collusion in connection with alleged price discrimination. The documents rescribed in plaintiffs' FPS on the point show widely disparate patterns, and we have been cited to no authority supporting the proposition that disparate conduct gives rise to evidence of conspiracy. Second, even assuming parallel conduct, plaintiffs' primary allegation of parallel conduct that defendants regularly charged substantially lower prices to their large preferred customers and chain stores than to other regular dealers for identical models of their CEP's tends to demonstrate rational independent decision-making in one's own self-interest, rather than conspiracy. Finally, there is an absence of focused evidence of sales to other types of customers below the prices set forth in defendants' answers to plaintiffs' interrogatories 45 and 46(c). The random nature of the evidence totally precludes any contention that the defendants' "price-discrimination in the U.S." is evidence of the "unitary" conspiracy.

  11. Plaintiffs' Claims Concerning Defendants' Acquisition of U.S. Manufacturers and Their Establishment of Manufacturing Facilities in the U.S.

  Plaintiffs have asserted that an important facet of the conspiracy was the "takeover and elimination by the defendants and their coconspirators of the United States manufacturers through a pattern of unlawful acquisitions, mergers, joint ventures, and the establishment of manufacturing facilities in the United States." These grandiose claims stem from evidence of but four corporate acquisitions and the establishment of eight manufacturing facilities in the United States (and three of the manufacturing facilities were acquired as a result of the corporate acquisitions). Not only is the plaintiffs' evidence thus limited, but they have adduced no evidence of collusion in connection with these matters. Moreover, the evidence in this area points only to the self-interest of the acquiring companies, acting to improve their individual efficiency or market positions.

  Although plaintiffs have assailed the background of the Matsushita acquisition of the Quasar Division of Motorola, there is no evidence that any of the allegedly complicitous parties, including Sony and its subsidiary, AIWA, acted in a manner contrary to their individual self-interests. The attempt to ascribe worldwide conspiratorial overtones to the acquisition of Magnavox by Philips fails by reason of the lack of evidence that Philips was a coconspirator or that the "Philips Matsushita cooperation agreements" had even the remotest bearing on the conspiracy alleged by plaintiffs. And Sears' role in the continuation of the financially distressed Warwick as a viable entity, by way of the Sanyo acquisition, was plainly in its self-interest given its heavy financial investment in Warwick, which was thereby protected.

  There is simply no evidence to support plaintiffs' claims that any of the acquisitions, or the establishment by any defendants of manufacturing facilities in the United States, were related to the "unitary" conspiracy.

  12. Evidence of the Participation of Individual Defendants in the Conspiracy

  We shall not attempt to summarize here our lengthy canvass of the evidence as to each defendant. Instead we note only that there is no evidence, discrete as to any of the 24 defendants, of their participation in the alleged conspiracy. Moreover, as to certain of the defendants there are reasons in addition to those noted earlier in this summary making it illogical to infer that at least certain of the defendants participated in the supposed predatory low price export conspiracy (e.g., Sony, because of its well-known position as the highest-priced seller in the U.S. market; and MC, MIC, Sears, and Motorola because of their normal desire, as purchasers of CEP's, to get the lowest possible price). There is also no evidence linking the sales subsidiaries of the various defendants to the conspiracy. *fn361"

  13. Admissibility of Coconspirator Declarations

  We have made pursuant to F.R.E. 104(a) a preliminary determination as to the admissibility of coconspirator statements under F.R.E. 801(d)(2)(E). That determination is in the nature of a factual finding that plaintiffs have not established by a preponderance of independent evidence that any of the defendants entered into an agreement or acted in concert with respect to exports to the United States in any manner which could in any way have injured the plaintiffs. Put differently, we have found that plaintiffs have not established, by the requisite degree of proof, that any of the defendants engaged in the export facet of the "unitary" conspiracy alleged by plaintiffs (or in the home market facet, either). Given this finding under the applicable Third Circuit standards, no coconspirator declarations may be admitted.

  14. Conclusion

  Notwithstanding their mountain of "evidence," plaintiffs have not yet stepped off home plate in their effort to establish the existence of the "unitary" conspiracy, much less come forward with the "significant probative evidence" of the conspiracy. First National Bank of Arizona v. Cities Service Co., supra. We have given plaintiffs the benefit of all inferences to which they are entitled and have analyzed the many facets of plaintiffs' conspiracy allegations, but have found each wanting. We have looked for direct evidence, and we have looked for circumstantial evidence from parallel business behavior and from all the potential sources, but we have found none. We have looked for evidence of when this conspiracy began and when the various parties entered it, but again we have found none. That is, we suppose, because there is no evidence of agreement or of concerted action.

  As we have engaged in this analysis we have not been unmindful of plaintiffs' warning, bottomed on Continental Ore Co. v. Union Carbide & Carbon Corp., supra, against "fragmentation" of their case. Continental Ore does not, of course, prevent us from analyzing the plaintiffs' conspiracy allegations, and it is clear that by merely intoning the magic words "unitary conspiracy" or "totality of the evidence" antitrust plaintiffs cannot foreclose critical analysis. Notwithstanding these principles, in addition to analyzing the discrete aspects of plaintiffs' case, we have looked at the totality of the evidence. We have avoided "tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each." Continental Ore, supra. In so doing we have searched for instances where one piece of evidence might inform other evidence. However, this approach has not helped the plaintiffs, for none of their evidence is probative, much less significantly probative.

  Nor can plaintiffs claim any synergistic result. The comments of the Ninth Circuit in California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 746 (9th Cir. 1979), are apposite here:

  

But there can be no synergistic result ... from a number of acts none of which show causal antitrust injury to CalComp.

  Nothing plus nothing times nothing still equals nothing. Summary judgment will be granted for the defendants on plaintiffs' Sherman Act § 1 and Wilson Tariff Claims concerning television receivers.

  VIII. Plaintiffs' Evidence With Respect to Non-Television Products

  This case has long been widely known as the "Japanese TV Case," and for good reason. Television receivers are the only products addressed in NUE's complaint, and they are the heart and soul of Zenith's complaint. However, Zenith has also put before us claims concerning a number of other CEP's: radios, tape equipment, phonographs, stereo and audio instruments, and certain components. We shall take up the evidence in the record with respect to each of these products seriatim. *fn362" We note preliminarily that Zenith's non-TV product claims do not proceed from any predicate that a predatory export invasion of the U.S. market was funded by a high price home market "war-chesting" conspiracy.

  A. Radios

  Both Zenith and NUE have alleged that defendants' "unitary" conspiracy began with the commencement of radio exports to the United States from Japan. According to plaintiffs, these exports represented the first "phase" of defendants' joint "stage-by-stage" strategy for taking over the United States CEP industry through "depressed pricing" or "artificially low prices." Notwithstanding the breadth of its claims, Zenith's "evidence" about radios stems from four sources: (1) two MITI-related export control arrangements, which affected the export of certain transistor radios; (2) the existence and alleged activities of certain "export" committees within the EIAJ and the JMEA; (3) the alleged radio-related activities of certain of the sub rosa Japanese domestic groups and associations which we have already described; and (4) inferences sought to be drawn from defendants' low prices on the U.S. market and their sharply increasing market share.

  The two export control arrangements which Zenith cites in support of its radio claims are: (1) those we shall refer to as the radio export regulations, which via various extensions were in effect from July 1, 1958 through December 31, 1972; and (2) those we shall refer to as the consumer electronics export regulations, which were in effect from June 8, 1973 to August 31, 1973. These regulations are of the same basic character as those referred to in Part VII.F.1, supra, and our discussion there is applicable here. At various times, the regulations imposed minimum prices, maximum quantity, and customer limitation restrictions on exports of certain kinds of radios to the United States. Additionally, they required radio exporters to register their trademarks and the names of their export customers, established penalties for violation of their restrictions, and created the Radio Export Examination Committee for certain administrative purposes. *fn363" The bulk of Zenith's FPS regarding radios is part rescription and part summarization and paraphrasing of the main provisions of the agreements, though there are scattered references to allegedly improper data dissemination.

  Aided by the affidavit of Hideo Miyake, Managing Director of Matsushita Electric Trading Company, Ltd. (MET), the Matsushita defendants and others submit that, as with the similar television agreements, the export regulations upon which Zenith relies were established at the express direction of MITI pursuant to the EIT law, were instruments of foreign trade policy of the Japanese government, and as such are not subject to scrutiny under United States law. Moreover, defendants allege, since the minimum price regulations could only have had the effect of keeping prices on radios exported to the United States higher than would otherwise prevail, they are fundamentally inconsistent with Zenith's claim of a "low" price export conspiracy, and could not have caused Zenith any injury. For reasons which have been explained supra, we shall not herein reach the act of state, sovereign compulsion, and international comity issues implicated by defendants' contentions about the role of MITI. And for reasons stated in Parts VI.B. and VII.F, we agree with defendants' contentions as to Zenith's inability to claim injury from the minimum price agreements or export quotas. *fn364"

  Aside from the text of the Manufacturers' Agreements themselves, the only other evidence which Zenith advances in its FPS concerning them are materials which indicate that the JMEA performed certain tasks with respect to the arrangements, such as administering certain aspects and preparing draft regulations under the aegis of MITI. *fn365" These facts do not change the result.

  As to the EIAJ, as is the case with television receivers, Zenith presents a list of the various EIAJ (radio) committees and argues that it "conveys a sense of the variety of matters which receive joint attention by the defendants" during their EIAJ committee meetings. Three of the committees appear to have had involvement with radios: the Radio Export Committee, the Radio Business Committee, and the Radio Technical Committee of the EIAJ's Kansai Chapter. *fn366" Again, however, Zenith attempts to have us draw conspiratorial inferences from the mere names of the committees, from the mere fact that they met, and from the suggestion that the participants "weren't just whistling Dixie" at these meetings (and that defendants have the burden of showing that they were not conspiring). Again, this approach must fail.

  It appears from the supporting documents that the principal subjects of discussion at the allegedly offending committee meetings were the check prices and export quotas for radios, along with matters of implementation of the Manufacturers' Agreements. As we have said, those matters do not result in antitrust injury to Zenith. Just as with their TV claims, plaintiffs make broad conclusory statements about conspiratorial activities, such as price fixing, which are not borne out by the documents. However, upon review of the actual documentation, which plaintiffs have not stressed, it appears that plaintiffs' case with respect to radios (and tape and stereo products as well) depends upon evidence of data dissemination which is similar in character to that adduced with respect to television receivers. The documents come from a variety of sources, but mostly from EIAJ committees and sub rosa groups. The principal difference between these and the TV documents is that there is far less "documentation" of the non-TV case. In evidentiary terms, however, the documents are qualitatively no different from those discussed in Parts VII.G.2(b) and (c). *fn367"

  Indeed, we could rescribe here much of what we wrote in section VII.G.2.(b) and (c), but that would be charitable to plaintiffs' radio claims, for the data dissemination evidence referenced in the FPS with respect to radios is far more random than that advanced in plaintiffs' TV case, and is afflicted with the same problems. Plaintiffs make no cohesive presentation, and the evidence would not support one, which justifies a conclusion that there is significant evidence of data dissemination such as would violate the Sherman Act.

  Some of the documents contain references to or statistics about radio exports, but those references are not limited to the United States, including instead exports throughout the world. Such references are not probative of plaintiffs' claims. In none of the charts and statistics disseminated through the EIAJ committees or the MD Group is there any evidence of exchange of identifiable price data. As with the TV documents, we have no idea from the radio documents who said what to whom or which company representatives were present and/or voted on any of the proposals, nor do we know whether any of the proposals were implemented, nor the extent of detail exchanged. There has been no deposition taken of anyone present at any such meeting. Plaintiffs attempt to interpret the documents to suit themselves, but they really do not tell us anything. We add that the plaintiffs' age-old argument that the groups and associations provided a "forum for discussion" of the levels of radio production for the Japanese market is unavailing in the absence of any evidence as to conspiratorial activity. See Part VI.A.4, supra.

  In their FPS, plaintiffs seek to draw an inference of a low price export conspiracy from: (1) the fact that the Japanese manufacturing defendants sold at such "low" prices in the U.S.; and (2) the high share of the U.S. market which they ultimately acquired. *fn368" These arguments track similar claims that plaintiffs have made with respect to television receivers, which we described in Parts VII.K and M, supra. We incorporate by reference what we said therein, and conclude that no inference of conspiracy can be drawn from evidence that defendants charged low prices in the U.S. (actually, plaintiffs have not really advanced a case of "international price discrimination" in radios) or from plaintiffs' evidence concerning the "depletion and destruction" of the U.S. radio industry.

  In sum, as was the case with television receivers, Zenith has adduced no evidence, direct or circumstantial, tending to show any agreement among the defendants to sell radios in the U.S. at unreasonably low prices; neither has it adduced evidence of parallel radio pricing. There is no evidence that radios exported by the Japanese defendants were sold in the U.S. below competitive price levels, or below defendants' costs.

  During the course of the final summary judgment argument, plaintiffs' lead counsel, Edwin P. Rome, conceded that plaintiffs had "much less" evidence with respect to non-TV products than for TV products. Without commenting here upon the strength of plaintiffs' TV claims, we observe that Mr. Rome made an understatement. He did not supply any details whatever with respect to the radio claims at the final summary judgment argument, and radio claims do not occupy more than a handful of pages in the 1,000 plus pages of plaintiffs' two final summary judgment briefs. In short, Zenith has offered no significant probative evidence, and there is no genuine issue of material fact, with respect to the radio claims. Accordingly, summary judgment must be granted for the defendants with respect to all claims regarding radio products.

  B. Tape and Stereo Products

  Zenith's claims with respect to tape and stereo products are even weaker and more amorphous than its radio claims, and the FPS contains even less data as to the tape and stereo products claims. Zenith has not even formulated a claim for damages to its tape and stereo business attributable to the alleged conspiracy. Zenith's evidence respecting its tape and stereo claims consists of: (1) the export control arrangements, which for the most part did not even have price provisions; (2) the names and dates of meetings of a few trade association committees; (3) the suggestion that a few of those committees may have discussed export-related subjects based, apparently, upon random reference to the exchange of information concerning tape and stereo products; and (4) the inference Zenith seeks to draw from the increase in sales of defendants' products in the U.S. and the decline of the U.S. industry.

  Zenith relies on two MITI-related export control arrangements. The first is the consumer electronics export regulation which also applied to radios, but which, as respects tape and stereo products, was in effect for only eight months in 1973, and which did not contain minimum price provisions (although it did contain export quotas). The second was the "Regulations Providing for the Terms to be Observed by Members of the Association with respect to the Export of Tape Recorders," in effect from May, 1965 through March, 1967. The principal provisions of these regulations were customer and trademark registration requirements similar to those contained in the radio export regulations. They did not contain price or quantitative restrictions or customer limitation provisions the provisions upon which Zenith places such heavy reliance with respect to television receivers.

  None of these regulations support Zenith's low price export conspiracy claims. As we have noted, they contain no price provisions. Controlling exports to the United States by requiring exporters to register their trademarks and the names of their U.S. customers (in the case of the tape recorder export regulations) and by export quotas (in the case of the consumer electronics export regulations) could not have injured Zenith, because the only possible effect of such controls would have been to limit exports to the United States. As a competitor, Zenith could not have been hurt thereby. See discussion at Parts VI.B. and VII.F, supra. *fn369"

  Zenith also offers a potpourri of other materials in support of its tape and stereo claims. It invokes defendants' interrogatory answers to acknowledge the existence of certain EIAJ committees which have names suggesting an interest in tape and/or stereo products. However, a review of the documents themselves referable to those committees reveals that they are not probative of a low price export conspiracy. As in the case of JMEA committees, the conferees primarily discussed the MITI-related export regulations. The documents also reflect discussion of matters such as export inspection, compliance with the quality control provisions of the tape recorder export regulations, discussion of export trends, etc., but, for reasons explained several times, supra, none of these matters are circumstantial evidence of the "unitary" conspiracy.

  The minutes of the EIAJ Stereo Advertising Committee, the Stereo Summit Committee of the EIAJ, and the Audio Technical Committee of the Kansai Chapter of the EIAJ contain no export references at all. The materials produced by defendants with respect to these committees reflect discussion of such matters as: the definition and use of words employed by various manufacturers or dealers in stereo advertisements; voluntary restraint on advertisements; discussion of the regular matrix system and standardization of the RM method of technology; a report of a study by the Four Channel Stereo Research Committee; changes in the degree of stereo signals; reports on safety, etc. Applying the legal standards discussed above, none of these matters give rise to the conspiratorial inference sought by plaintiffs.

  There are random references suggesting exchange of production, shipment, and inventory statistics and demand forecasts with respect to tape and stereo equipment in a number of MD Group and EIAJ documents, including those generated by the Kansai Chapter. Zenith's submissions in this regard come from documents not proffered as DSS's during the pretrial evidentiary hearings. All of them suffer from precisely the same flaws as the materials excluded in the Japanese Materials Evidentiary Opinion, and plaintiffs have done nothing to validate them. However, even if they were admissible, they would not help Zenith, because they contain no indication of discussions relating to exports to the United States or to pricing in any market. They contain no identifiable price detail and no individual company statistics about anything. What we said about data dissemination in our discussion of plaintiffs' radio claims applies here. *fn370" The documents are not suggestive in any wise of the existence of a conspiracy. The random allusions to "voting" do not even begin to approach, either quantitatively or qualitatively, what we found was inadequate in the case of TV receivers, and certainly do not approach the level of "significant probative evidence" of conspiracy.

  As was the case with radios, plaintiffs advance impressive statistics as to the increase in sales of Japanese tape and stereo products in the U.S. and the contemporaneous decline in U.S. industry. They also suggest that the defendants sold at low prices in the U.S. We have already explained that such evidence, even if properly presented, does not give rise to an inference of conspiracy. See Parts VII.M and VII.K, supra.

  Again with respect to tape and stereo products, plaintiffs have adduced no evidence of an agreement among the defendants to sell at unreasonably low prices in the U.S., no evidence of parallel pricing in the U.S., no evidence of pricing below competitive levels, and no evidence of pricing below cost. Zenith has not been serious in advancing its tape and stereo claims, at least not serious enough to produce any significant probative evidence to support them. Summary judgment must be granted with respect thereto.

  C. Components; The Alleged Matsushita-Philips Component Complex and International "Industrial Cooperation" System

  Zenith's claims with respect to components are even weaker, if that is possible, than its claims with respect to other non-TV products. Initially, consistent with its other claims, Zenith alleges an agreement among Japanese component manufacturers to export components to the United States at artificially depressed pricing levels. On the other hand and this appears to be the main thrust of its components theory Zenith asserts that two of the participants in the alleged low price conspiracy, MEI and N.V. Philips Gloeilampenfabrieken (Philips), had an arrangement pursuant to which defendant MEC, their joint venture engaged in component manufacturing, sold components to Zenith at discriminatorily high prices at least at 15% higher than the special discount at which they were sold to MEI. This is of course inconsistent with the tenor of plaintiffs' main case. Also invoking certain agreements and meetings between MEI and Philips to "cooperate" in various matters, plaintiffs submit that the MEI-Philips arrangements are part of the overall conspiracy. *fn371"

  The inconsistency of Zenith's theories is highlighted when we consider that, in connection with components, Zenith is not a seller but a purchaser. The only components that Zenith sold in any significant quantity during the period relevant to this litigation were monochrome and color picture tubes. Zenith no longer has any viable claims as a seller of components, i. e., as a competitor of defendants. Its dumping claims with respect to components, which were the only claims asserted as a competing seller, were dismissed some time ago for failure to provide dumping comparisons. *fn372" Moreover, Zenith makes no Robinson-Patman Act claims as a seller of components. *fn373" However, we nonetheless turn to an examination of the evidence affecting Zenith's components claims, starting with its conventional (depressed pricing) theory.

  Zenith originally claimed that nine categories of components were relevant to the case:

  

(1) Capacitors;

  

(2) Coils, deflection yokes, and transformers;

  

(3) Resistors, varistors, and thermistors;

  

(4) Speakers;

  

(5) Voltage triplers;

  

(6) Electron discharge devices, including cathode ray tubes, diodes, and receiving tubes;

  

(7) Semiconductor products, including diodes, transistors, and integrated circuits;

  

(8) Tuners for VHF and UHF television channels; and

  

(9) Tape decks. *fn374"

  Zenith does not mention a number of these components in the FPS at all (e.g., deflection yokes, varistors, thermistors, and voltage triplers), and it mentions others only in passing. *fn375"

  Aside from the MEI-Philips connection, Zenith's components claims are bottomed upon a number of committee names and meetings, a few documents, and sales figures showing an increase in the sale of Japanese manufactured components in the U.S. The principal evidence upon which the plaintiffs apparently rely is the MITI-related Electronic Tube Manufacturers' Agreement which was in effect from December 27, 1972 through August 31, 1973. But as in the case of other Manufacturers' Agreements, the export quotas imposed under this agreement could only have had the effect of reducing the impact of Japanese competition upon U.S. components manufacturers whose cause Zenith advocates here. Because Zenith can show no antitrust injury caused by these agreements, it has no standing to attack them.

  Zenith also relies upon the existence of a number of EIAJ committees having names suggesting an interest in components. In fact, the great majority of Zenith's FPS references to components are nothing more than the name of a trade association committee, with no further discussion. We have already seen the fallacy of that approach. The matters allegedly discussed during various committee meetings lend no support to plaintiffs' claims. According to the documents referenced in the FPS, assuming their admissibility, *fn376" the meeting agendas dealt heavily with technical matters, product liability and safety, and research. For reasons oft-discussed above, they do not support plaintiffs' conspiracy claims.

  The data dissemination references sprinkled over this vast record, with cryptic allusions to "voting," do not even begin to approach, either quantitatively or qualitatively, what we found was inadequate in the case of television receivers, and certainly do not approach the level of "significant probative evidence" of conspiracy. To the extent that Zenith alleges a low price export conspiracy with respect to components, it fails, for it has offered no significant evidence, direct or circumstantial, of agreement.

  We turn to the other facet of plaintiffs' components claims. Zenith devotes numerous pages of its FPS to a description of the MEI-Philips agreements. Because MEC offered a 15% discount to MEI, Zenith complains that MEC sold components to Zenith at discriminatorily high prices ! Zenith does not explain how this high price conspiracy can be a part of the low price conspiracy or how the two fit together. Neither does Zenith explain why it would allow itself to be charged discriminatorily high prices by MEC when it apparently had available to it alternative sources, i. e., components sold at the artificially low prices about which Zenith also complains. To the extent that Zenith complains that it was forced to buy its components at low Japanese prices because other U.S. component manufacturers were driven out of business, it can hardly complain. In any event, it has sustained no more injury than it has from the fixing of minimum price levels; hence it lacks standing.

  Plaintiffs partially ground their components376A claims on the alleged "Matsushita-Philips component complex" and international "industrial cooperation" system. Plaintiffs use these labels to describe a series of agreements between MEI and Philips which were designed primarily to effect wide-ranging technical exchange and patent licensing in the components field. Auxiliary to these understandings was a network of agreements providing for trading relationships between the two companies and for discounts on sale of certain products. There were certain provisions which plaintiffs describe as "customer allocation" provisions, pursuant to which MEI agreed not to compete with certain large Philips customers. Finally, there was an agreement to the effect that Philips and Matsushita management would discuss matters of general interest, including worldwide economic trends.

  Apparently, the MEI-Philips agreements are introduced to support plaintiffs' contentions that the conspiracy was of worldwide scope. However, as a review of the documents demonstrates, the industrial cooperation understandings were of a most general nature. We have referred to some of the documents offered by plaintiffs in support of their contentions in Part VII.N.5, supra. These documents do nothing more than evince the friendship between Philips and MEI and speak amorphously about maintaining a positive long-term relationship. *fn377"

  The short of it is that none of plaintiffs' evidence about the MEI-Philips relationship helps its case. The heart of that relationship was the MEC components joint venture, whose activities cannot help Zenith for the reasons explained above. There is no evidence that Philips was involved in the "unitary" conspiracy, or in any other conspiracy. *fn378" None of the MEI-Philips agreements tend to prove such complicity. Plaintiffs have offered no significant probative evidence supporting any of their components claims, and summary judgment must be granted as to those claims.

  IX. Plaintiffs' Sherman § 2 Claims Legal Principles and Application

  A. Introduction; The "Individual Monopolization" Claims

  In addition to their Sherman § 1 claims, plaintiffs have also charged defendants with violations of Section 2 of the Sherman Act, 15 U.S.C. § 2. *fn379" Plaintiffs allege that defendants have monopolized, attempted to monopolize, and combined or conspired to monopolize the manufacture, sale, and distribution of consumer electronic products, or parts thereof, in violation of Section 2. Defendants have all, at one time or another, moved for summary judgment with respect to plaintiffs' Sherman § 2 claims. We listed the Sherman § 2 motions for discrete consideration and heard argument on April 15, 1980. During the course of the argument it became obvious that there was confusion as to the nature of plaintiffs' Sherman § 2 claims. That confusion, the resolution of which fortunately resulted in sharpening of the issues, may be explained as follows.

  Defendants commenced their argument by positing that they were each being charged with "individual" monopolization and attempted monopolization, i.e., monopolization separate from plaintiffs' claims of monopolization by combination or conspiracy. They promptly pointed out that monopoly power (or at least a dangerous probability of acquiring such power) is an essential requisite of a Section 2 violation, and that, on the facts of record, as a matter of law, no one defendant alone even came close to having sufficient market share to have violated Section 2 either through monopolization or attempted monopolization. Plaintiffs responded that they were not asserting such "individual monopolization" claims. See PTO 238 at 129-31; that they had never made such claims; and that defendants had misread their complaints. *fn380" Instead, said plaintiffs, their theory of Sherman § 2 liability was bottomed on American Tobacco v. United States, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946), which they read as holding that if, in the aggregate, i. e., "by combination," the defendants monopolized or attempted to monopolize, each defendant would be individually liable for monopolization or attempted monopolization.

  We need not decide whether plaintiffs ever asserted individual claims of monopolization and then withdrew them, as defendants contend, or whether such claims were never asserted at all, as plaintiffs maintain. It is sufficient to say that the parties reached the understanding at the hearing that these claims were not a part of plaintiffs' case. We will consider, therefore, whether under the American Tobacco "aggregate" theory, and under the evidence, there is a genuine issue of material fact as to plaintiffs' monopolization claims. We will also consider, in like fashion, plaintiffs' claims of attempted monopolization and conspiracy to monopolize.

  B. Monopolization by Combination; Attempted Monopolization by Combination; Conspiracy to Monopolize

  Plaintiffs' theory that each individual defendant can be charged with monopolization by combination under § 2 of the Sherman Act (as opposed to conspiracy to monopolize) would appear to be justified by the language of the Act and by the Supreme Court's decision in American Tobacco, supra. Although the question before the Supreme Court in American Tobacco was whether "actual exclusion of competitors is necessary to the crime of monopolization ... under § 2 of the Sherman Act," 328 U.S. at 809, 66 S. Ct. at 1139, the Court's opinion supports plaintiffs' contention that when a group of firms by combination acquires or maintains the power to exclude competitors and has the intent and purpose to exercise that power, each member of the group is guilty of (or liable for) monopolization. There is no small amount of semantic confusion in the area, and it is important to distinguish such a cause of action (which we style as monopolization by combination) from claims of "conspiracy to monopolize" and "shared" or "joint" monopoly.

  Conspiracy to monopolize is a separate offense under § 2. As defined by Professor Sullivan, a conspiracy to monopolize requires "proof of a concerted action deliberately entered into with the specific intent to accomplish the unlawful result of achieving a monopoly"; and (2) proof of "at least one overt act in furtherance of the conspiracy." Proof of such a conspiracy does not require successful accumulation of monopoly power. In other words, conspiracy to monopolize essentially applies the law of criminal conspiracy to the monopolization context. See L. Sullivan, supra, at 132-33.

  "Shared" monopoly, on the other hand, describes an oligopolistic market in which a relatively small number of firms collectively holds significant market power (though no single firm possesses sufficient market power to exclude competitors), but where there is no evidence of collusive behavior. The Sherman Act does not forbid such a market condition, absent evidence that the firms "combined or conspired" to achieve their monopoly power. See generally P. Areeda and D. Turner III Antitrust Law P 840 et seq.

  In contrast, plaintiffs' American Tobacco theory of monopolization by combination, which we have accorded vitality, posits, as we have said, that when the defendants in the aggregate have monopolized the relevant market, each individual defendant may be held liable for monopolization even though its individual market share would not otherwise support such a claim. Given the discrete character of a conspiracy, a count of conspiracy to monopolize may be pursued in addition to a monopolization count. *fn381" However, even though under American Tobacco a group of defendants may be held liable for monopolization when, acting in concert, they have monopolized the relevant market, that case made it plain that there must be evidence of concerted action to support such a monopolization by combination claim. *fn382" Thus, while in theory monopolization by a group of firms and conspiracy to monopolize may be separate violations of the Act, in practice they must be supported by similar evidence. Moreover there is no indication either in the Act or in the case law that there is any difference between the type of evidence which will support an inference of an agreement to monopolize and that which will support an inference of collusion under § 1. *fn383"

  In Edward J. Sweeney & Sons v. Texaco, Inc., 637 F.2d 105 (3rd Cir. 1980), the defendant Texaco, Inc. was charged with violations of both § 1 (conspiracy in restraint of trade) and § 2 (conspiracy to monopolize). On appeal, the appellants' § 1 claims failed because sufficient proof of concerted action was not offered. The appellants' § 2 claims alleging conspiracy to monopolize failed because of the failure to establish the conspiracy under § 1. Id. at 118. Similarly, Von Kalinowski notes that there is no indication that the words "combine" and "conspire" as used in Section 2 of the Sherman Act are distinguishable from a "combination" or "conspiracy" under Section 1 of the Act. Von Kalinowski, 16A Business Organizations, Antitrust Laws & Trade Reg. § 9.02 (1979). See also the comments of Professors Areeda and Turner, quoted in note 381, supra.

  The combination which in plaintiffs' submission supports their American Tobacco theory of monopolization is the same conspiracy the "unitary" conspiracy which they claim violated § 1 of the Sherman Act. Nowhere in this most voluminous of records or in the torrent of words which has poured forth in seemingly endless colloquy over the past three years has any other theory been suggested. As we have already discussed at length above, the evidence which plaintiffs have offered to prove a Section 1 violation is insufficient to raise a genuine issue of fact as to the existence of any agreement more particularly, of a low-price export conspiracy. Therefore, taking all plaintiffs' evidence, direct or circumstantial, there is insufficient evidence to create a factual issue as to the existence of a combination or conspiracy necessary to support a violation of § 2 under American Tobacco. For this reason, summary judgment must be granted for the defendants on plaintiffs' § 2 claim for monopolization.

  Having disposed of plaintiffs' claim of actual monopolization, disposition of the claim of attempted monopolization follows as of course. Under American Tobacco, an attempt to monopolize by combination requires the same type of concerted action and unity of purpose as required in a claim of actual monopolization. As we have held, the plaintiffs have not offered sufficient proof of such concerted action to withstand the defendants' motions for summary judgment. Similarly, plaintiffs' claim of a conspiracy to monopolize must also fail for lack of proof of the conspiratorial element which it failed to prove under Section 1. See Sweeney, supra.

  C. The Question of Defendants' Aggregate U.S. Market Share of Television Receivers

  Defendants have argued with great force that their aggregate U.S. market share of television receivers is as a matter of law not large enough to justify continuance of the plaintiffs' Sherman Act § 2 claims beyond the summary judgment stage. Although we have held that plaintiffs' Sherman Act § 2 monopolization claims cannot survive summary judgment because of the total lack of evidence of agreement, and choose to rest our grant of summary judgment on plaintiffs' Sherman § 2 claims on that ground alone, we elect to extend the opinion by summarizing and commenting upon the factual record relative to the defendants' market share and the law relative to monopoly power. We do so because, in view of the potential importance of the point and the likelihood of appeal, it will be helpful for the Court of Appeals to have an overview of the record (and an identification of the problems) in this area in the event it should wish to reach this question which we do not.

  Under the case law, market share is the prime indicator of monopoly power, although market share alone may not be dispositive. It is not clear, however, what degree of market power, either individual or aggregate, is necessary to indicate monopoly power. In American Tobacco an aggregate 68% of the domestic cigarette market was a sufficient share to show such power. 328 U.S. at 796, 66 S. Ct. at 1133. The Fifth Circuit has noted that "something more than 50% of the market is a prerequisite to a finding of monopoly power," Cliff Food Stores v. Kroger, Inc., 417 F.2d 203, 207 n.2 (5th Cir. 1969). In United States v. Aluminum Co. of America, 148 F.2d 416, 424 (2d Cir. 1945), the Second Circuit held that 90% of the market was a monopoly, but commented that "it is doubtful whether sixty or sixty-four per cent would be enough." The Eighth Circuit has pointed out that, of "nine cases condemning monopolies under § 2 of the Act, the percentage of market share ranges from 70 per cent in United States v. Paramount Pictures, Inc., 334 U.S. 131, 167 68 S. Ct. 915, 934, 92 L. Ed. 1260 (1948), to 100 per cent in United States v. Pullman Co., (330 U.S. 806, 67 S. Ct. 1078, 91 L. Ed. 1263 (1947))", Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 974 (8th Cir. 1968), cert. denied, 395 U.S. 961, 89 S. Ct. 2096, 23 L. Ed. 2d 748 (1969). See also Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911) (90%); United States v. Grinnell Corp., 384 U.S. 563, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966) (87%).

  In order to establish the existence of market power, plaintiffs must first prove that a particular product constitutes a relevant market or submarket by showing that it is "not considered reasonably interchangeable with other ... (products) ... by a significantly large number of consumers." Edward J. Sweeney & Sons, supra, 637 F.2d at 117. *fn384" In their supplemental FPS at 11247-51, plaintiffs have set out five separate product markets: (1) television receivers, (2) components, (3) phonographs, stereo, and audio instruments, (4) tape equipment, and (5) radios. *fn385" There is, however, no indication in the preclusive FPS of the means by which plaintiffs intend to prove that these are relevant product markets, nor have plaintiffs indicated an intention to prove any submarkets. *fn386"

  In terms of percentages of total unit sales of monochrome television receivers to U.S. dealers, defendants shipped 19.8% in 1967, 24.2% in 1968, 31.8% in 1969, and 36.2% in 1970. Trendex figures *fn387" show that defendants' market share in monochrome receivers was:

  TABLE

  Defendants' market share for color television receivers was:

  TABLE

  According to the Trendex figures then, the defendants' aggregate market share for television receivers never exceeded 50%, and for most years in question was far less. *fn388" It is thus doubtful that the plaintiffs' evidence of defendants' U.S. market share of television receivers and of certain other CEP's in certain markets (see n. 388, supra ), even if aggregated according to plaintiffs' theory of monopolization by combination, is sufficient to meet the legal standards for proof of monopolization under § 2 of the Sherman Act, at least for most years in question. Were we to extend our analysis by sorting out the facts of record in this area, it is clear that we would have to grant summary judgment as to many of the plaintiffs' American Tobacco monopolization claims on the ground that the defendants do not have sufficient market share to make out such a case or on the ground that whatever the ultimate facts, plaintiffs have not adduced sufficient specific evidence to create a genuine issue of material fact. However, because it would take quite some time to cover all of this territory, and because, by virtue of the conclusion reached in the previous section, it is not necessary, we shall not do so. We hope that we have sufficiently charted the terrain for the reviewing court, should it wish to venture therein.

  X. Zenith's Robinson-Patman Case Legal Principles and Application

  A. Introduction

  Zenith has asserted claims against certain of the defendants for price discrimination among U.S. purchasers of defendants' products allegedly in violation of the Robinson-Patman Act. *fn389" Although the Robinson-Patman Act, unlike Section 1 of the Sherman Act, does not contain its own conspiracy provision, and plaintiffs do not allege a conspiracy to violate the Robinson-Patman Act as a separate antitrust offense, Zenith also argues that all other defendants are vicariously liable for the violations under Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), because of their participation in the alleged conspiracy. For the reasons set forth in Part VI.D.5, supra, as informed by the discussion herein, we need not, hence do not, reach the Pinkerton issue. *fn390" We address in this section defendants' motions for summary judgment on Zenith's Robinson-Patman claims.

   The Robinson-Patman Act outlaws certain discriminations in price between purchasers of commodities sold for use or resale in the United States. *fn391" The Supreme Court has warned against overbroad interpretations of the Robinson-Patman Act which "extend beyond the prohibitions of the Act and, in so doing, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation." Great Atlantic & Pacific Tea Co. v. FTC, 440 U.S. 69, 80, 99 S. Ct. 925, 933, 59 L. Ed. 2d 153 (1979), quoting Automatic Canteen Co. v. FTC, 346 U.S. 61, 63, 73 S. Ct. 1017, 1019, 97 L. Ed. 1454 (1953).

  In order to make out a claim under the Act, a plaintiff must show that a defendant has made two contemporaneous sales of commodities of like grade and quality to two different customers at different prices, and must also show that the effect of the price discrimination "may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition." 15 U.S.C. § 13(a). *fn392" Although the standard is thus one of "incipiency," see infra, an effect on competition which is insubstantial or de minimis does not satisfy the statutory requirement. See, e.g., American Oil Co. v. FTC, 325 F.2d 101 (7th Cir. 1963), cert. denied, 377 U.S. 954, 84 S. Ct. 1631, 12 L. Ed. 2d 498 (1964); Willow Run Garden Shop, Inc. v. Mr. Christmas, Inc., 1973-2 Trade Cases P 74,86 (D.N.J.1973), rev'd on other grounds, (3d Cir. Aug. 5, 1974) (disposition noted at 500 F.2d 1401). See generally F. Rowe, Price Discrimination Under the Robinson-Patman Act (1962); L. Sullivan, Handbook of Law of Antitrust § 218 (1978). *fn393"

  The parties sharply dispute whether these statutory requirements are satisfied by Zenith's proffers. *fn394" However, we need not reach most of the points raised by the parties because of the consequences which flow from Zenith's overall approach to its Robinson-Patman Act claim. As will be seen infra, Zenith's formulation of its Robinson-Patman claim is inextricably bound up with its conspiracy allegations. Since Zenith's standing to assert a claim under the Robinson-Patman Act and its proof of substantial injury to competition are entirely dependent upon its allegation that the defendants engaged in a low-price export conspiracy, its failure to support these allegations by evidence sufficient to create a genuine issue of material fact means that its Robinson-Patman claims must also fail. *fn395"

  B. Zenith's Standing to Assert Claims Under the Robinson-Patman Act

  The principles of antitrust standing under § 4 and § 16 of the Clayton Act, 15 U.S.C. § 15 and § 26, which we discussed in Part VI.B, supra, govern claims under the Robinson-Patman Act as well as under other antitrust statutes. See Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S. Ct. 1871, 1874, 23 L. Ed. 2d 599 (1969); Chrysler Credit Corp. v. J. Truett Payne, Inc., 607 F.2d 1133 (5th Cir. 1979), cert. granted, 449 U.S. 819, 101 S. Ct. 70, 66 L. Ed. 2d 20 (1980); Freedman v. Philadelphia Terminals Auction Co., 301 F.2d 830, 833 (3d Cir.), cert. denied, 371 U.S. 829, 83 S. Ct. 40, 9 L. Ed. 2d 67 (1962). Zenith has steadfastly refused to attempt to show that it suffered injury specifically because of the price discriminations alleged against the defendants or to assess what the dollar amount of damages attributable to the price discrimination might be. During argument addressed to defendants' motions for summary judgment on the Robinson-Patman claims, Zenith's counsel stated:

  

We have submitted damage calculations in great, great detail. I do not think it is our responsibility, your Honor, nor are we obliged to try to segregate out the damage and say this represents damage flowing from one kind of overt act and another kind from a different kind of overt act. That would again be the atomization, the fragmentation which is not permitted.

  PTO 252 at 109 (May 26, 1980). And in its answer to Interrogatory No. 27 of the Matsushita Defendants (filed May 25, 1979), Zenith responded that it was "impossible to attribute any specific portion of damages ... to MEI's "primary line' price discrimination alone."

  The damages section of the FPS makes no attempt to attribute any loss to Zenith by reason of alleged Robinson-Patman Act violations, whether because of declining sales or for any other reason. Furthermore, the sections of the FPS charting the various price discriminations alleged make no attempt to show that Zenith was competing with any of the defendants for sales to any of the customers who were paying the lower price for comparable merchandise at any given time. Thus, Zenith has failed to provide any nexus between the alleged price discrepancies in the FPS and any injuries Zenith may have suffered. Indeed, the only example cited in plaintiffs' Robinson-Patman brief of sales lost by Zenith to a defendant is of sales to a customer who paid the defendant the higher of the disparate prices. See PTO 252 at 55-57. In its Supplemental Memorandum in Opposition to Certain Defendants' Motions for Summary Judgment relating to Robinson-Patman Claims, filed after argument of the Robinson-Patman Motions, Zenith's only mention of injury to itself is as follows:

  

Injury to Zenith in its business and property under Section 4 of the Clayton Act, 15 U.S.C. § 16 (sic) (1973), in this case is clear. Defendants' combination and conspiracy and price discrimination in furtherance thereof directly affected and injured other competitors. Many competitors, such as NUE, were driven out of business.

  Id. at 39 n.12.

  Because Zenith has insisted throughout this litigation on attributing all of its injury to the unitary conspiracy and the overt acts in furtherance thereof, it has never attempted to sketch even the barest outline of a theory of how its injury was caused by the alleged Robinson-Patman violations. Instead, it has rested on the claim that since it alleges a "unitary conspiracy," within which each Robinson-Patman violation is an "overt act," it is not obliged to show that it was injured specifically by those alleged violations. Zenith has, in colloquial terms, "put all its eggs in one basket" the "unitary" conspiracy basket.

  While Zenith's approach might (or might not) have supported its standing to sue for alleged Robinson-Patman violations if it in fact had proof of a low-price export conspiracy, its approach is plainly insufficient in the absence of such a conspiracy. In the instant opinion, we award summary judgment to the defendants on the ground that the plaintiffs have not come forward with sufficient probative evidence of such a conspiracy to create a genuine issue of material fact. Because Zenith has utterly failed to make even the most minimal showing of injury from the Robinson-Patman violations, apart from its conspiracy allegations, it has no standing under § 4 or § 16 of the Clayton Act to maintain an action to recover treble damages for those alleged violations, in the absence of a genuine issue of material fact as to the existence of a low-price export conspiracy. *fn396"

  C. Zenith's Failure to Show Substantial Incipient Injury to Competition

  In addition to its failure to make an adequate showing to support its standing to seek relief for the alleged Robinson-Patman violations, Zenith has failed to adduce evidence sufficient to create a genuine issue of material fact as to a crucial requirement of the Robinson-Patman Act: proof of substantial incipient injury to competition. The statute prohibits only those price discriminations the effect of which "may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition." 15 U.S.C. § 13(a). It does not require proof of actual injury to competition, but only of an incipient injury to competition. E. g., FTC v. Morton Salt Co., 334 U.S. 37, 68 S. Ct. 822, 92 L. Ed. 1196 (1948). However, a Robinson-Patman plaintiff must adduce some causal nexus between the alleged price discrimination and injury to competition, whether actual or incipient.

  

If the discrimination complained of does not, cannot and will not have the defined effect of injury to or substantial lessening of competition, or tendency to create a monopoly, the Act has not been violated.... This is implicit in the very language employed by the Act. Any other construction would turn the Act into a price control law contrary to its manifest purpose.

  Whitaker Cable Corp. v. FTC, 239 F.2d 253, 256 (7th Cir. 1956), cert. denied, 353 U.S. 938, 77 S. Ct. 813, 1 L. Ed. 2d 761 (1957). See generally Rowe, supra, at 132-39. Indeed, to read the requirement of injury to competition out of the Robinson-Patman Act, or to construe the requirement too broadly, would be unfaithful both to the very language of the Act and to the Supreme Court's warning in Great A & P, supra, against interpretations of the Robinson-Patman Act which contribute to "price uniformity and rigidity in open conflict with the purposes of other antitrust legislation." 440 U.S. at 80, 99 S. Ct. at 933, quoting Automatic Canteen Co. v. FTC, 346 U.S. 61, 63, 73 S. Ct. 1017, 1019, 97 L. Ed. 1454 (1953).

  Zenith has never articulated with any degree of clarity its theory of how the alleged price discriminations caused any actual or incipient injury to competition. To the extent that any such theory can be gleaned from Zenith's briefs and oral argument opposing the defendants' motions for summary judgment on Zenith's Robinson-Patman Act claims, that theory is wholly dependent on the existence of sufficient evidence of a low-price export conspiracy. At argument on the Robinson-Patman motions, for example, Zenith's counsel, Mr. Rome, waxed eloquent on the alleged injury to U.S. consumer electronics manufacturers from the alleged "unitary" conspiracy:

  

Moreover, undisputed on the record of the case before you, Your Honor, is that a number of U.S. manufacturers in the consumer electronic field have gone out of business, have been destroyed. NUE itself is an example before the Court, and I contend, Your Honor, that from that fact flows necessarily the conclusion that the actions of the defendants have tended to create a monopoly....

  

... We are saying that the departure, the forced compelled departure of a number of U.S. manufacturers from the field demonstrates a tendency on the part of the defendants' conduct to produce a monopoly.

  

Now, additionally, Your Honor, we are talking about a situation in which, I repeat, there is a unitary conspiracy alleged by Zenith, one manifestation of which is price discrimination.

  PTO 252 at 91-92 (May 26, 1980). *fn397" Thus Zenith's theory of the injury to competition caused by the alleged price discrimination is based entirely on its allegation that such price discrimination was part of a conspiracy and that the conspiracy tended to create a monopoly. Zenith has pointed to no anticompetitive consequences of the price differentials themselves, apart from their alleged role in the alleged unitary conspiracy.

  Zenith has attempted to remedy this deficiency in its Robinson-Patman claims by quoting the following language from Perkins v. Standard Oil Co., supra, 395 U.S. at 648, 89 S. Ct. at 1874: "If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what that evidence proves is for the jury." However, Zenith has neglected to identify the evidence in this record that would "support an inference of causation" with respect to its Robinson-Patman Act claims. Neither in its briefs, at oral argument, nor in the FPS has Zenith cited any evidence that would show how or why the alleged price discriminations themselves, apart from any conspiracy, constituted any threat to competition. In the absence of sufficient evidence of the alleged conspiracy to survive the instant summary judgment motions, Zenith has no viable theory of how the alleged price differentials caused any injury to competition.

  D. Conclusion

  To summarize, Zenith's Robinson-Patman Act claims are inextricably intertwined with its conspiracy claims. In the absence of sufficient evidence of the alleged "unitary" conspiracy, Zenith has shown no injury, hence no standing to assert a claim under the Robinson-Patman Act, either for treble damages under § 4 of the Clayton Act or for injunctive relief under § 16 of the Clayton Act. Furthermore, in the absence of such evidence, Zenith has not even the whisper of a theory of injury to competition caused by the alleged price differentials. Finally, as against most of the defendants, Zenith's Robinson-Patman Act claims are premised on a theory of vicarious coconspirator liability which Zenith has failed to support with sufficient evidence of conspiracy. Thus, even if one assumes that Zenith's Robinson-Patman Act claims are otherwise adequately supported to survive the summary judgment motions a matter of some doubt but which is not decided in this opinion Zenith has no standing to assert them, has made no showing of injury to competition, and has not provided factual support for its theory of vicarious liability. Accordingly those claims must be dismissed.

  XI. Zenith's Clayton § 7 Case Legal Principles and Application

  Zenith has also asserted claims against certain of the defendants on the basis of alleged violations of § 7 of the Clayton Act, 15 U.S.C. § 18. *fn398" These claims are based on the acquisition by MEI of Motorola's television business, along with its "Quasar" trademark, in 1974, and on the acquisition in 1976 by Sanyo Manufacturing Corp. of Warwick Electronics, Inc., a major supplier of private-label television receivers to Sears, Roebuck & Co. *fn399" As in the case of the Robinson-Patman Act claims discussed in the preceding section, Zenith alleges direct violations against some of the defendants, while contending in addition that the alleged violations of Clayton § 7 are overt acts in furtherance of the "unitary" conspiracy, and that all defendants are accordingly vicariously liable under the Pinkerton doctrine discussed at Part VI.D.5, supra. *fn400" We address in this section defendants' motions for summary judgment on Zenith's Clayton Act § 7 claims, and reach a conclusion almost identical to that reached with regard to the Robinson-Patman Act claims: because Zenith's Clayton § 7 claims are inextricably bound up with their allegations of a "unitary" conspiracy, and because their standing to assert a Clayton § 7 case is dependent upon proof of that conspiracy, the Clayton § 7 claims must fail as a direct result of plaintiffs' inability to support their conspiracy allegations.

  Section 7 of the Clayton Act prohibits acquisitions, the effect of which "may be substantially to lessen competition, or to tend to create a monopoly" in any line of commerce and in any section of the country. *fn401" As explained by the Supreme Court in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962), the Congress that enacted § 7 was primarily concerned with "a fear of what was considered to be a rising tide of economic concentration in the American economy." Id. at 315, 82 S. Ct. at 1518. Accordingly, to stem that rising tide Congress provided "authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency." Id. at 317, 82 S. Ct. at 1519-1520. Congress rejected the application of standards developed under the Sherman Act in cases arising under the Clayton Act, but did not set forth any specific standards for defining the relevant market or the substantiality of the effect on competition. It did, however, make clear that a merger must be "functionally viewed, in the context of a particular industry," id. at 321-22, 82 S. Ct. at 1521-1523. Moreover, Congress' concern is with competition, not individual competitors, id. at 320, 82 S. Ct. at 1521, and with probabilities, not certainties. Id. at 323, 82 S. Ct. at 1522-1523.

  To make out a § 7 case, a plaintiff must establish the relevant product and geographic markets, neither of which is at issue in this case, and must demonstrate the requisite tendency substantially to lessen competition or create a monopoly. See United States v. General Dynamics Corp., 415 U.S. 486, 94 S. Ct. 1186, 39 L. Ed. 2d 530 (1974); United States v. Von's Grocery Co., 384 U.S. 270, 86 S. Ct. 1478, 16 L. Ed. 2d 555 (1966); United States v. Philadelphia National Bank, 374 U.S. 321, 83 S. Ct. 1715, 10 L. Ed. 2d 915 (1963); Brown Shoe, supra. As an affirmative defense, a defendant may assert that the acquired company was a failing company, and was therefore not a competitive force. See United States v. Greater Buffalo Press, Inc., 402 U.S. 549, 91 S. Ct. 1692, 29 L. Ed. 2d 170 (1971); Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S. Ct. 927, 22 L. Ed. 2d 148 (1969); International Shoe Co. v. FTC, 280 U.S. 291, 50 S. Ct. 89, 74 L. Ed. 431 (1930). *fn402"

  We suspect that defendants may well be correct (1) that Zenith has not raised a genuine issue of material fact as to the substantial lessening of competition and (2) that Warwick was indubitably a failing company. See Part VII.N.3, supra. However, we shall not perform the substantive Clayton § 7 analysis because: (1) amidst the welter of evidence and contentions, the parties have not sufficiently sharpened these issues; (2) there is much confusion about the meaning of the "no alternative purchaser" requirement and its applicability to this case; *fn403" (3) the required functional market analysis is so complex (and the parties so sharply differ in their interpretations of the relevant law); and (4) we have an alternative ground for dismissal of Zenith's Clayton § 7 claims. We turn then to the alternative ground, the issue of standing.

  The principles of standing under § 4 and § 16 of the Clayton Act, which we have enunciated in Part VI.B, supra, are fully applicable to actions seeking redress for violations of § 7 of the Clayton Act. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977). Notwithstanding the clear import of these principles, in argument on the defendants' motions for summary judgment on Zenith's § 7 claims, Zenith's counsel took the same position on proof of injury as he did with respect to the Robinson-Patman claims:

  

Sir, on the point of damage, just as we contend there may not under Continental Ore be a fragmentation of the conspiracy concept, there may not be a fragmentation of the damage concept. This is again a not unusual point advanced by defendants trying to break down into atomized constituent parts what is necessarily to be viewed as one.

  

And under those circumstances, despite the comments of my friends, we have not undertaken to do that, nor have we in our submission, Your Honor, with great respect, an obligation to try to allocate particular damages to particular counts of the Complaint. The ultimate point that we make is that all of these facts represent one ball of wax which constituted violations of different statutes, and it would be to fall into the trap that my friends seek constantly to lay if we were obligated to do the contrary, sir.

  PTO 255 at 142-43 (June 2, 1980).

  Similarly, in its answer to defendants' interrogatories addressed to Count III, *fn404" Set No. 1, Interrogatory No. 1(e), which requested the dollar amount of damages flowing from the acquisitions, Zenith responded:

  

The acquisition described in Count III was arranged and consummated pursuant to the combination and conspiracy to restrain and to monopolize domestic and foreign commerce in consumer electronic products in the manner alleged in the Complaint. Defendants' interrogatories disregard the Complaint allegations in an improper effort to separate the acquisition from the combination and conspiracy and to require plaintiff to assign a special damage amount to the acquisition without regard to defendants' other conspiratorial activities.

  Moreover, in that section of its brief addressed to the effect on competition of the contested acquisitions, Zenith warns of the effect of all Japanese defendants lumped together, stating:

  

Zenith contends that the market must be viewed in light of the allegations of the Complaint. Moreover, in the absence of any factual record submitted by the defendants, the Court must view the defendants and their coconspirators as they are, i. e. as a single entity in the U. S. market. This being so, even the acquisition by the cartel and its partners in crime of a more modest share of the market would be illegal.

  Zenith's Brief in Opposition to Defendants' Motions for Summary Judgment Relating to the Clayton § 7 Claims at 79.

  Thus, as with the Robinson-Patman Act Claims, Zenith has steadfastly refused to formulate any theory that would show its injury traceable to the alleged violations of § 7 of the Clayton Act. Instead, Zenith has again put all of its eggs into the "unitary" conspiracy basket. Absent proof of the alleged "unitary" conspiracy Zenith has made no showing of injury stemming from the contested acquisitions sufficient to give it standing under either § 4 or § 16 of the Clayton Act in order to separately press its Clayton § 7 claims. Because we have held that plaintiffs have not adduced sufficient evidence of conspiracy to give rise to a material issue of fact on that issue, summary judgment must be granted as to the § 7 claims as well. *fn405"

  XII. Conclusion

  Can this opinion, running close to -- pages, be succinctly characterized? If it can, it is by rescribing what we said at the outset: despite the fact that plaintiffs have pled a conspiracy case, they have produced no significant probative evidence that any of the defendants entered into an agreement or acted in concert with respect to exports to the United States that in any manner could have injured the plaintiffs. *fn406" The plaintiffs have filed Preliminary Pretrial Memoranda of some 410 pages, a Final Pretrial Statement of some 17,000 pages keyed to some quarter of a million documents, and thousands of pages of briefs in opposition to the defendants' summary judgment motions. Extracting from the millions of documents copied and inspected in nine years of discovery whatever could be construed as suspicious, the plaintiffs have (figuratively) buried us in an avalanche of paper. However, to repeat, they still have not shown any significant probative evidence of an agreement.

  For that reason, and for the hundreds of others spread out in this opinion, summary judgment will be granted for defendants as to all of plaintiffs' conspiracy claims (Sherman Act § 1, Sherman Act § 2, Wilson Tariff Act), and as to all claims predicated upon vicarious liability of coconspirators. Because there is also no basis to sustain plaintiffs' Clayton Act § 7 and Robinson Patman Act claims, *fn407" summary judgment will be granted for defendants on those claims as well. *fn408"

   What plaintiffs have brought, it turns out after a decade, is not a real but an "ersatz" antitrust case. What plaintiffs have waged is not just litigation, but also what Judge Patrick Higginbotham has referred to as "economic war." *fn409" The defendants have fought back in kind, and one facet of the marketplace battle over the sale of television receivers has been fought in the legal arena under the aegis of this court.

  In plaintiffs' submission, they are entitled to damages in the billions of dollars. In defendants' view, what the principal plaintiff (Zenith) seeks is a "price umbrella" to insulate it from foreign competition and to protect its already high U.S. market share. We understand Zenith's concern about the inroads by the defendants and other Japanese CEP manufacturers in the U.S. market, and its striving to maximize its profits and preserve its workers' jobs. But its proper remedy in this regard is not in the antitrust court, but in the Congress, in the U.S. International Trade Commission, and in the office of the President's Trade Negotiator. Unlike the courts, these agencies are in position to balance the needs of Zenith and the other U.S. manufacturers of CEP's (and of the American labor force) with the beneficial effects of competition and free trade in CEP's upon the U.S. consumer and the U.S. economy, and to grant appropriate and meaningful relief.

  We make no normative judgments on these points. Rather, we hold that, notwithstanding plaintiffs' unlimited opportunity during the final summary judgment argument (and in their voluminous briefs) to extract evidence from the towering document pile that might create a genuine issue of material fact, they have come forward with no significant probative evidence that defendants' penetration of the U.S. television receiver market is the result of an antitrust conspiracy. *fn410" Accordingly, summary judgment must be granted so as to put an end to this ten-year-old case which, notwithstanding all its sound and fury and the generation of tens of millions of documents and staggering legal fees, has produced nothing, we repeat, nothing which justifies our permitting it to go forward into a trial which will last a year or more, with countless untold further burdens and expense upon the parties, their counsel, and the court system.

  Since plaintiffs' 1916 Antidumping Act claims have already been dismissed, 494 F. Supp. 1190 (E.D.Pa.1980), appeal pending, No. 80-2080 (3d Cir.), *fn411" the Order accompanying this opinion will result in the dismissal of all of plaintiffs' claims in this litigation. All that will remain of this case (subject, of course, to review by the Court of Appeals) are the counterclaims interposed by a number of defendants, the trial of which we plan to defer, pursuant to our contemporaneous Certification under Rule 54(b), until the Court of Appeals has had an opportunity to review the grant of summary judgment.


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