Plaintiffs have taken no depositions of anyone who is familiar with this document, anyone who was connected with the Market Stabilization Council, or anyone who attended meetings of that group. Because the plaintiffs have preferred to argue from unilluminated "bits and pieces," what we have is a mere piece of paper instead of a meaningful document. In terms of the principles enunciated in the Japanese Materials Evidentiary Opinion, plaintiffs have offered nothing which would establish the Nine Essential Points as an admission or as a business record, or which would justify its receipt under the residual hearsay exception. This includes Melco document 20404 submitted to the court after the summary judgment argument by letter of October 20, 1980.
However, even assuming that the document containing the Nine Essential Points could be admitted into evidence against certain of the defendants, it would be of no probative weight, for it has nothing whatever to do with export matters. It also could not be used to show "war-chesting," for two reasons: (1) there is nothing in the record to show that any of its provisions were ever agreed to or, if so, were carried out,
and (2) it appears on its face to concern, at most, resale price maintenance at the retail level and that does not implicate any increase in the profits of the manufacturers. We add that, as appears from documents reflecting activities of the groups involved in the Six Company Case, see discussion infra, resale price maintenance was a vehicle to protect the economic viability of the retail outlets of the manufacturers. A price maintenance policy which would protect retailers from cutthroat competition, thus keeping their own profit margins up, would not aid the manufacturers of the goods. Indeed, the protection of the retailer and increase in the retailer's profit margins would be at the expense of the manufacturer, and that would be inconsistent with the war-chesting theory. While, to be sure, the retailer is an important part of the distribution chain, the mere existence of the Nine Essential Points of Implementation does not suggest that the manufacturers were charging high prices as a part of a high price/war-chesting conspiracy.
In addition to the foregoing deficiencies, plaintiffs have made no effort whatever to show that prices of CEP's in Japan went up or failed to go down or were stabilized or were in any other way affected by the activities of the Market Stabilization Council or the provisions of the Nine Essential Points. Even more important, plaintiffs have made no effort whatever to show that the profits of any Japanese company regarding consumer electronic products were greater following announcement of the Nine Essential Points than prior thereto. Were plaintiffs to put the Nine Essential Points before the jury, they would not establish any facts helpful to plaintiffs' case.
Plaintiffs allege that during the period between the 1957 JFTC proceedings and the origination of the groups discussed at such length in connection with the Six Company Case, infra, a group known as the Four Associations Conference engaged in conspiratorial activity; hence we consider this group before turning to the Six Company Case. Several of the defendants belonged to the Four Associations Conference; in plaintiffs' submission, it arose in response to the JFTC's surveillance of the CEP industry. However, we have canvassed the documentary references in the FPS to see if we could find any support for plaintiffs' allegations. We find none.
We could have ignored the Four Associations Conference.187A We mention it only because of the approach which the plaintiffs have taken in connection with that group, and because that approach is endemic, i. e., plaintiffs spend an enormous amount of time in their FPS demonstrating how individuals who attended meetings of one group also attended meetings of other groups. If, of course, one starts with the presumption of an overall conspiracy, such facts will plainly extend the conspiratorial skein. Otherwise we fail to see how that proves anything in the absence of evidence as to the activities of the groups.
We have now concluded our review of the many facets of the activities of certain groups and associations in Japan. However, the voluminous "evidence" adduced by plaintiffs amounts to nothing. On the arguendo assumption that there is some evidence of conspiratorial activity in Japan, we turn to an analysis of plaintiffs' "connection" documents.
H. The "Connection" Documents
In a variation on the export reference theme, plaintiffs have alleged that the existence of an export conspiracy is demonstrated by a showing that Japanese executives engaged in discussions of the relationship between the home and export markets. They have advanced this theme through a series of what they dub "connection documents," which we take up at this juncture.
The notion of "connection" documents was coined by plaintiffs but has also been used by defendants. The parties have used the term "connection" variously to refer 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 from MITI and/or U.S. Customs either the extent of the disparity between home market and U.S. prices or the fact that sales in the U.S., by virtue of rebates, were below the check price reported to MITI and to U.S. Customs. The proffered entries give the plaintiffs no comfort.
We start with Yajima's diary, which includes a 1966 entry which suggests that the JFTC asked Toshiba to explain the price difference between its domestic and export TV prices. A subsequent entry in the diary, which does not purport to be the record of any meeting, would appear to be Yajima's analysis of the cost bases for the differences, including a list of various costs not incurred in export sales. A September 6th entry purports to indicate that the issue was raised at the Tenth Day Group meeting. However, the apparent conclusion of the conferees at the meeting was that there was no reason to worry about the lack of any connection between domestic and export prices.
Plaintiffs also cite two "connection" entries during the same time period from the diary of Hitachi's Mr. Yamada.
The first entry is:
(footnote omitted). One would need a crystal ball to divine what this entry means. The Twentieth Day or Hibiya Group is reputed to have dealt with export matters, and perhaps it could be inferred from this entry that someone (perhaps a Sanyo employee, but that is by no means clear) may have expressed some thoughts concerning check prices at a meeting of the Palace Group, which allegedly was a "domestic" group. That is only speculative, but even if it were true, such a fact would hardly be probative of the existence of an agreement to coordinate domestic and export prices or of any other conduct contrary to the Sherman Act.
The second entry, also referencing the Twentieth Day Group, states:
(footnote omitted). This entry is even more cryptic than the one cited above, and we cannot permit the inference to be drawn therefrom of the existence of any conspiracy involving domestic and export prices.
Turning to JFTC testimony, which we have held admissible against the defendants in the Six Company Case, we find plaintiffs' position no better served. Thus, Mr. Fujio of Matsushita was asked to explain the difference between Matsushita's domestic and export prices:
Said trial examiner: From what you have said, I understand that you are exporting a large quantity to America. How about the prices (in America) as compared with domestic prices?