The opinion of the court was delivered by: BECKER
[EDITOR'S NOTE: Part 2 of 3]
G. Activities of Certain Groups and Associations in Japan
1. Introduction; General Background
Plaintiffs' case as it relates to activities in Japan has its primary roots in the membership of the Japanese manufacturing defendants in a large number of conventional trade associations (and in sub-committees thereof) and in a number of additional trade groups operating sub rosa. Plaintiffs have identified these groups in the 500-page Appendix A to their FPS, entitled "Plaintiffs' Compilation of Japanese Trade Associations and Other Groups." In this appendix, plaintiffs also identify the individuals who attended the meetings of the various groups, the company employing that individual, and the source of information as to membership. Appendix B, consisting of four volumes entitled "Calendar of Conspiratorial Meetings," sets forth the dates of these meetings.
As the title of the Appendix suggests, it is a fair statement that, in plaintiffs' submission, no meeting ever occurred among the executives of the defendants which was not "conspiratorial."
We will address four basic groups or congeries of groups. The most important to plaintiffs' case is a host of informal sub rosa groups (the Okura, Palace, and Tenth Day Groups, et alia), whose existence was revealed by the JFTC investigation in the "Six Company Case" and whose membership was composed of executives of the Japanese manufacturing defendants. The purpose of these groups, in plaintiffs' submission, was darkly conspiratorial. The second and largest category consists of the Electronic Industries' Association of Japan (EIAJ), a trade association, and its multitudinous committees and sub-committees. The third category contains the JMEA and its various committees, which were involved in the export control scheme implemented in conjunction with MITI. Finally, we will address the Home Electric Appliance Market Stabilization Council and a supposedly related group, the Four Associations Conference. These groups are alleged to have been involved in a Japanese home market price fixing conspiracy in the late 1950's.
The Japanese manufacturing defendants do not dispute either the existence of or their membership in any of these groups, and assert that the fact of membership alone is not evidence of the conspiracy which plaintiffs have pleaded. That proposition is, as we have seen in Part VI.A.4, supra, quite correct, and to the extent that plaintiffs have offered evidence of no more than mere membership, their case in this area must fall. Recognizing this fact, plaintiffs have attempted to supply evidence about the activities of the various groups through documents seized by the JFTC in the "Six Company Case" and by other documents produced in discovery. As we have observed, plaintiffs have been unable to procure direct evidence of conspiracy, and have therefore been relegated to establishing it by circumstantial means. Hence, the documents are of critical importance.
It is the documents that have been the principal object of our attention over the past months. As will be seen, however, they are not necessarily pellucid or self-explanatory. As will also be seen, because plaintiffs have adhered to a litigation strategy of refusing to take depositions of persons who might clarify these often cryptic or opaque documents, see discussion at pp. 1200-1202 infra, we have generally been left to interpret the documents in a vacuum. Although we shall, as we must, give the plaintiffs the benefit of all favorable inferences in analyzing the documents, they may have to suffer the consequences of their litigation strategy.
2. The Sub Rosa "Conspiratorial" Meetings of Executives Revealed by The Six Company Case
(a) Introduction; General Background
Plaintiffs describe the Okura Group as a regular monthly meeting of the highest executives of the Japanese CEP manufacturing defendants at the Okura Hotel in Tokyo. They are said to have met from as early as 1964 through at least September 1974. The Palace Group is said to have met at the Palace Hotel in Tokyo from 1964 until at least September 1974. The Palace Group was composed of senior managing directors, who are high-level executives just below the chief executive level. The Palace Preparatory Group is said to have been an assemblage of persons whose job it was to digest the matters discussed at meetings of the Tenth Day Group, see infra, and to segregate those matters relating to the price-fixing activities of the Tenth Day Group and those issues not decided by the Tenth Day Group and to prepare an agenda of the more important unresolved matters to be taken up by the Palace Group.
The Tenth Day Group, said to have been so named because its first meeting occurred on September 10, 1964, was attended by mid-level corporate managers involved in the day-to-day operation of the various divisions of the Japanese CEP manufacturers. In plaintiffs' submission, the Tenth Day Group was the real hub of the price-fixing conspiracy. More specifically, plaintiffs assert that at Tenth Day Group meetings, defendants' representatives secretly discussed and agreed upon: (1) the minimum price level for monochrome and color television receivers manufactured and sold by them in Japan; (2) the profit margins (in percentages) to be realized by retail dealers on sales of defendants' television receivers; (3) the profit margins to be realized by wholesalers on the sale of defendants' television receivers; (4) (indirectly) the manufacturers' shipment prices on television receivers manufactured and sold in Japan; (5) the relationship between the prices of television receivers manufactured by them and sold in Japan and the prices of television receivers manufactured by them and sold in the United States; and (6) prospective shipment and production figures. With respect to this last point, plaintiffs submit that defendants exchanged a variety of internal corporate information regarding immediate past records of production and shipment, exchanged corporate estimations of future demand for television receivers to be sold in Japan and to be exported, and also "voted" on projected production. Although the defendants have asserted that the Tenth Day Group was dissolved in 1966, plaintiffs contend that it continued until at least 1973.
The TS Group is said to have been a conspiratorial group which was attended by several smaller Japanese CEP manufacturers as well as by the larger manufacturers. It is said to have engaged in discussion of and agreement on the prices of television receivers to be sold in Japan, including installation fees and service charges, the nature of warranties to be furnished, the common advertising approach to be taken to certain products, etc. Although the TS Group was originally related to TV service, the character of the meetings is said ultimately to have changed so that the group talked about the same issues as the Tenth Day Group and used essentially the same procedures.
The Twentieth Day (or Hibiya) Group is said to have been formed at least as early as 1960 as a "secret forum for discussion of, and agreement upon, the export prices of television receivers." Plaintiffs allege that among the matters considered by the defendants at the Twentieth Day Group meetings were the prices of TV receivers exported to the United States. The plaintiffs also submit that through the Tenth Day and the Twentieth Day Groups, the "cartel" coordinated the relationship between TV export prices and domestic TV prices. The Twentieth Day Group is said to have met at least through November 1972.
The last group claimed by the plaintiffs to have been involved in secret conspiratorial activity is the MD Group, which plaintiffs say was a forum for secretly exchanging the most sensitive intra-corporate material, such as actual and projected production, shipment, and inventory figures. The MD Group members are also said to have voted on each company's projected production, providing a vehicle, in plaintiffs' submission, for adjusting production in conjunction with one another.
In the appendices to the FPS which we have described, the plaintiffs have elaborately set forth the membership and the dates of meetings of each of these groups. In the FPS, plaintiffs have stressed the overlapping membership of the groups and have pointed to the commonality of membership of these groups and the various EIAJ committees, and also of the JMEA and its committees, whose members were signatories to what plaintiffs contend were export cartel agreements.
Beyond such background matters as membership and dates of meetings, the plaintiffs have devoted hundreds upon hundreds of pages of their FPS to a putative description of the activities of these sub rosa groups. As is so often the case, plaintiffs' FPS contains conclusory statements about what the evidence shows without support in the evidence itself. In the case of evidence of the activities of the various "conspiratorial groups," the evidence is derived almost entirely from the JFTC record in the Six Company Case and various answers by the defendants to "Interrogatories Relating to Japanese Trade Associations and Other Groups."
Many of the documents here at issue are those dealt with at length in the Japanese Materials Evidentiary Opinion, which we have summarized in Part IV, supra, and which we have incorporated by reference herein. In that opinion, we excluded virtually all of the materials which can be claimed to constitute direct evidence of plaintiffs' broad conspiratorial allegations, including their "smoking guns," on the grounds that they were unauthenticated or were hearsay and not within any of the exceptions to the hearsay rules. It is important to note that the documents upon which the plaintiffs have most heavily relied those that are the most critical to their case were excluded not on some technical ground, but because they were found to be untrustworthy.
The most significant of those documents, the diaries and internal memoranda, all appear to have been written solely for the author, with the notations written in a kind of shorthand code which the writer presumably could understand but which, except for occasional excerpts, is unintelligible to others. We explained in the Japanese Materials Evidentiary Opinion:
As defendants correctly note, they (the diaries) are a "hodge podge" of notes in which the author has not explained with any degree of clarity what he meant, to what he was referring, or even where he was when he wrote it. While plaintiffs have clarified a few of the references in the diaries by cross reference to JFTC testimony or protocols, only an infinitesimal part has been thus explained. One would have to engage in the rankest of speculation to make sense out of the vast bulk of the diaries.
One cannot tell with any certainty where entries begin and end. There are many time gaps in the notebooks or diaries, and only a portion of the "conspiratorial meetings" otherwise demonstrated to have taken place are recorded in them. There are all kinds of arrows and innumerable symbols and notations and references which are unintelligible to the translators, who report those references as "illegible." Many of them are written in a code which only a cryptographer could solve.
There is both intrinsic and extrinsic evidence that many of the diary entries reflect occurrences at meetings which the diarists did not attend, but rather about which they were informed by others. The diaries plainly contain numerous instances of second and third level hearsay. Because of the manner in which the diaries are kept, however, it is not possible to sort out which entries are based upon the diarist's personal knowledge and which are based upon hearsay. There is no evidence of regular or continuous habit on the part of any of the diarists in making their notebook entries or checking them systematically.
505 F. Supp. 1190 at 1212. These observations are documented at length in that opinion.
Taking the diaries as an example of that litigation strategy, it is obvious that there are indeed persons who could eliminate the difficulty we have described and decipher any code-like references: the diarists themselves. In their absence, someone present at the meetings whose proceedings are supposedly recorded, or someone contemporaneously familiar with the contents of the diary or memo and the diarist's recording practices could serve. However, the plaintiffs, despite their role as proponents of the documents, hence bearers of the burden to qualify them, have not proffered the testimony in any form of any such person. Moreover, they have made it clear that they have no intention of doing so, before or at trial.
Rather, they have attempted to qualify the documents circumstantially and to offer selected (though extensive) excerpts therefrom.
The litigation strategy we have described is not merely our supposition. Edwin P. Rome, Esquire, plaintiffs' lead counsel, has confirmed the strategy time and again. For example, he noted during the course of the evidentiary hearings:
I assume personally, Your Honor, whatever onus there may be about the fact that we chose quite deliberately, and I state it of record, we chose quite deliberately not to undertake to depose persons in a foreign language when we had documents that in our view documented and explicated a conspiracy to violate American law.
PTO 268 at 143-44 (June 27, 1980). There are numerous similar statements by Mr. Rome in the voluminous record.
This litigation strategy was maintained in the face of repeated warning from the defendants that they intended to challenge the admissibility of the diaries, memoranda, protocols, and testimony.
Indeed, we challenged plaintiffs on several occasions, questioning why, having proceeded with this case for close to a decade and having inspected literally millions of documents, they had failed to take depositions to lay foundation for the admissibility of the seriously challenged JFTC materials. We also sharply questioned plaintiffs as to why, given the magnitude of their claims and the existence of so much fodder for examination, they had failed to take depositions, for substantive purposes, of a single Japanese executive who attended any of the allegedly conspiratorial meetings at the core of plaintiffs' case. We noted that we found it difficult to conceive of counsel pursuing that strategy in a case with purely U.S. roots, and that it was ordinary fare in complex cases for counsel to take depositions to qualify documents,
as well as for substantive purposes. Mr. Rome consistently responded that it was his considered decision not to do so.
That foundational and substantive depositions of Japanese executives were feasible is demonstrated by the repeated and uncontroverted representations of Japanese manufacturing defendants' counsel that, with the exception of Mr. Yajima who died in 1968, all of the diarists and all persons whose names were focused upon during the evidentiary hearings are alive and well in Japan, still employed by their companies,
and that they have been available for depositions throughout this litigation.
Defendants' explanation for plaintiffs' litigation strategy is not gentle. It is stated in the "Memorandum of Certain Defendants in Support of their Position that Materials from the JFTC Proceeding Are Not Admissible in Evidence" (pp. 3-4) as follows:
Indeed, it seems clear that it was precisely because the Japanese materials do not constitute records of the only two matters that could make them properly probative in this case, that plaintiffs chose not to follow the normal route of taking depositions to lay a proper foundation for their introduction. Plaintiffs knew that such depositions would not be helpful to their case and that, at the end of such discovery, while they might have come up with admissible evidence regarding discussions of "bottom prices" by six companies for two years (1965-1966), they would not come up with any admissible evidence of the creation of a U.S. export invasion fund or of a United States predatory price agreement. They, therefore, seized upon the ploy of attempting to introduce the materials without proper foundations and without any opportunity by the other side to cross examine and arguing to the jury that all kinds of wild inferences can be drawn from a handful of cryptic and basically incomprehensible "export references" found in materials which were obviously not written to record export activities. Since plaintiffs' direct case will last for some months, the jury will be hopelessly prejudiced by such tactics before the first of the defendants could even be heard.
In furtherance of this approach, plaintiffs adopted the tactic of piling into the FPS hundreds of thousands of materials and spuriously arguing that they are all evidence of conspiracy, so that they could create the argument that it would be extremely burdensome for them to lay foundations in the normal way, even though their PPTM and summary judgment briefs show that they are, in fact, relying on a relatively small number of such Japanese materials.
Notwithstanding our exclusion of the diaries and memoranda, there was certain evidence from the JFTC proceedings which we did admit and which must be considered in connection with our evaluation of the activities of the Tenth Day Group and the other "conspiratorial" groups. We refer specifically to the JFTC testimony, which we held admissible, with the exception of export references, against the defendants in the Six Company Case,
and to the protocols given to the JFTC investigators which we found admissible against the employer of the executive giving the protocol. Moreover, as we have noted above, plaintiffs have now placed reliance upon a number of other documents which they did not find important enough to proffer during the pretrial evidentiary hearings, but with which we shall have to reckon. Against this background, we turn to a discussion of plaintiffs' evidence as to the "secret conspiratorial meetings."
Any such discussion must take into consideration the two facets of plaintiffs' claims: the home market and the export market aspects of the "unitary" conspiracy.
Although the vast bulk of the JFTC materials relates to the home market, there are smatterings of export references which the plaintiffs contend are evidence of an export conspiracy. Because the references are all mixed in together, we do not find it useful to analyze the evidence separately as to each "conspiratorial" group. Rather, we shall look at what the record as a whole shows, first about the home market aspect of the "unitary" conspiracy and then about the export aspect thereof. The bulk of the relevant references is from the Six Company Case record, although we include within the compass of our discussion any other documents that plaintiffs have relied upon in this area of the case.
(b) Evidence of the Home Market Aspect of the "Unitary" Conspiracy; the Plaintiffs' "War-Chesting" Claims
We have canvassed the evidence and sought to extract therefrom the version most favorable to plaintiffs of what occurred at the meetings of the numerous groups and associations identified by the defendants in their answers to interrogatories and of the relationship of those meetings to the Japanese domestic CEP market. What we have gleaned, largely from the JFTC protocols and testimony but also from other admissible evidence of record, may be summarized as follows.
The Tenth Day Group and the other groups metamorphosed from social gatherings to hard core business gatherings involving exchange of information some time near the end of 1964 or in early 1965. The domestic TV market was then oversaturated, and there was tremendous retail price-cutting competition. The period from 1960 to 1965 had seen a steady decline in the price of monochrome TV, so that there was already a relatively low price threshold, and the manufacturers were concerned about the possibility that the retail market might collapse. Accordingly, they entered into serious discussions at the Tenth Day Group about a variety of business matters. It is apparent that their primary concern was prediction of demand so as to avoid overproduction, oversaturation, and further price decline.
However, there was also discussion at the Tenth Day Group meetings of so-called "bottom prices" and of wholesale, retail, and rebate margins.
The evidence all points to the conclusion that the "bottom price" was the lowest price that any manufacturer would charge. It is indisputable, however, that under the practice as it existed, any manufacturer could quote as a bottom price as low a price as it wished, but that once that bottom was determined, it was the general understanding of the manufacturers that no one would sell below that bottom for some (undetermined) period of time. Mr. Yajima of Toshiba defined bottom price as the "target" price, or the price where the price level ought to be within a foreseeable period, such as six months. The evidence is strong that there was no agreement on bottom price and that ultimately everyone was free to proceed with whatever bottom price he wished;
however, for purposes of the motion for summary judgment, we assume that there was such an agreement.
It is important to note that the "bottom" price was not the actual retail selling price, but rather the suggested retail (or so-called "cash normal") price. Yajima, for example, testified that the conferees were not overly concerned about the bottom price. He noted that a higher bottom price did not necessarily end up being a higher actual selling price, and that there was no relationship between the bottom price and the actual selling price. He said that "they each represent a separate element." Yajima also identified various countermeasure funds, as well as a variety of rebates paid by Toshiba, directly or indirectly to the retailers. He added that fixing only the bottom price and the profit margin rates did not automatically determine the price of TV sets marketed by Toshiba Shoji (Toshiba's marketing subsidiary).
Yajima testified before the JFTC that he would report to his superior, Mr. Kamakura, the bottom price and demand forecast figures disclosed at the Tenth Day Group meeting. Having discussed these matters at the meeting, Yajima said that he could "more or less guess each company's moves." He testified that he could "speculate on the basis of his hunches" what the companies were up to. There was no disagreement, however, on one point that cost of production, company manufacturing and marketing policies, and product line details were never disclosed by one company to another. Yajima, for instance, testified that up-to-date plans of the companies were not discussed at the Tenth Day Group meetings, and that topics so specific in nature were not discussed at all because that might reveal proprietary secrets of each company. Adachi also made clear that the companies did not discuss their profit margins. This uncontradicted testimony in and of itself seriously rends the garment of plaintiffs' conspiracy-cartel theory.
The best that plaintiffs can draw from the Tenth Day Group meetings then is that each company would disclose its projected "bottom" price as well as its projected wholesale and retail margin, and perhaps its rebate figure. Theoretically it was necessary to have agreement on the margins, since otherwise the suggested "bottom" or "cash normal" price would be inefficacious. However, insofar as margins are concerned, the only evidence is that there was considerable pressure to increase the margins, and that the companies during the relevant period agreed to increase the margins, particularly the retail margins, so as to protect the retailers from collapse. This, of course, would have the effect of decreasing the manufacturer's profit, the opposite of what plaintiffs posit in support of their theory of high profits in Japan to war-chest a predatory export raid on the United States market. Concomitantly, any agreement to limit production would also impede that supposed predatory export raid.
Moreover, and this may be a subtle distinction, but it is an important one, undisputed on the record, it is plain that the thrust of whatever price discussions there were was not to keep prices high, but rather to keep them from going all the way down. Thus, the minimum price which was being set was not a high price, but was rather as low a price as the manufacturers could bear without letting their retail market collapse, i. e., a price consistent with protecting retail margins. As one witness stated, they were talking about targets for the maximum price cut.
Yajima's testimony is important in this regard. He relates a Tenth Day Group meeting at which Kamakura, Yajima's Toshiba superior, proposed the "daring" figure of 175,000 yen as the bottom price of certain table-top models. Yajima testified that it was simply impossible to market the new line at a price below 180,000 yen, indeed 182,000 yen was the absolute limit. Had they introduced the product at 175,000 yen, they would have undoubtedly gone into the "red." However, it appeared ultimately that Kamakura had merely been trying to "smoke everybody else out," and Toshiba finally withdrew the 175,000 yen price and settled at 180,000 yen. The point is that the bottom price, according to plaintiffs' "star" witness, was in no sense a high price calculated to war-chest a predatory export raid.
At another point Yajima noted that circumstances did not allow Toshiba to market monochrome TV sets at prices as low as the bottom price. Moreover, according to plaintiffs' evidence, some manufacturers would complain at the meetings that they could not break even at a particular bottom price. The point again is that the so-called bottom prices were not high prices, but rather were relatively low prices, inconsistent with the plaintiffs' war-chesting theory. Indeed, according to the record, throughout the relevant period, bottom prices went down, not up!
There is also strong evidence, which we accept for F.R.E. § 104(a), though not for summary judgment, purposes, that there was considerable pressure for price cuts, not only to popularize color TV, but also to compete for business, so long as the cuts did not become ruinous. One figure which plaintiffs say was often mentioned in the sub rosa meetings and which is frequently referred to in the protocols and JFTC testimony 10,000 yen per inch was incontrovertibly a function of the common desire to lower, not increase, prices toward the end of popularizing color TV.
In terms of profits, we note the following colloquy which we had with Mr. Rome, lead counsel for the plaintiffs, during the final summary judgment argument:
The Court: Do you have any evidence of excessive or exorbitant profits that constituted the war chest, Mr. Rome, on the part of Matsushita, Sanyo, Sharp, or any of them?
Mr. Rome: Your Honor, to the extent you inquire about excessive or exorbitant profits, that in my respectful submission isn't required to be shown if there is a difference, if it can be shown that there is a profit being made, a higher price being charged than that which is being charged in the export market.
That provides a financial curb on
The Court: Maybe they paid it all out in dividends. I mean, I don't know what they did.
Mr. Rome: Maybe they did, your Honor.
We also note in this regard the substance of two documents offered by plaintiffs. The first is DSS 61, the JFTC testimony of Mr. Tsu Fujio of MEI, in which it is stated that profits in the Japanese CEP industry were very low. The second is a lecture entitled "Commemorative Lecture at the Appreciation Sale for the Attainment of 6 Million National (MEI's Japanese brand name) TV Sets: The Road to Co-Existence and Co-Prosperity," by K. Matsushita, delivered January 1, 1966. The document makes the following comments:
... profit has become very small indeed. It has dropped to half of former levels. .... Although business had been increasing year after year, more or less, profit is decreasing because competition has gradually become severe. In addition, because of general adversity in business there is a stronger impression that profit is decreasing ... (Total) quantity of production exceeds actual demand by far. This is one of the major reasons why profit plummets in these already unfavorable conditions. Another reason for decrease in profits seems to be coupled with (sic) excessive competition among manufacturers, agents, and sales stores, respectively....
This picture, of recession, plummeting profits, and cutthroat competition contradicts plaintiffs' argument that the Japanese market was characterized by high, monopolistic profits and the absence of competition.
one of the causes for sluggish business during the past two years was our (mutual) excessive competition. We competed with each other in terms of expanding equipment caused the business slump. Therefore, we must not have excessive competition for plants and facilities even if we do enter a period of prosperity. But, in the future, expansion that produces the effect of competition among rival companies must not be permitted. In a Japanese wrestling match, victory or defeat is important. But we do not compete for victory in business.
Plaintiffs have repeated Mr. Matsushita's statements again and again as evidence of the home market aspect of the conspiracy. It would be astounding if such public statements could be the foundation of a conspiracy claim. However, even assuming that these statements were acted upon by the Japanese manufacturing defendants, their very formulation does not suggest a conspiracy to gouge the Japanese consumer by charging high prices either to "war-chest" a predatory export raid in the U. S. CEP market, or for any other purpose. Rather, the formulation of the statements is more redolent of efforts to avoid domestic market collapse.
This first portion of our summary of the evidence concerning meetings of the sub rosa groups makes plain that we have found no evidence of a high price high profit conspiracy to war-chest a predatory export raid on the U. S. CEP market. We turn to the evidence of data dissemination to see if that can alter the picture. Before reviewing that evidence in detail, we are constrained to comment upon a problem we confront in dealing with plaintiffs' data dissemination claims that is far more vexing than one of mere organization the manner in which the data dissemination claims are advanced. Plaintiffs' representations in the FPS tend to be broad and conclusory, to the effect that certain types of data were exchanged among the conferees at certain meetings. However, when the source for the representation is consulted, it generally does not support the conclusory statement. While in some instances that is because the source, while appearing to be a statistical compilation of production, shipment, and inventory figures, is entirely in Japanese, usually it is for a more pervasive reason.
More often than not, the source for a conclusory statement is a "minute" of a committee meeting (often that of the MD Group or an EIAJ Committee) which contains only a one line agenda item suggesting that some aspect of data dissemination was on the agenda or was discussed, but supplying no detail of the conversations or of the dramatis personae involved.
For example, a typical EIAJ meeting minute (MIH 012781) says: "Data: ... (4) The 1973 Production/Export Statistics." What can we make of this? To what country were the exports discussed shipped? Obviously, there are many unanswered questions. We cannot draw an inference of conspiratorial activity from a bald statement that some subject may have been discussed without knowing the details of the discussion, the persons who discussed it, or what, if anything, was done as a result. Even where the documents are statistical in nature, a conspiracy cannot be inferred in a vacuum, without knowing how and by whom the statistics were prepared, what the figures represent, to whom they were distributed, and how, if at all, they were used.
The data dissemination area provides the most graphic example of the folly of plaintiffs' litigation strategy. It may well be that substantive depositions might not, Perry Mason-like, have ferreted out evidence of conspiratorial agreements on price. But they surely would have produced explanations of thousands of documents upon which plaintiffs rely but as to whose significance we can only guess.
So often, in dealing with the FPS, we feel like we are trying to nail jelly to the wall, as it were.
Notwithstanding these observations, we shall posit, in connection with our consideration of the summary judgment motions, that a broad range of information was exchanged among representatives of the Japanese companies. The nature of the exchange is what is critical, and we shall flesh out what can best be said for plaintiffs' position in the discussion to follow. As will be seen, there is far more "evidence" of home market data exchange than of exchange of export information. The majority of the cognizable data exchange took place under the aegis of the several subcommittees of the EIAJ and of the MD Group. MITI (and therefore also the JMEA) was also heavily involved, because it sought and obtained a great volume of statistical data from its Japanese manufacturers. We will here summarize the evidence of domestic data exchange as it appears from the EIAJ and sub rosa group documents. In the next segment, we shall do likewise with respect to the dissemination of export-related data.
It appears that domestic data dissemination occurred on two levels: dissemination by the EIAJ of aggregate statistics based upon information supplied by its members, and dissemination of individual company statistics. There is evidence that the EIAJ disseminated aggregate statistics about past production, sales, shipment, and inventories by region,
and also that individual company statistics of this variety found their way into the files of other companies.
There is evidence that demand forecasts were aggregated and distributed. Finally, although it is sketchy and elusive, there is some evidence of "voting" on production. It is important to note that 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.
Although the foregoing discussion strongly suggests that some kind of data dissemination program existed, the plaintiffs' information exchange claims are not cohesively presented; rather, they are a blunderbuss, amounting to random documentation, referenced helter skelter in the FPS. Moreover, these claims are not supported by evidence which creates a genuine issue of material fact.
As we have explained in Part VI.A.5, supra, the exchange of aggregate production and inventory statistics is insufficient alone to give rise to an inference of an agreement violative of Sherman § 1 under Maple Flooring. As we explained in Part VI.A.6, supra, to the extent that there is also evidence of the exchange of technical data and of product standardization, that kind of information exchange will not, except under unusual circumstances not present here, give rise to an inference of conspiracy. On the other hand, it may be that the data dissemination in Japan was ancillary to some kind of an agreement to adjust domestic production and avoid oversaturation of the market, although and this is another major flaw in plaintiffs' case the dates of the activity are most unclear. However, even assuming that the defendants were disclosing or signaling their individual production plans, and further assuming that the "vote" was tantamount to some kind of production limitation, there still is insufficient evidence to support an inference of the home market aspect of the "unitary" conspiracy.
First, there is no evidence of who did what at various meetings or whether any of the supposed plans were implemented. Second, data exchange does not constitute a per se violation, and even exchange of individual production, sales, shipment, and inventory data cannot sustain a conspiratorial 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, see Part VI.A.5, supra. There is no such evidence. Finally, even assuming that plaintiffs had adduced evidence of some kind of production limitation, that would not be evidence of a "unitary" conspiracy claim for the reasons that follow.
Although a limitation on production would be consistent with a scheme to keep Japanese domestic prices high, and would further be consistent with plaintiffs' claim that K. Matsushita had persuaded his conferees to "stabilize" the Japanese market against ruinous competition which was driving prices down and threatening the retail distribution system, it is inconsistent with plaintiffs' theory of conspiracy. In analytical terms, the conspiracy could fund a predatory export raid only if accompanied by high prices and high profits in the domestic market. However, as we have seen, see pages 1204-1206, supra, and 1213-1214, infra, the plaintiffs have offered no evidence of high prices and seem no longer even to contend that there was high profitability on domestic CEPs. At all events, the claim is inconsistent with the record, which contains no evidence of a high price conspiracy or of high profits, but which does reflect a policy of increasing the margins of the wholesalers and retailers to protect the distribution system at the expense of high profitability. Accordingly, plaintiffs' domestic information exchange claim is unavailing.
(c) Evidence of the Export Aspect of the "Unitary" Conspiracy
We have canvassed the evidence and sought to determine therefrom whether there is any evidence that an export conspiracy was conceived or implemented at the meetings of the numerous groups and associations identified by the defendants in their answers to interrogatories.
For the reasons that follow, we find no admissible evidence in the JFTC materials or in any other materials which refers or relates to the setting or coordination of export prices, the exchange of export price information relative to the claimed conspiracy, the impermissible dissemination of other export-related economic data, or any other aspect of the "export" component of the "unitary" conspiracy claimed by plaintiffs. This result follows inevitably from the fact that virtually all of the documents in the JFTC materials that are of major significance to plaintiffs' "export" case were excluded in the Japanese Materials Evidentiary Opinion. Because this aspect of their case is so critical to plaintiffs, however, we have elected to canvass the entire record, analyzing the significant portions of the excluded materials to determine whether the result would change our evidentiary rulings. We also consider some additional documents referenced in the FPS. As will be seen, the result would be no different.
The plaintiffs' February 12, 1980 submission, see note 152, supra, purports to be a compendium of export-related documents. This compendium lists 310 separate page references from the 6,317 pages in the JFTC record. However, a review of these 310 pages reveals that only a small number of them, amounting to approximately 30 separate references, actually contain language which could be argued to be an "export reference." The remaining pages do not refer to export even peripherally. Moreover, virtually all of the arguable export references relate to exports in general and not specifically to exports to the United States, and thus they are of no probative value.
In their final summary judgment briefs, defendants analyzed all of the export references. Upon review, we find their analysis (appropriately referenced to the documents themselves) to be accurate, and we draw upon it here. Fourteen of the cited references contain nothing more than estimates of future domestic and export demand or shipments, with no separate breakdown for the U.S.
We note again that such information exchange, common in trade association activity, is at best for plaintiffs of the Maple Flooring genre and cannot give rise to liability. One reference is a statement by Mr. Yajima that he was neither responsible for nor knowledgeable about Toshiba's export operations;
and three are statements by Mr. Kamakura of Toshiba, upon whose testimony plaintiffs also rely, that he too had no knowledge concerning Toshiba's export operations.
A number are passing and innocuous references to exports in general: MJ 2653, 2655, 2656 (excerpt from testimony of Mr. Nishi of Hitachi that the TV industry is an "export industry" and "specialty item of Japanese industry"); TJ 4610 (excerpt from Yajima Diary concerning an internal Toshiba meeting: "export ... more export ... there is a limit domestically...." "Strengthening of export"); TJ 4656 (excerpt from Yajima Diary concerning Tenth Day Group meeting: Hitachi "will domestically distribute TV's for export" a mysterious statement indeed); HJ 50033 (excerpt from diary of Mr. Yamada of Hitachi: "19" CTV: will exhibit at U.S.A. show, but the prospect of actual sales unsure"); HJ 50085 (excerpt from diary of Mr. Yamamoto of Hitachi concerning discussion at the Color TV Committee: "EIA re U.S. market analysis presented by RCA"); TJ 4439-4442 (excerpt from testimony of Mr. Fujio of MEI concerning technical capabilities and capital structure of Japanese companies as compared with U.S. CEP companies); MJ 2927 (statement of respondents' counsel that Mr. Fujio of Matsushita had testified regarding the growth of exports in the home appliance industry).
Numerous pages of the JFTC record contain the word "export" followed by certain small quantity figures (usually in the range of a few hundred, occasionally in the thousands). These statements are usually from the Yajima diaries and contain no explanation as to what the figures represent. We do not know whether the entries are internal company notes of a meeting with co-workers or quantities passed on to Yajima by someone else within or without Toshiba, nor do we know to what they refer.
We have paid special attention to the allegations in the FPS and elsewhere about the Okura Group, the Twentieth Day Group, and the MD Group, all of which supposedly dealt with export matters. We have, however, found nothing probative. Despite their centrality to plaintiffs' case, the FPS entries relating to the Okura Group are limited to membership and attendance data, which are not disputed, and to other material which has either been excluded (e.g., materials from Yajima's or some other diary), or which has been demonstrated to be of no value (see discussion of "intent" documents, Part VII.I, infra ). Most of the references to the Twentieth Day Group were contained in materials excluded in the Japanese Materials Evidentiary Opinion. No substantive reference of any significance survives.
We have carefully reviewed a host of documents submitted by plaintiffs with respect to the MD Group, even though they did not submit these documents for consideration at our in limine hearing.
The tenor of the MD Group documents was discussed in the preceding segment of this opinion. Those documents mostly refer to intended or expected domestic shipments, and not to export shipments as represented by the plaintiffs. Even if some of them list export statistics, these statistics represent only aggregates; no individual breakdown by company is included. As was the case with the domestic materials discussed supra, these purportedly export-related documents give us no idea what was said or done at any of these meetings or whether the plans or policies discussed in the "minutes" were ever implemented, much less who was responsible for doing so. To the extent that there may have been some kind of "voting" on export shipments of stereos and TVs, we can only speculate as to the nature and results of such voting.
The only portion of the 6,317 pages of the JFTC record which could arguably be called an export price reference is a five line note from the Yajima Diary which reads as follows: "Hayakawa export price olympic 16 inch $ 160 contract 20,000 sets 41% of those for domestic." We can only speculate on the meaning of this cryptic statement. There is no indication of its source or of where Mr. Yajima heard it, and it possesses no indicia of reliability. We explained at length in our Japanese Materials Evidentiary Opinion that the Yajima diaries are inadmissible on multiple grounds. See Part IV, supra. As we have noted, plaintiffs have made no effort to adduce testimony, by deposition or otherwise, to explain any of the cryptic references in the diaries and memoranda.
What the foregoing description represents is the plaintiffs' litigation strategy, discussed at pages 1200-1202, supra, in action. The principal manner in which plaintiffs have constructed their export conspiracy theory is to draw upon bits and pieces and fragments of sentences and paragraphs in the various diaries and memoranda and, proceeding from the premise that there had to be a conspiracy, fit in the "bits and pieces" to suit their purposes. What plaintiffs have in actuality been engaged in is not logical inference but speculation for, upon scrutiny, the "export references" are illusory.
The data dissemination record with respect to exports is qualitatively different from that with respect to the domestic market. Other than certain average past price information promulgated by the EIAJ, there is no evidence of price information exchange. There is evidence of demand forecasts for exports, but there is no evidence of any substance of "voting" on expected exports. Neither is there any evidence of exchange of production, shipment, and inventory data except for aggregates. Moreover, the aggregate figures do not even provide discrete data as to the U.S.
But assuming that they were otherwise probative, plaintiffs still could not establish the "unitary" conspiracy to destroy the U.S. CEP industry via such worldwide figures.
We concluded in Part VI.A.5 that cases which have found Sherman Act § 1 violations as a result 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 competition. Exchange of aggregate data and most non-price data, such as market conditions, trends, and forecasts, has generally been permitted, at least in the absence of some evidence of an agreement to use the information to fix prices, adjust production, or allocate market shares. Under these standards, plaintiffs' export-related data dissemination case fails the summary judgment test.
Even were we to assume that the record contains cognizable evidence of exchange of individual past production, sales, shipment, and present inventory statistics in the export context, such evidence would not help plaintiffs' case either. We explained in Part VI.A.5, supra, why this kind of data exchange does not tend to show a Sherman Act violation, at least, as here, in the absence of evidence of an anticompetitive purpose or effect. At all events, the kind of information exchanged in the export context is more in the Maple Flooring than the Container Corp. mode.
Moreover, as explained in Part VI.A.5, supra, information exchange is not per se illegal, and is only found to be unreasonable when it is conducted as part of or in furtherance of some anti-competitive scheme. While the anti-competitive agreement can be inferred from the data dissemination in some circumstances, in the circumstances of this case the conspiracy posited by plaintiffs cannot, as a matter of logic, be inferred from the types of data exchange activities purportedly described in these documents. The U.S. CEP market is an open, competitive market; the defendant companies, as new entrants into that market, had no power to affect either output or prices in that market. Thus information as to past shipments, present inventory, or forecasted demand would not be useful to alleged participants in a conspiracy to export at low prices to the U.S. market.
Plaintiffs, of course, proceed from the premise that the defendants had allocated the U.S. market via the Five Company Rule and that they were acting in concert in the U.S. market as a "monolith," competing only against the U.S. CEP manufacturers. In plaintiffs' submission, those activities would protect manufacturers pursuing a low price policy from ruination, or at least from substantial losses. However, there is no evidence to support these premises. There is no evidence of market allocation, see Part VII.F.2, supra, and no evidence that the defendants acted in concert with respect to exports (or that they administered or policed their supposed arrangement, see p. 1240, infra).
Moreover, there is no evidence that the defendants were able accurately to predict U.S. demand. Even if there were such evidence, the notion that this information would so strengthen the coconspirators as to enable them to effect their low price conspiracy is illogical given the uncontradicted information in the record about U.S. market conditions: Zenith and RCA had close to 50% of the market, there was competition among a large number of manufacturers, etc. To put it charitably, the analytical possibilities of a nexus between plaintiffs' evidence and the concerted predatory pricing conspiracy theorized by plaintiffs range from non-existent to gossamer, especially given the onus of a rule of reason test.
In sum, 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 no such evidence. But even assuming that plaintiffs had admissible evidence which might permit an inference that there was an export production limitation, that would not be sufficient under the facts of this case to permit an inference of concerted pricing activity, since for the reasons stated above, such an inference would be illogical here. The short of it is that our canvass of the record of documents generated in Japan shows no evidence, direct or circumstantial, on which plaintiffs' claim of a predatory export conspiracy can be founded.
(d) The Six Company Case Conclusion
There is simply nothing in the JFTC proceedings which supports the claim of a high price "war-chesting" conspiracy in Japan. The following colloquy is instructive in this regard:
"THE COURT: .... Do they (the protocols) demonstrate in terms of specifics, that the level at which they fixed the prices was artificially high?
MS. LARKIN: (Counsel for plaintiff) They demonstrate that they were setting a price without specifically addressing whether it was a high price or low price, but that it was an artificially created price decided among them, and the level of it being a high price conspiracy is something which we would prove by other documentation.
THE COURT: What other documentation?
MS. LARKIN: Well, the model price comparisons for one."
Whether or not Ms. Larkin's statement represents an abandonment of the "high price" conspiracy claim, it is clear that there is no evidence of such a conspiracy in the JFTC record.
Finally, the JFTC record does not show an export conspiracy. Indeed, export prices and export terms of sale were not discussed at the meetings relied upon by plaintiffs, and according to the only viable evidence on the point, in the JFTC protocols and testimony, most of the attendees were not involved in export business and had no knowledge of export matters.
Notwithstanding plaintiffs' broad conclusory allegations about the role of the Okura Group, the Twentieth Day Group, and the MD Group as vehicles for the export aspect of the alleged conspiracy, our careful canvass of the record has revealed no admissible evidence which refers to or relates to setting export prices, improperly exchanging export price information, or any other evidence of a low price export conspiracy. And evidence about the data dissemination of non-price matters is non-probative. The record of the Six Company Case taken all together thus does not supply any evidence which will help plaintiffs create a genuine issue of material fact on plaintiffs' television receiver conspiracy claims.
For reasons of convenience, we have subsumed within the foregoing discussion of the materials from the Six Company Case certain matters dehors the record of that case, especially the EIAJ documents relating to certain types of data dissemination. That fact has not altered our focus or changed the result. We turn now to plaintiffs' case as it is built upon the other EIAJ documents.
The Electronic Industries Association of Japan ("EIAJ") is a trade association to which a number of defendants have belonged since at least 1952.
The EIAJ operates through a large number of committees which deal with virtually every aspect of the manufacture, distribution, and exportation of CEP's (and certain other electronic products). The plaintiffs, in Appendix A to their FPS, identify some 86 committees of the EIAJ. As we have noted, in that Appendix they also identify the individual members of the various committees, naming the company employing that individual as well as the source of the information as to membership. This description alone consumes some 294 pages. The vast majority of the "conspiratorial meetings" listed in the Calendar of Conspiratorial Meetings which constitutes Appendix B to the FPS are EIAJ committee meetings. Plaintiffs' description of the activities or alleged activities of the EIAJ and its various committees is spread over some 550 pages of the FPS.
In both their PPTM and their FPS plaintiffs have set forth a list of the names of "some of the principal, pertinent committees of the EIAJ," which "convey a sense of the variety of the matters which received joint attention by defendants during their EIAJ committee meetings." PPTM at 105. They lay the heaviest stress on the so-called export committees: the TV Export Committee, the Radio Export Committee, the Tape Recorder Export Committee, the Transistor Radio Export Stabilization Committee, the Electron Tube Export Committee, and the Parts and Components Export Committee. The entire list, as presented in plaintiffs' PPTM, is set out in the margin.
The plaintiffs contend that the EIAJ committees served as fora for discussion of and agreement upon export and domestic prices of CEP's and for consultation and agreement upon "virtually every other phase of the manufacture, sale and exportation of consumer electronic products." PPTM at 105. The plaintiffs further allege that the formation of the JMEA and the EIAJ facilitated the achievement of the objectives of the defendants' conspiracy by providing two important vehicles for communication among the Japanese manufacturers and their affiliates. Moreover, according to plaintiffs, one of the first steps taken by the EIAJ was the elimination of competition among defendants by the creation of the so-called Market Stabilization Council, which we will discuss in Part VII.G.5.
Plaintiffs first seek to draw an inference of conspiracy by the mere demonstration of the names of the various committees, their membership lists, and the dates of their meetings. As we have seen in Part VI.A.4, supra, such an inference is improper, for mere opportunity to conspire is not probative of actual conspiratorial activity. Moreover, no inference can be drawn from plaintiffs' surmise, based apparently on the name, as to any given committee's purpose. The enormous amount of effort which plaintiffs have spent in listing the names of the various committees, identifying particular committees as part of the EIAJ, and explaining who attended the meetings of each committee, and when it met, all of which creates no inference of conspiracy, itself suggests the weakness of plaintiffs' claims.
Plaintiffs next seek sustenance in the General Rules of the EIAJ, which set forth a series of general purposes, subsidiary objectives, and authorized programs. According to the General Rules, the EIAJ's purpose is to bring about the prosperity of the manufacturers through the mutual cooperation of the members, and one of its subsidiary objectives is to expedite the overall growth of the electronics industry. Among the programs expressly established in the General Rules is one for the collection of statistics and data and "affiliation and cooperation with other industrial associations related to the electronics industry and other related organizations." (Article IV). However, these objectives and activities (and those set out in the margin)
are insufficient to create an inference of conspiratorial activity. First, they are too general; conspiracies are made of more specific stuff. Second, and more important, all of these matters come within the purview of what we have explained in Part VI.A.5, supra, as the kind of trade association, data dissemination, and product standardization activities which do not offend the Sherman Act.
(1) Market conditions and trends in the United States and other countries;
(2) Public relations and lobbying efforts within the United States;
(3) Compliance with various U.S. regulations concerning such matters as the designation of country of origin on imported products and product safety;
(4) Various investigations and proceedings instituted in the United States and Canada against Japanese CEP manufacturers calling for the imposition of import restrictions, including anti-dumping proceedings, the countervailing duty investigation, the "escape clause" investigation, and the U.S. International Trade Commission § 337 proceeding initiated by Sylvania;
(5) The effect of United States import surcharges;
(6) Concern about protectionist sentiment in the United States and the threat of import restrictions in the U.S. market;
(8) After-sales service in the United States;
(9) Standards for testing the performance of televisions for export to the United States;
(10) Televisions donated to India;
(11) Requests for pricing information from MITI;
(12) Restraints on exports to Western Europe;
(13) The effect on television exports to the United States of the Japanese government's decision to float the yen.
In order to give a complete picture of the agenda items reflected in the FPS, we comment specially on four categories. First, the agendas place a heavy emphasis on technical matters, particularly those relative to product standardization and product safety. Secondly, we note a significant number of agenda items reflecting joint efforts to deal with the Japanese government with respect to Japanese commodity tax law. Third, we note repeated agenda consideration of simplification of export procedures. Fourth, there is frequent reference to exportation problems with countries around the world, such as West Germany, the Benelux countries, and Canada.
Our discussion in Part VI.A.5 (Data Dissemination), (and in the preceding segments of this Part VII) and Parts VI.A.6 (Product Standardization and Technical Research Exchange) and VI.A.8 (Joint Activities in Promoting Public Relations and Joint Legal Action in Response to Common Problems), supra, makes clear that these agenda matters, without additional evidence of the kind plaintiffs failed to adduce, e.g., evidence of price fixing or exchange of identifiable actual price data, or of an actual agreement (or a purpose or effect) to restrain competition, are not, alone or together, or coupled with all the other evidence in the case, a basis for inferring an antitrust conspiracy in violation of the Sherman Act.
We have reviewed all of the plaintiffs' translated material relating to the EIAJ and its various committees in an effort to determine the existence of support for the broad conclusory statements in the FPS alleging that the EIAJ engaged in conspiratorial activities. Consistent with our earlier declarations, we shall not burden the record by recounting all such matters, limiting ourselves to the more important groups of documents. However, it is essential that we state our conclusion from this review: we can find nothing in any of these materials (primarily documents) to implicate defendants (or any one of them) in the unitary conspiracy asserted by the plaintiffs, or in any aspect thereof.
None of the "minutes" reflect the involvement of the Committee with export matters. Indeed, in the 61 meetings, there are only six passing references to exports which are of no significance whatever and do not point in any way to an export conspiracy.
Of primary concern to this Committee, as reflected by the "minutes," were commodity taxes, safety, consumer protection problems, government regulations,
transmission interference, stimulation of demand for television in Japan, and educational television. This is amply illustrated by the frequency with which certain topics were discussed. For example, commodity tax matters were discussed at 26 meetings, and safety matters were discussed at 22 meetings. The short of it is that the Television Business Committee was solely a domestic committee and that no export conspiracy was created at its meetings. Moreover, as we have seen, the product safety and government relations concerns plainly do not create an inference of Sherman Act violation, see Parts VI.A.6 and 8, supra.
The minutes also show an intense involvement by MITI in the activities of the Committee. MITI representatives were in attendance at numerous Committee meetings. Moreover, a review of the minutes reveals that even when MITI officials were not physically present, much of the Committee's time and energy was spent discussing requests made by MITI or preparing materials to submit to MITI. For example, at the October 15, 1973 meeting (D 15109-11), the following items were apparently discussed:
Pre-heat presentation to MITI
Issues concerning advertising and labelling of home electric appliances
Report on MITI's proposed guidelines and the attitude of Tokyo's sanitation department on the question ...