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August 12, 1985

JULES LINK and SOLOMON KATZ, on behalf of themselves and all others similarly situated, Plaintiffs

Cahn, J.

The opinion of the court was delivered by: CAHN


Before me are post-trial motions in this antitrust class action. The defendant is Mercedes-Benz of North America, Inc. ("MBNA"), a wholly-owned subsidiary of Daimler-Benz, Aktiengesellschaft. *fn1" Plaintiffs are a certified class of consumer purchasers of nonwarranty repairs of Mercedes-Benz automobiles from 1970 to the present. *fn2" For the reasons set forth below, the motions will be granted in part and denied in part.

 I. Background

 Plaintiffs allege that MBNA and its dealers conspired to fix and raise the price of nonwarranty repairs of Mercedes-Benz automobiles. *fn3" They contend that the conspiracy was effected through the dealers' use of the MBNA Labor Time Guide to calculate repair charges to consumers. As explained in my memorandum opinion of August 17, 1984, the time guides list many typical repairs and assign a certain number of operation hours to each. Dealers who use the time guides do not charge consumers for the actual time spent repairing their automobiles but charge whatever "operation" period of time is specified in the guide for the particular operation. In addition, each dealer sets an hourly rate to be charged for mechanics' services. The hourly rate is multiplied by the time unit specified in the time guide to reach a total price for each repair. Plaintiffs contend that MBNA and its dealers agreed to use the time guides as a mechanism for fixing and raising the price of nonwarranty repairs, in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1983).

 After a lengthy trial, the jury returned a verdict for defendant, finding that MBNA had not conspired with its dealers to fix and raise the labor charges for nonwarranty repair work. *fn4" Plaintiffs have filed a motion for a new trial or judgment n.o.v., a motion to alter, amend, and vacate the judgment, and a motion to set trial and hearing dates for injunctive relief relating to labor and parts. *fn5"

 II. Motion for a New Trial or Judgment N.O.V.

 Plaintiffs advance six major arguments in support of their motion for a new trial. First, they argue that a new trial is warranted because there was an unauthorized contact with a member of the jury during trial. Second, plaintiffs contend that the court improperly submitted an issue to the jury and improperly excluded another. Third, they assert that, after informing counsel of the instructions it intended to give to the jury, the court impermissibly deviated from that charge. Fourth, plaintiffs argue that the court gave the jury erroneous instructions on price-fixing and concerted action. Fifth, they maintain that the court erred in the admission and exclusion of certain documentary evidence. Sixth, they contend that the jury verdict was against the weight of the evidence. In addition to these primary claims, plaintiffs raise numerous other arguments in support of their motion for a new trial. They also maintain that they are entitled to judgment n.o.v. because defendant failed to adduce sufficient facts to justify the verdict.

 A. Juror Contact Issue

 Mr. Fura was contacted immediately by telephone, put under oath, and questioned on the record as to his knowledge of the incident. According to Mr. Fura, Mr. Brooks told him that, during the course of the trial, Mr. Brooks had received a telephone call from a member of the defense team at the hotel room where he was staying. The caller reportedly said, "I don't want you, I want one of my lawyers." Transcript of October 9, 1984, Hearing ("Fura Transcript") at 33. Mr. Fura stated that this was the full extent of his conversation with Mr. Brooks on the subject. Fura Transcript at 33-34.

 Mr. Brooks appeared in person for questioning before the court on October 10, 1984. Again, counsel for plaintiffs and defendant were present. In response to the court's inquiry, the following colloquy took place:

Q: Mr. Brooks, you were a juror in the case of Link, et al. v. Mercedes-Benz, et al., and, as I just told you, the lawyers think that there is a possibility that some person who may have said he was a lawyer telephoned you during the trial, at some point during the trial.
Is there something to that?
A: Your Honor, I did receive a phone call by someone anonymous. Now, I don't know whether it was a lawyer or someone that had the wrong number, but I identified myself by saying that, "I'm James Brooks," and at that time I was in -- I don't remember the room, but I told him my room number, and they hung up.
Q: There was nothing else said?
A: Nothing else, Your Honor.
Q: Did the voice sound familiar to you?
A: It did. It sounded like Mr. Spiegel, it sounded like him, but I couldn't be certain.

 Transcript of October 10, 1984, Interrogation of Juror James Brooks ("Brooks Transcript") at 3-4. At this point, Mr. Brooks was asked to wait in a side office and the court asked the lawyers if there were any questions they wished the court to ask. In response to the lawyers' suggestions, Mr. Brooks was called back for more questioning. At that time, he answered as follows:

Q: Mr. Brooks, could you be a little more specific about what was said in the phone call by the caller and by you?
First, tell me, to the best of your recollection, everything the caller said to you.
A: Well, the caller asked for a name, I cannot remember the name, and I responded by saying: "No, I'm James Brooks, and this is room. . .," whatever, I can't remember the room, I don't know if it was 212 or 310 or whatever, and that was it.
Q: Nothing else was said?
A: Nothing else was said.
They asked for a name, and I responded by giving them my name.
Q: What made you think that this caller was an attorney in the case?
A: Well, like I said, the voice sounded like Mr. Spiegel. That's the only identification I could -- I could recognize the voice, you know.
Q: Nothing was said about the case?
A: Oh, no; no, Your Honor.
Q: What did you say to the caller?
A: I said: "No. This is James Brooks," room number whatever, and they hung up.

 Brooks Transcript at 14-15. Mr. Brooks went on to say that the topic of the phone call had come up because the jurors were discussing where the lawyers stayed during trial. Mr. Brooks recalled saying to the other jurors that he had seen a few of the lawyers at the Hilton Hotel and ...

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