In re AUTOMOBILE ANTITRUST CASES I and II
No. A134913
First Dist., Div. Four
July 5, 2016
1 Cal. App. 5th 127
Zelle, Craig Carter Corbitt, Jiangxiao Athena Hou, Michael S. Christian; Saveri & Saveri, Guido Saveri, R. Alexander Saveri; Berman DeValerio,
Latham & Watkins, Margaret M. Zwisler, Gregory G. Garre, Jason L. Daniels, Michael E. Bern, Katherine I. Twomey and Adam R. Thomas for Respondents.
OPINION
REARDON, J.—In this coordinated proceeding, certain purchasers of new automobiles in California (plaintiffs) brought state law claims against a number of automobile manufacturers and dealer associations under the Cartwright Act (
On appeal, plaintiffs challenge the trial court‘s grant of summary judgment in favor of Ford, arguing that the evidence presented in this case was more than sufficient to raise a triable issue of material fact as to the existence of an illegal agreement to curb exports. In addition, they claim that the trial court improperly excluded certain direct evidence of the alleged conspiracy. Based on our de novo review of this matter, we conclude that summary judgment was appropriately granted to Ford U.S. However, we agree with plaintiffs that the admissible evidence presented was sufficient to demonstrate the existence of a material fact as to whether Ford Canada participated in an illegal agreement to restrict the export of automobiles from Canada to the United States in violation of the Cartwright Act.1 We therefore reverse the trial court‘s grant of summary judgment in favor of Ford Canada.
I. BACKGROUND
A. Preliminary Matters
This litigation began over a decade ago when, in early 2003, more than a dozen different lawsuits were filed in California against various automobile manufacturers and trade associations, each alleging state law causes of action for antitrust conspiracy and unfair business practices and each filed as a class action on behalf of individuals who purchased or leased new vehicles in California that were manufactured or distributed within a certain period of time by one of the named defendants. The lawsuits were eventually coordinated into this proceeding. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 106 (Automobile Antitrust Cases).) Thereafter, in October 2003, plaintiffs filed their consolidated amended class action complaint, the operative pleading in this matter.2 In addition to Ford, the class action complaint named numerous other automobile manufacturers
As indicated above, the complaint alleges that defendant automobile manufacturers and dealer associations violated state antitrust and unfair competition laws by conspiring to restrict the movement of lower priced Canadian vehicles into the United States market, thereby avoiding downward pressure on new vehicle prices in the United States. According to plaintiffs, during the time frame relevant to this litigation, defendant automobile manufacturers typically charged their California dealers between 10 and 30 percent more than they charged their Canadian dealers for the same make and model vehicle. Ford Canada, for example, estimated that a 2000 model F350 crewcab 4x4 DRW Lariat could be imported from Canada and sold at a price $8,265 less than its United States counterpart ($29,569 as opposed to $37,834). Maintenance of this two-tiered pricing system required the continued segregation of the Canadian and United States automobile markets.
Beginning in the 1990‘s, however, trade policy between the United States and Canada made exporting simpler and less expensive. Moreover, after the safety and environmental regulations governing new vehicles sold in the United States and Canada were harmonized between 1998 and 2000, the vehicles sold in the two countries became virtually identical.4 Then, from at least 2001 through 2003, the currency exchange rate differential between the
Plaintiffs claim that, in the face of this mounting activity by exporters, the manufacturer defendants illegally agreed that they would all hold firm, each doing their part to stamp out Canadian exports, rather than taking the profits available by permitting their Canadian dealers to sell Canadian cars freely into the United States market. According to plaintiffs, this alleged conspiracy was created and implemented through a series of meetings and conference calls among defendant manufacturers. These contacts were facilitated by a number of trade associations, including CADA; the Canadian Vehicle Manufacturers’ Association (CVMA), which represented the “key or leading” automobile manufacturers in Canada, including Ford Canada, Chrysler Canada, and GM Canada; and the Association of International Automobile Manufacturers of Canada (AIAMC), which represented international manufacturers such as Honda Canada, Toyota Canada, Nissan Canada, BMW Canada, and Volkswagen Canada.
Plaintiffs further contend that the manufacturers used a variety of different tools to discourage the export of new Canadian vehicles to the United States, thereby furthering the goals of their conspiracy. By the late 1980‘s, for example, Ford had modified its Canadian dealer franchise agreements (generally Franchise Agreements) to forbid export sales. The Franchise Agreements of other manufacturers contained similar provisions. In addition, manufacturers created and frequently updated “blacklists” of entities known to export vehicles for resale so that their Canadian dealers could consult the lists and refrain from selling to those entities. Additionally, the manufacturers began
Some manufacturers also required their Canadian dealers to include “no export” clauses in their sales agreements, under which buyers, themselves, could be required to pay a penalty if the purchased vehicle was transferred to the United States within a designated period of time. Moreover, Canadian dealers were required to conduct a “due diligence” investigation of every buyer to identify potential exporters. If a Canadian car arrived in the United States despite the erection of these substantial barriers to export, manufacturers voided warranties for the repair of new vehicles exported from Canada, declined to provide information regarding recalls, and withheld certificates of origin from exporters. Distribution controls were also placed on the parts used to convert odometers from kilometers to miles.
Although the cross-border sale of used vehicles began to skyrocket in 1999 and 2000 and continued at very high levels throughout the alleged conspiracy period, plaintiffs presented evidence that the manufacturers’ multi-faceted attempt to restrict the export of new vehicles from Canada to the United States proved effective. In fact, export sales of new vehicles actually decreased during the alleged conspiracy period, despite circumstances amounting to a “perfect storm” for cross-border arbitrage. (Cf. In re New Motor Vehicles Canadian Export Antitrust Litigation, supra, 522 F.3d at p. 10.) Plaintiffs maintain that cutting off this discount distribution channel allowed defendant automobile manufacturers to sell or lease new cars in California, and indeed throughout the United States, at artificially inflated prices. Thus, according to plaintiffs, class members paid more to buy or lease new vehicles during the conspiracy period than they would have in the absence of defendants’ illegal agreement to restrict exports. Plaintiffs’ expert estimates total class damages at $1.07 billion.
During 2004 and into 2005, the trial court considered a number of preliminary motions filed by defendants, including motions contesting personal jurisdiction and demurrers to the consolidated complaint. For example, the trial court concluded that it lacked personal jurisdiction over four of the nonresident defendants—Honda Japan, Volkswagen AG, Nissan Japan, and
In addition, a similar lawsuit had been filed in federal court against many of the same defendants, alleging violation of federal antitrust laws. (See In re New Motor Vehicles Canadian Export (D.Me. 2004) 307 F.Supp.2d 136, 137–138 (the federal multidistrict litigation or federal MDL).) Parallel cases were also pending in a number of other state courts. In June 2004, the trial court issued an order, after consultation with Judge Hornby—the judge in the federal MDL—coordinating discovery among this action, the federal action, and other state actions.
Plaintiffs filed their motion for class certification in the instant matter in the spring of 2005. Proceedings were stayed, however, while the parties conducted extensive coordinated discovery and litigated their class certification motion in the federal MDL.7 Ultimately, in May 2009, the trial court granted plaintiffs’ motion for class certification in this proceeding. The court defined the class generally as: “All persons and entities residing in California on the date notice is first published, who purchased or leased a new motor vehicle manufactured or distributed by a defendant, from an authorized dealer located in California, during the period January 1, 2001 through April 30, 2003, for their own use.” We later denied defendant‘s petition for writ of mandate seeking review of the class certification order. (General Motors of Canada, Ltd. v. Superior Court (Aug. 13, 2009, A125424) [nonpub. order].)
In the interim, Judge Hornby issued an opinion on July 2, 2009, in the federal MDL action, addressing the viability of the remaining state law damage claims. (In re New Motor Vehicles Canadian Export Litigation, supra, 632 F.Supp.2d at pp. 42, 44–45.) Before the federal court were summary judgment motions from each of the remaining manufacturer defendants challenging the existence of a conspiracy and a joint summary judgment motion arguing lack of evidence of antitrust impact. (Id. at p. 45.) With respect to the conspiracy issue, Judge Hornby concluded that there “is probably enough evidence to reach a jury on whether the manufacturers had
While this litigation progressed in both state and federal courts, Toyota reportedly agreed to settle. Additionally, in 2009, both GM and DaimlerChrysler U.S. declared bankruptcy, effectively removing them from the case. Following these settlements and bankruptcies, the remaining defendants litigating this action were Ford, GM Canada, Nissan USA, and Honda.
B. Ford‘s Summary Judgment Motion and Plaintiffs’ Response
In January 2010, Ford filed a motion for summary judgment, arguing that plaintiffs could not prove on the evidence presented that Ford‘s conduct in restraining exports during the identified conspiracy period was more likely than not the result of an unlawful agreement rather than independent action.9 Specifically, Ford advanced evidence that it had been independently combating the problem of what it termed “gray market exports” for decades prior to the designated conspiracy period and continued to do so during that period for the same legitimate business reason—that is, to preserve the integrity of its dealer distribution system. Given this non-conspiratorial explanation for its enforcement of export restraints, Ford argued that its conduct was as consistent with permissible competition as it was with unlawful conspiracy. Thus, summary judgment in its favor was appropriate. In addition, although Ford conceded that it had attended a number of meetings with other manufacturers during the conspiracy period at which possible joint action to combat the export problem was discussed, it asserted that no such joint action was ever taken as a result of those meetings. Indeed, Ford claimed that its actions to stop exports after these industry meetings clearly differed from the methods
In opposition to Ford‘s summary judgment motion, plaintiffs contended that they had produced documentary and testimonial evidence showing that defendants made a conscious commitment to a common scheme—the restraint of Canadian new vehicle exports to the United States—and thus summary judgment was inappropriate. Further, plaintiffs suggested that the manufacturers’ claimed “legitimate business reason” for their export restraints was likely pretextual given the economic realities of the situation. Specifically, according to plaintiffs’ expert, absent an agreement among the manufacturers to block exports, all defendant manufacturers facing competition from Canadian exports would have maximized profits by lowering list prices in the United States rather than losing United States sales to competitors’ Canadian exports. Finally, plaintiffs argued that it was irrelevant that the manufacturers did not impose the exact same export restrictions during the alleged conspiracy period. Rather, evidence that all of the manufacturers imposed some form of restraint during the relevant time frame and that none chose to abandon their export controls in favor of quick profits was sufficient evidence of parallel conduct.
C. The Summary Judgment Hearings and Decisions
The trial court ultimately held a number of hearings on the four summary judgment motions before it which argued lack of an actionable conspiracy. After a hearing on January 18, 2011, the trial court granted summary judgment motions in favor of Nissan USA and Honda. In particular, the trial court concluded that the evidence produced by the two manufacturers—including evidence of a legitimate business purpose for the challenged conduct, denials of wrongful behavior, and evidence of refusal to participate in meetings that might possibly have been viewed as conspiratorial—was sufficient to shift the burden to plaintiffs to produce evidence of an issue of material fact regarding the existence of the alleged conspiracy. Although the trial court acknowledged that such a conspiracy was “in the economic self-interest of each of the defendants, perhaps,” it did not find this fact probative of the existence of an impermissible agreement among the parties, which it deemed “the heart” of any Cartwright Act claim. Nor did it find evidence of shared warranty policies or of the “stepping up” of anti-export activities after the date of the alleged conspiracy particularly relevant to the existence of an actionable agreement. In sum, since the evidence submitted by plaintiffs was “not sufficient to raise a plausible inference that either Honda or Nissan USA entered into an agreement with any competitor to restrict export sales from Canada,” the trial court granted both parties’ summary judgment motions.
In response, Ford first maintained that there was no evidence that Ford U.S. “conspired with anyone in Canada to do anything.” Ford further asserted that, with respect to Ford Canada, the evidence established, at most, that the manufacturer attended meetings and conference calls at which possible solutions to the export problem were discussed. But, according to Ford, no agreement with respect to any particular joint course of action was ever reached. Rather, Ford strenuously claimed, the evidence established that it had been taking unilateral action to curb exports for 15 years, and there was no evidence that its actions changed in any way during the period of the alleged conspiracy. GM Canada made similar arguments, stressing its repeated refusals, when asked, to engage in meetings or any kind of joint activity. After argument, the trial court directed plaintiffs to submit a summary of their conspiracy evidence.
While these summary judgment proceedings were pending, however, GM Canada agreed to settle its four remaining state court actions, including this California proceeding. This left Ford U.S. and Ford Canada as the sole remaining defendants in the case. At the continued hearing on May 10, 2011, plaintiffs reviewed the evidence they believed supported the existence of an unlawful agreement to restrain exports. Ford then challenged plaintiffs’ evidence and conclusions. In the end, the trial court authorized certain additional filings and indicated that it would take the matter under submission as of July 8, 2011.
In particular, the trial court concluded that while Ford “met at different times with other alleged co-conspirators and discussed their common problem of the importation of cars from Canada to the United States, . . . such discussion of a common problem by itself is not a violation of the Cartwright Act.” Further, the trial court opined that, where there was insufficient evidence of an agreement, evidence that information was exchanged among alleged co-conspirators, or that some alleged co-conspirators “stepped up” their efforts to restrict exports after the start of the alleged conspiracy period, was not enough to carry plaintiffs’ burden. Finally, the trial court stated that the evidence presented by plaintiffs regarding the alleged co-conspirators’ motive and economic interest to conspire was insufficient, standing alone, to satisfy plaintiffs’ burden of production. In sum, under Aguilar, “[t]here was no evidence to support a conclusion that it was more likely than not that [Ford U.S.] and/or Ford Canada entered into an agreement with any other alleged co-conspirator.”
Final judgment was entered with respect to Ford U.S. on January 9, 2012, and with respect to Ford Canada on January 13, 2012. Plaintiffs’ timely notice of appeal again brought the matter before this court.
II. EVIDENTIARY ISSUES
We first address plaintiffs’ challenge to two evidentiary rulings made by the trial court in connection with the summary judgment motion here at issue. Specifically, plaintiffs contend that, in making its summary judgment determination, the trial court erred in refusing to consider on hearsay grounds certain deposition testimony of Pierre Millette, general counsel for Toyota Canada, regarding a May 15, 2001, CADA meeting, as well as the minutes of that meeting that were prepared by a CADA employee. The hearsay rule is easily articulated: Hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is
Of course, when dealing with the hearsay rule, the devil is in the details of its application to the facts of a particular case. As we review the trial court‘s treatment of the alleged hearsay in this matter, we note that there is some dispute regarding our standard of review for such determinations. “[T]he weight of authority holds that an appellate court reviews a court‘s final rulings on evidentiary objections by applying an abuse of discretion standard.” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 (Carnes); see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.) However, in Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), our high court acknowledged the argument that a different rule should apply when evidentiary rulings are made in the context of a summary judgment motion: ” ‘Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.’ ” (Id. at p. 535, quoting the appellate court opinion). Ultimately, the Reid court concluded that it “need not decide generally whether a trial court‘s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (Ibid.; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4 (Nazir) [observing that the standard of review is unsettled].)
Similarly, we will not here resolve this outstanding issue, as our conclusions are sound under either theory. (See In re R.T. (2015) 232 Cal.App.4th 1284, 1301 [a court abuses its discretion when it applies an incorrect legal standard]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281 [an evidentiary ruling that ” ’ “transgresses the confines of the applicable principles of law” ’ ” is an abuse of discretion].) With respect to the consequences of our evidentiary review, however, we will follow the tenet—correctly pointed out by both parties—that the erroneous exclusion of evidence by the trial court is not grounds for reversal unless we also determine that the error was prejudicial. (
A. The Millette Deposition Testimony
During his March 2007 deposition, Pierre Millette of Toyota Canada was questioned about the May 15, 2001, CADA meeting which he attended along with representatives of Ford Canada, AIAMC, CVMA, GM Canada, Chrysler Canada, CADA, and various local dealer associations. Both Ford and Ford Canada objected on hearsay grounds to the following colloquy between counsel for plaintiffs and Millette: “Q. Did CADA indicate that they would not support dealers who were involved in regular exporting of vehicles from Canada to the United States? [¶] [Objection.] [¶] A. I can remember comments being made that everyone supported the concept of trying to keep the vehicles in Canada, but who said what, on a general basis, I can‘t help you there. [¶] [Answer read back.] [¶] And that was your understanding that there was a general consensus that the vehicles would be kept in Canada, not be exported from Canada to the United States? [¶] [Objection.] [¶] A. There was general support for the approach.”
Later in the deposition, counsel for Ford elicited this additional testimony from Millette, which it now also claims is inadmissible hearsay: “Q. Okay. Was there any agreement, at that meeting or any time, to work together to keep vehicles in Canada? [¶] A. I think that would be characterizing it as a little more than what it was. It wasn‘t an agreement. It was simply a concept that there was some consensus on from everyone at the meeting.” As Ford correctly notes, this discussion was immediately followed by an additional exchange to which no objection has been lodged. Specifically Ford‘s attorney queried: “Just to be clear in my question, did the participants in the meeting ever agree to work together to keep vehicles in Canada?” Millette responded: “No, absolutely not.”
At the summary judgment hearing on January 24, 2011, after reference by GM Canada to Millette‘s statements, the trial court responded: “I intentionally left out references to Mr. Millette. I still haven‘t sorted out in my mind to what extent, assuming Mr. Millette didn‘t testify at trial, anything that Mr. Millette said is admissible for any purpose.” However, when discussing the Millette testimony at the continued hearing on May 10, 2011, in response to Ford‘s hearsay objection, the trial court stated: “I don‘t know if any of this
Later in the hearing, plaintiffs’ counsel and the trial court had an extended discussion regarding the admissibility of the Millette testimony. According to counsel for plaintiffs, the hearsay rule was not implicated by the deposition testimony because “there are no other out-of-court statements here with the exception of Mr. Millette‘s testimony itself. There‘s no other—he is a percipient witness at a meeting. He perceives what happens at the meeting. He takes away an understanding of that. He is competent to testify about what he perceived at the meeting, that where before there wasn‘t a consensus and now there was, there was a consensus to keep the cars in Canada, to paraphrase Mr. Millette. He‘s not reporting about anything anyone else said.” Again, the trial court seemed to agree, stating: “Well, that‘s what I think—my present view of that is that he is giving his understanding of what happened and that this is not hearsay.” Nevertheless, when the trial court issued its written ruling on Ford‘s evidentiary objections in connection with its grant of summary judgment, the court sustained Ford‘s hearsay objections to both of the Millette deposition excerpts.
Initially, in considering the potential hearsay nature of the Millette statements, we note that Ford is not arguing that the challenged testimony is inadmissible hearsay because it is out-of-court deposition testimony. And, indeed, pursuant to
The more difficult question, however, is whether the trial court‘s evidentiary error was prejudicial such that it provides grounds for reversal of the court‘s grant of summary judgment in favor of Ford. (See
With respect to the admissibility of Millette‘s statements, plaintiffs argue that the testimony is admissible nonhearsay because it was based on his “personal knowledge, which he gained from having participated in the May 15, 2001 meeting (and other conspiratorial meetings) on behalf of Toyota,
Instead, we believe that the challenged deposition testimony is best understood as an opinion of a lay witness, admissible in accordance with
Our Supreme Court has recently summarized the law regarding lay opinions under section 800 as follows: ” ‘A lay witness may express an opinion
Put another way, the opinion rule for nonexperts ” ‘merely requires that witnesses express themselves at the lowest possible level of abstraction. [Citation.] Whenever feasible “concluding” should be left to the jury; however, when the details observed, even though recalled, are “too complex or too subtle” for concrete description by the witness, he may state his general impression.’ ” (Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1001 (Angelus Chevrolet).) Thus, for example, “a lay witness may express an opinion that a person was ‘drunk’ [citation], or that people engaged in a discussion were ‘angry’ [citation], or that an impact was strong enough to jar a passenger from a seat [citation], or that someone appeared to be ‘trying to break up a fight.’ [Citation.]” (Osborn, supra, 224 Cal.App.3d at p. 113.) Where a lay opinion is otherwise admissible, the witness‘s experience may affect the weight of the testimony. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1307.)
We find Justice Werdegar‘s recent opinion in Seumanu, supra, 61 Cal.4th 1293, particularly useful. In that case, a murder defendant (Ropati) presented testimony at trial from his brother (Tautai) claiming that he—Tautai—was the one who killed the victim rather than Ropati. (Id. at pp. 1303, 1306.) To counteract this testimony, the prosecution presented evidence from a third crime partner, Iuli, who had pleaded guilty to reduced charges and agreed to testify for the prosecution. (Id. at pp. 1304, 1309–1310.) In particular, Iuli described a pretrial encounter he had when he, Tautai, and Ropati were together in a holding cell. Iuli testified that Ropati “asked him and Tautai to ‘take the blame off of him and that he would be out there taking care of us’ by sending them money in prison.” (Id. at p. 1309.) Iuli rejected the proposal, but stated that Tautai “remained silent and did not appear angry.” (Ibid.) Follow-up questions indicating that Iuli thought Tautai looked like he was going to take the blame were objected to as improperly calling for an opinion. (Id. at p. 1310.) However, under these circumstances, the Seumanu court concluded that “Iuli‘s testimony regarding his perceptions was not improper
Similarly, in this case, Millette was a percipient witness to the May 15, 2001, meeting, and his opinion was based on personal knowledge gleaned from his own participation in, and observation of, that interaction, as well as his numerous previous contacts with the alleged co-conspirators. (Cf. Seumanu, supra, 61 Cal.4th at pp. 1309-1311.) Further, it is quite likely that his conclusions were based, at least in part, on observations regarding the appearance and demeanor of other meeting participants and rested on the ” ‘subtle or complex interactions’ ” among them. (DeHoyos, supra, 57 Cal.4th at pp. 130-131; see also People v. Hinton (2006) 37 Cal.4th 839, 889 [38 Cal.Rptr.3d 149, 126 P.3d 981] [lay opinion by third party that a defendant was directing another individual in a drug transaction may be proper where it is “certainly possible” that the third party‘s impression “rested on subtle or complex interactions . . . that were difficult to put in words“]; Angelus Chevrolet, supra, 115 Cal.App.3d at p. 1001.) Moreover, there is no indication in the record that Millette was able to recall any particular statements or actions by any of the meeting participants. Thus, his comments were useful to understanding what transpired at this all-important meeting because the concrete observations on which his opinion was based likely could not otherwise be conveyed. (See DeHoyos, supra, 57 Cal.4th at pp. 130-131.) Under such circumstances, he was testifying at the “lowest possible level of abstraction.” (Angelus Chevrolet, supra, 115 Cal.App.3d at p. 1001.) In sum, although Millette could not properly testify as to the actual state of mind of any of the other meeting participants, he was allowed to express his opinion that they behaved in a way consistent with reaching a consensus to restrict exports. (See DeHoyos, supra, 57 Cal.4th at pp. 130-131.) His challenged testimony is therefore properly admissible in accordance with
Having determined that the testimony at issue is admissible, we next consider the second prong of our prejudice analysis: whether consideration of that evidence, in conjunction with the other admissible evidence presented by plaintiffs, would likely have led to a different outcome. We believe that, with respect to Ford Canada‘s summary judgment motion, it is probable that it would have. We discuss this conclusion in detail below, in the context of our
B. The CADA Minutes of the May 2001 Meeting
After the May 15, 2001, meeting discussed in the Millette testimony, Melissa Clark—a CADA employee who attended the meeting—drafted minutes based on her handwritten notes. The document indicates that it is “confidential notes” from the “Export Sales Meeting” held on May 15, 2001, and lists the individuals from Ford Canada, Toyota Canada, AIAMC, CVMA, GM Canada, Chrysler Canada, CADA, and various local dealer associations who participated. According to the minutes, after a CADA representative articulated the meeting objective of “developing a strategy to solve the industry problem of export sales,” the meeting participants discussed the pros and cons of various ways they could work together to make export restraints more effective. The minutes also include a laundry list of proposed follow-up actions, such as obtaining industry-wide statistics on the size of the export problem and seeking “advice from outside counsel with respect to any Competition Act implications of any industry-wide export sales initiatives.” They end with the admonition: “PLEASE KEEP THESE NOTES CONFIDENTIAL.”
In connection with its summary judgment motion, Ford objected to the admission of the Export Sales Meeting minutes on hearsay grounds and to certain statements of CADA representatives memorialized in those minutes as multiple hearsay. In response, plaintiffs argued that the minutes were admissible under numerous exceptions to the hearsay rule, including the business record exception (
In the instant case, after Melissa Clark of CADA drafted the meeting minutes, she forwarded them to Norm Stewart—vice-president of government relations and general counsel for Ford Canada—for his review and comment. According to Stewart, he made a few comments that were not “super substantive” and sent the revised minutes back to Clark. Stewart also stated that he felt that the minutes “generally captured the sense of what went on at the meeting” and were “pretty accurate.” Indeed, the only complaint he was able to articulate was that he “didn‘t think” the minutes “totally accurately recaptured the concept that issues were put out, but not necessarily brought to closure,” an idea which, in our view, is adequately conveyed within the document. In sum, by engaging in this review and revision process, Stewart (on behalf of Ford Canada) clearly manifested his belief in the accuracy of the meeting minutes. Presumably, had he seen any errors, he would have corrected them. (Osuna, supra, 70 Cal.2d at p. 765.) Thus, the minutes were admissible against Ford Canada as an adoptive admission and were erroneously excluded by the trial court.
On appeal, Ford does not challenge plaintiffs’ characterization of the meeting minutes as adoptive admissions. Instead, it argues only that plaintiffs were not prejudiced by the exclusion of the minutes because evidence of the “content of the discussion at the CADA meeting” was “plainly before the court.” Moreover, according to Ford, the minutes do not support an inference of conspiracy because the meeting participants never adopted any of the specific actions proposed on May 15. As we discuss further below, we do not find the failure of the alleged co-conspirators to implement any of the joint actions suggested at the May 15 meeting to be particularly relevant to the existence of plaintiffs’ claimed conspiracy. Moreover, we doubt that being
Having resolved these preliminary matters, we turn now to the sufficiency of plaintiffs’ conspiracy evidence.
III. SUMMARY JUDGMENT ON EXISTENCE OF AGREEMENT
A. Analytical Framework and Standard of Review
The standards for granting summary judgment are well settled and easily delineated. A trial court must grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (
Our review of an order granting summary judgment is de novo. Under such circumstances, the trial court‘s stated reasons for granting summary judgment “are not binding on us because we review its ruling, not its rationale.” (Ram‘s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1079 [185 Cal.Rptr.3d 935].) Thus, “[t]he sole question properly before us on review of
In undertaking our analysis, we ” ‘accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ ” (Nazir, supra, 178 Cal.App.4th at p. 254.) We must, however, disregard any evidence to which objections have been made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089] (Guz);
In addition to these general tenets regarding motions for summary judgment, our Supreme Court in the seminal case of Aguilar, supra, 25 Cal.4th 826, set forth guidance specifically applicable to summary judgment motions in antitrust actions for unlawful conspiracy. (Id. at p. 843.) In Aguilar, the plaintiffs argued that nine petroleum companies had violated the Cartwright Act by “enter[ing] into an unlawful conspiracy to restrict the output of CARB [State Air Resources Board cleaner burning] gasoline and to raise its price.” (Id. at pp. 837–839.) While concluding that summary judgment was appropriate on the facts before it, the Aguilar court clarified “the law that courts must apply in ruling on motions for summary judgment, both in actions generally and specifically in antitrust actions for unlawful conspiracy.” (Id. at pp. 842-843.)
With respect to antitrust conspiracy cases in particular, the Aguilar court—after reviewing recent state and federal law on the subject15—opined: “On the defendants’ motion for summary judgment, in order to carry a burden of production to make a prima facie showing that there is a triable issue of the material fact of the existence of an unlawful conspiracy, a plaintiff, who would bear the burden of proof by a preponderance of evidence at trial, must present evidence that would allow a reasonable trier of fact to find in his favor on the unlawful-conspiracy issue by a preponderance of the evidence, that is, to find an unlawful conspiracy more likely than not. Ambiguous
When attempting to prove unlawful conspiracy, antitrust plaintiffs may rely on both direct and circumstantial evidence. ” ‘[D]irect evidence’ means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.’ ” (Biljac, supra, 218 Cal.App.3d at p. 1430, quoting
Whether direct evidence or inference, however, “if the court determines that any evidence or inference presented or drawn by the plaintiff indeed shows or implies unlawful conspiracy more likely than not than permissible competition, it must then deny the defendants’ motion for summary judgment, even in the face of contradictory evidence or inference presented or drawn by the defendants, because a reasonable trier of fact could find for the plaintiff.” (Aguilar, supra, 25 Cal.4th at pp. 856-857.) In addition, Continental Ore Co. v. Union Carbide (1962) 370 U.S. 690, 699 (Continental Ore) teaches that the plaintiffs in an antitrust action for unlawful conspiracy “should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.” Thus, ” ‘[t]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.’ ” (Ibid.)
With respect to the substantive law of conspiracy, while some sort of concerted activity is necessary for an antitrust claim, it is well settled that an
In attempting to prove unlawful conspiracy, one type of evidence antitrust plaintiffs often present—as plaintiffs do here—is evidence that the alleged co-conspirators met and shared industry information at conferences or trade association meetings. The law is clear, however, that “[i]n general, trade association activities tend to promote competition and are lawful. Gathering and compiling industry information and disseminating it among members does not offend antitrust policy, even though to do so naturally ‘tends to
Thus, for instance, in Biljac, the plaintiffs argued the existence of a conspiracy to manipulate variable interest rates on certain loans. (Biljac, supra, 218 Cal.App.3d at p. 1415.) In support of their position, the Biljac plaintiffs pointed to evidence that interest rates and interest-rate pricing were topics of discussion at trade association meetings. This, however, was deemed insufficient to prove the existence of the claimed conspiracy. (Id. at p. 1430.) Specifically, the Biljac court concluded that no inference of conspiracy could be drawn from industry discussions of this nature “without proof of agreement or concerted action to manipulate the . . . market with such information.” (Ibid.) Put another way, the Biljac plaintiffs’ proof failed because “further inferences” were required “to conclude that any agreement or consensus came out of those discussions.” (Ibid.; see Aguilar, supra, 25 Cal.4th at pp. 839-840, 862–863 [concluding that the gathering and dissemination of pricing information by the petroleum companies through an independent industry service did not imply collusive action where there was no evidence the information was misused as a basis for an unlawful conspiracy; rather, evidence suggested that individual companies used all available resources ‘to determine capacity, supply, and pricing decisions which would maximize their own individual profits’ “]; see also In re Citric Acid Litigation (9th Cir. 1999) 191 F.3d 1090, 1097–1099 [insufficient evidence that defendant was part of price-fixing conspiracy where there was no evidence illegal activities took place at trade association meetings attended by the defendant; further, gathering information about pricing and competition in the industry was a legitimate function of the trade association]; Alvord-Polk, supra, 37 F.3d at pp. 1005-1006, 1013-1014 [evidence insufficient to prove conspiracy among wall-covering manufacturers to restrict sales by discount dealers where discussion of issue and possible responses to it at conventions was an information exchange only, providing no evidence of an illegal agreement].)
Finally, as we conduct our review of these proceedings, we are also mindful that “both California and federal decisions urge caution in granting a defendant‘s motion for summary judgment in an antitrust case.” (Fisherman‘s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 321 [7 Cal.Rptr.3d 628] (Fisherman‘s Wharf).) As the United States Supreme Court
B. Sufficiency of the Conspiracy Evidence: Ford U.S.
We consider first whether the evidence submitted by plaintiffs is sufficient to raise a triable issue of material fact with respect to Ford U.S.‘s participation in the alleged conspiracy to restrict Canadian exports. Specifically, under Aguilar, we ask whether it is more likely than not—on the evidence presented—that Ford U.S. entered into an illegal agreement with any other alleged co-conspirator to restrict the export of Canadian vehicles into the United States. As a preliminary matter, we acknowledge the authority cited by Ford for the proposition that a corporation and its wholly owned subsidiary are incapable of conspiring under the antitrust laws. (See Copperweld Corp. v. Independence Tube Corp. (1984) 467 U.S. 752, 769–771 [81 L.Ed.2d 628, 104 S.Ct. 2731] (Copperweld); Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 189 [91 Cal.Rptr.2d 534].) As the United States Supreme Court explained in Copperweld: “[T]he coordinated activity of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purposes of [section] 1 of the Sherman Act. A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal ‘agreement,’ the subsidiary acts for the benefit of the parent, its sole shareholder. If a parent and a wholly owned subsidiary do ‘agree’ to a course of action, there is no sudden joining of economic resources that had previously served different interests, and there is no justification for [section] 1 scrutiny.” (Copperweld, supra, 467 U.S. at p. 771.) In fact, plaintiffs here acknowledge that they are not arguing that Ford U.S. is liable because it conspired with its subsidiary, Ford Canada. Thus, in reviewing the materials plaintiffs contend establish Ford U.S.‘s participation in the alleged conspiracy, evidence that Ford U.S.
Nevertheless, in an attempt to meet their burden under Aguilar, plaintiffs point first to a collection of materials prepared in advance of a November 2001 meeting between Ford U.S. and Ford Canada on the issue of unauthorized Canadian exports, referred to in the documents as “Canadian brokering.” The record contains three different iterations of an agenda or talking points for this anticipated “Canadian Brokering Summit,” which were prepared by Ford U.S. and make clear that the company was concerned about the Canadian export issue from a dealer relations standpoint. Specifically, Ford U.S. was receiving a substantial number of complaints from their United States dealers regarding unfair competition from Canadian exports being sold as “new” within their franchise areas. The issue was particularly contentious with respect to the Thunderbird, a “high-profile, high-margin vehicle.” In addition, Canadian brokering was problematic for Ford U.S. because it was costing them money. Indeed, according to the materials, Ford U.S. was making “as much as $5000 less on some vehicles which [were] sold in Canada and then brokered, compared to what [they] would have earned had the vehicle gone directly to a US dealer.”
Attached to the agenda was a list of suggested actions that could be taken to help solve the export problem, including the pros and cons of each. For instance, Ford U.S. suggested adding a unique character to Canadian VIN‘s to make the Canadian vehicles easier to track. Another proposal was to cancel the sale of an exported vehicle, charge back the Canadian dealer who sold it, and then re-report the sale using the appropriate United States dealer code. None of the proposed action items, however, suggested or required the involvement of any other manufacturer; nor did any of the agenda materials mentioned above discuss coordination with competitors. Indeed, plaintiffs conceded as much below, but argued that the documents show that Ford U.S. exercised “a modicum of control” and directed Ford Canada on the issue of exports. To the contrary, we view these materials as revealing only that Ford U.S. had identified what it saw as a significant problem and was looking to Ford Canada to help solve it. There is certainly no evidence that Ford Canada was acting as an authorized agent of Ford U.S. for purposes of entering into an unlawful conspiracy. (See United States v. Bestfoods (1998) 524 U.S. 51, 61 [141 L.Ed.2d 43, 118 S.Ct. 1876] (Bestfoods) [a parent corporation generally “is not liable for the acts of its subsidiaries“]; see also In re Capacitors Antitrust Litigation (N.D.Cal. 2015) 106 F.Supp.3d 1051, 1071 [quoting Bestfoods in dismissal of parent corporation from antitrust action where there were no allegations that the parent company, itself, participated in the alleged conspiracy].)
In addition, however, plaintiffs point to several e-mails they claim are evidence that Ford U.S. “was involved with and approved of communications with competitors.” The first is a December 1999 e-mail from a Ford Canada executive to Ford U.S. stating that he had been in touch with his “contact” at Honda Canada, who reported the use of export controls very similar to those used by Ford Canada. The e-mail additionally mentions that Honda Canada had been voiding warranties, but had been receiving a significant amount of “push back” from relocated Canadian consumers and United States customers
The only other conspiracy evidence identified by plaintiffs involving Ford U.S. is a March 2002 internal Ford U.S. memorandum written by Bill Glick. In that document, Bill Glick stated: “[P]lease note that Dave Kelleher [an in-house attorney for Ford U.S.] has calls into his counterparts at DCX [DaimlerChrysler U.S.] and GM to discuss potential industry-wide solutions.” Plaintiffs contended in the trial court that this evidence alone showed Ford U.S. “actively participating in the conspiracy.”
However, even assuming the calls were made—a fact disputed below—there is no indication in this statement that Ford U.S. did anything more than make initial contact with certain competitors to discuss an industry issue. Further—in contrast to the meeting evidence discussed below where numerous alleged co-conspirators accepted an invitation to meet, knowing that the sole topic of discussion would be the development of an industry-wide solution to the Canadian export problem—there is no indication here that Ford U.S.‘s competitors were even willing to talk about these issues. Under such circumstances, there is simply no evidence, or even inference, from which a reasonable jury could conclude that Ford U.S. agreed with any other alleged co-conspirator to do something together about the export problem or that it even understood the goals of the alleged conspiracy and actively participated in it. (See Biljac, supra, 218 Cal.App.3d at pp. 1425–1426; see also In re TFT-LCD (Flat Panel) Antitrust Litigation (N.D.Cal. 2008) 586 F.Supp.2d 1109, 1117 [” ‘the heart of an antitrust conspiracy is an agreement and a conscious decision by each defendant to join it’ ” (italics added)]; ibid. [finding general allegations against all corporate entities in a single corporate structure insufficient under federal antitrust law; leave to amend granted to more specifically plead how each individual corporate defendant joined the alleged conspiracy].) This single e-mail, then, is manifestly not enough to raise a triable issue of material fact as to whether Ford U.S. unlawfully conspired with its competitors in violation of the
C. Sufficiency of the Conspiracy Evidence: Ford Canada
A summary judgment determination with respect to Ford Canada, however, is less straightforward. Indeed, the record in this matter—including deposition testimony, declarations, expert opinions, interrogatories, requests for admission, and related document production—is factually complex and fills more than 26,000 pages. Because we need only identify evidence sufficient to establish the existence of one issue of material fact in order to reverse the trial court‘s grant of summary judgment in favor of Ford Canada, however, we need not engage in an exhaustive recitation of all of the potentially relevant evidence presented below.
Moreover, we note that, in ruling on Ford Canada‘s summary judgment motion, the trial court excluded vast amounts of potentially highly relevant evidence related to Ford Canada‘s alleged co-conspirators on hearsay grounds, presumably concluding that plaintiffs had failed to make the prima facie showing necessary for application of the co-conspirator exception to the hearsay rule. (See
Rather, we are left solely with the question of whether plaintiffs have carried the burden of production, as shifted onto their shoulders, to make a prima facie showing of the presence of an illegal agreement among the named defendants to curb Canadian exports. In the words of the trial court, we explore whether plaintiffs produced evidence “that tends to exclude the possibility that the defendants acted independently rather than collusively.” We believe that plaintiffs have produced such evidence in an amount sufficient to defeat Ford Canada‘s bid for summary judgment.
Preliminarily, however, we note that there is some evidence which, although stressed by one party or the other, is not particularly helpful in
For example, Quelimane involved an alleged conspiracy under the Cartwright Act among title insurers who refused to sell title insurance on real property acquired through a tax sale. (Quelimane, supra, 19 Cal.4th at p. 48.) Our Supreme Court determined that the allegations in the complaint were not subject to demurrer despite the fact that “an insurer may lawfully and individually conclude that the risks inherent in insuring a title to property conveyed by tax deed outweigh the potential benefit and decline to issue title insurance to purchasers of tax-deeded property.” (Id. at p. 49.) The high court reached this conclusion because “[r]ecognition that a single participant in the market might refuse to insure tax deed titles for a legitimate business reason does not demonstrate that there is ‘a purpose unrelated to elimination or reduction of competition’ [citation] for an agreement by a combination of insurers to refuse such policies . . . .” (Id. at pp. 49-50, italics added.)
Rather, “[a]n agreement among all title insurers in a county that none will issue policies on property conveyed by tax deed . . . implies a purpose of ensuring that none will seek what might otherwise become a sufficiently lucrative business opportunity to outweigh the risk.” (Quelimane, supra, 19 Cal.4th at p. 50, italics added.) In sum, “[w]hile refusing to sell a product to a consumer does not itself violate the Cartwright Act, when that refusal is the result of a combination, agreement, or conspiracy to make that product unavailable in a given market a prohibited restraint of trade may be found.” (Id. at p. 49.) Thus, it is the existence of an agreement (or lack thereof) that is controlling. (See also General Motors, supra, 384 U.S. at p. 140 [noting that whatever General Motors might lawfully have done individually to enforce its
Moreover, evidence of the manufacturers’ prior course of conduct becomes less meaningful if a plausible argument can be made that industry conditions changed significantly at or around the time of the alleged conspiracy. Here, evidence exists from which a reasonable jury could conclude that segregating the Canadian and American automobile markets was becoming increasingly difficult by the end of the last century. Specifically, in the 1980‘s, Canadian vehicles differed from their United States counterparts with respect to physical and mechanical attributes, emission control systems, and safety parameters. For instance, in 1983, Ford Canada projected that 70 percent of its 1984 Canadian cars and light trucks would not comply with United States exhaust regulations and could not legally be imported or operated in the United States. GM informed its dealers in 1986 that some of its Canadian vehicles “may not meet U.S. EPA requirements.” Under such circumstances, it appears that the “export problem” during this time frame was smaller and often involved particularly desirable, or “hot” cars.
In addition, while manufacturers, including Ford Canada, employed certain export restraints to address the issue, evidence presented suggests that those controls were based, at least in part, on legitimate customer satisfaction and legal concerns that no longer existed during the alleged conspiracy period. For instance, Ford Canada opined that export sales of its 1984 vehicles would present United States purchasers with “insurmountable difficulties” and could result in repercussions for the dealer, Ford Canada, and Ford U.S. In 1986, GM stated that the importation of gray market vehicles made it difficult to administer safety recalls and vehicle warranties and led to “some customer dissatisfaction.” In 1988, Honda noted that parts for warranty service on non-United States vehicles might not be readily available in the United States.
However, as Ford Canada itself recognized, by 1999 the gray market export of its vehicles “seemed to be spiking up fairly significantly.” At the same time, the harmonization of the Canadian and United States markets occurred and a favorable exchange rate for arbitrage was available. As a result, for the first time, automobile manufacturers faced the possibility of large numbers of essentially fungible, yet less expensive, cars crossing the border from Canada to the United States.19 No longer primarily an issue of
In fact, the evidence shows that this very thing happened to Ford Canada immediately prior to the alleged conspiracy period. Specifically, Ford Canada was approached in 1999 by an alleged rental car dealer seeking to buy 1,300 automobiles. Suspicious that the company was actually buying the vehicles for export, Ford Canada declined the transaction. However—as reported to Ford U.S. by two different Ford Canada executives—GM Canada and Chrysler Canada subsequently agreed to split the sale of the 1,300 automobiles “despite the export ‘compromise.’ ” Arguably, these statements indicating the existence of an “export compromise” could be viewed as evidence that some type of conspiracy involving exports was in existence as early as 1999.20 At a minimum, however, the evidence of this aborted rental car transaction suggests that Ford Canada‘s adherence to its export policies cost it millions of dollars in profits and significant market share because its vehicles were viewed as interchangeable with the vehicles of other manufacturers for gray market purposes. Indeed, Ford Canada acknowledged that it would “feel the share impact.” Further, not only did Ford lose money on the initial sale of the vehicles in Canada, but the exported cars became cheaper, intra-brand competition for Ford in the United States. Construing all of this evidence in the light most favorable to plaintiffs, a plausible inference exists that—whatever Ford Canada‘s previous policies or “compromises” regarding export sales—a substantial, and seemingly different, problem was emerging as early as 1999 that may have demanded a new response.
In arguing against the existence of an illegal conspiracy, Ford also continually stresses that no agreement to take joint action came out of any of the allegedly conspiratorial meetings. However, the absence of any post-agreement indication of specific joint activity among the manufacturers is not fatal to plaintiffs’ conspiracy claim. Ford simply ignores the fact that the posited conspiracy was not necessarily to work together on joint initiatives, but rather, as plaintiffs described it: “to provide assurances that each defendant would enforce anti-export policies.” That is, it was an agreement that no one would break ranks and take for themselves the significant profits available in the export market, as had happened in 1999 to the financial detriment of Ford Canada. Judge Hornby concluded as much in the federal
Finally, we agree with the trial court that evidence indicating that certain of the defendant manufacturers “stepped up” their anti-export policies after the start of the alleged conspiracy period is not necessarily evidence of an agreement to do so. The evidence that plaintiffs themselves present shows that manufacturers were facing an entirely new economic climate in which an unprecedented number of essentially fungible lower-priced Canadian vehicles were suddenly available for profitable export to the United States. Under such circumstances, it seems plausible, that—even in the absence of a conspiracy—manufacturers might decide unilaterally to boost their efforts to combat this extremely costly problem. Thus, in this case, without other evidence tending to exclude the possibility of unilateral behavior, documentation of increased action to combat exports is not particularly probative of unlawful conspiracy.
Having described the evidence and arguments we find unconvincing, we turn now to a discussion of the evidence that could be interpreted as tending to exclude unilateral action, thereby making unlawful conspiracy more likely than not.21
1. Meeting Evidence
First, plaintiffs have produced significant evidence of telephone and in-person meetings among the manufacturers, aided by CADA, the express purpose of which was to come up with a joint approach to stamping out the
On October 25, 2000, Norm Stewart, general counsel for Ford Canada, sent a message via facsimile to the CVMA indicating that he wanted the CVMA to “initiate a conference call” with representatives of GM Canada, Chrysler Canada, Honda Canada, and Toyota Canada “as soon as possible, to discuss a proposed meeting with CADA . . . aimed at developing an industry-wide approach to ending unauthorized export sales” (italics added). On October 27, 2000, Stewart participated in a conference call with representatives of other automobile manufacturers, including Chrysler Canada (Grant), GM Canada (McDonald), Honda Canada (Miller), and Toyota Canada (Millette). According to Stewart, who admitted that the call was organized at his request, the purpose of the call was to “talk about export issues.” Stewart‘s deposition testimony further reveals that the result of the call was direction to Dave Adams at CVMA “to get back to CADA to indicate that we would be prepared to meet.”
Ultimately, an industry meeting was scheduled at CADA‘s offices on May 15, 2001, to discuss the export sales problem. Representatives of Ford Canada (Stewart), GM Canada (Risebrough and McClean), Chrysler Canada (Rose), Toyota Canada (Millette), the CVMA (Adams), and the AIAMC (Biggs) attended a “pre-meeting” on May 15 to discuss the issues that they anticipated would be raised at this CADA-sponsored event. These same individuals—along with additional representatives of the AIAMC (Hodges and Watkins) and Chrysler Canada (LeBlanc), representatives from CADA (Little, Gauthier, Ryan, Riccoboni, and Clark) and representatives of certain regional dealer associations—then attended the actual meeting in CADA‘s offices, which reportedly lasted from lunchtime until 4:00 or 5:00 o‘clock.
In the end, as mentioned previously, no particular solution was adopted. Rather, a list of proposed actions was generated, including (1) determining the size of the problem through collection of statistical data from all manufacturers; (2) developing an employee education program for the dealers on the export issue; (3) tax reform to eliminate certain rebates for gray market exports; (4) profiling the importance of the two-tiered distribution system to Canada, as equalization of pricing in Canada and the United States could lead to fewer sales in Canada, lost jobs, and older cars on the road; (5) seeking advice from outside counsel “with respect to any Competition Act implications of any industry-wide export sales initiatives“; (6) surveying dealers with respect to their best practices in the prevention of exports; (7) checking with NADA to assess the export situation from the United States perspective; and (8) investigating the possible future development of a shared database. As stated above, the minutes ended with the admonition: “PLEASE KEEP THESE NOTES CONFIDENTIAL.”
Citing Biljac and the trade association meeting cases, Ford argues that discussing an industry problem as a group is not evidence of an illegal agreement to restrain trade and, in fact, is actually condoned by the Cartwright Act. (See Biljac, supra, 218 Cal.App.3d at p. 1430; see also Aguilar, supra, 25 Cal.4th at pp. 839-840, 862–863; In re Citric Acid Litigation, supra, 191 F.3d at pp. 1097-1099; Alvord-Polk, supra, 37 F.3d at pp. 1005-1006, 1013-1014.) We agree that, given the evidence of changed market forces during the time frame of the alleged conspiracy—including the harmonization
Moreover, our conclusion is not altered by Ford‘s additional claim that agreeing to meet with competitors to discuss the possibility of an industry-wide solution does not make it more likely than not that the individual actions subsequently taken by the manufacturers to restrict exports were the result of an illegal agreement, especially where the evidence shows that no industry-wide solution was ever implemented. As discussed above, we do not believe the fact that no common response to the export problem was ever adopted by the manufacturers precludes a finding of conspiracy. As for the argument that agreeing to meet is different than agreeing to conspire, that is, of course, true. However, agreeing to meet extensively on the sole topic of how best to restrict exports as an industry certainly raises a plausible inference that the alleged co-conspirators had all previously agreed to hold the line together on export sales, and were thus willing to explore together in detail the most effective means of implementing that anticompetitive pact. Thus, the meeting evidence might be sufficient, in and of itself, to defeat Ford Canada‘s summary judgment motion. Ultimately, however, we need not
2. Possible Direct Evidence of Agreement
For instance, as discussed at length above, Pierre Millette‘s conclusion after participating in the May 15, 2001, CADA meeting—as well as a number of previous meetings and calls—was that there was “general support for the approach” of trying to keep Canadian vehicles in Canada. Moreover, when asked if there was an agreement among the manufacturers “to work together to keep vehicles in Canada,” Millette responded that it was not an “agreement,” but was instead “simply a concept that there was some consensus on from everyone at the meeting.” We believe that this evidence—that one of the key alleged co-conspirators thought that there was a “consensus” among all of the meeting participants to work together to keep Canadian vehicles from crossing the border—could be viewed as highly probative of conspiracy. Indeed, based on these comments, which the trial court expressly refused to consider, a reasonable juror could conclude that Ford Canada and the other alleged co-conspirators ” ’ “had a conscious commitment to a common scheme designed to achieve an unlawful objective” ’ ” (Biljac, supra, 218 Cal.App.3d at p. 1425.) In other words, the trier of fact could find that each member of the group had committed to do its part to restrain Canadian new vehicle exports to the United States, thereby cutting off a burgeoning discount channel of distribution. (Cf. General Motors, supra, 384 U.S. at p. 144 [“General Motors sought to elicit from all the dealers agreements, substantially interrelated and interdependent, that none of them would do business with the discounters. These agreements were hammered out in meetings . . . and in telephone conversations . . . . It was acknowledged from the beginning that substantial unanimity would be essential if the agreements were to be forthcoming“].)
Of course, we recognize that Mr. Millette‘s comments are subject to interpretation and are at least potentially contrary to other of his statements contained in the record. Indeed, for its part, Ford argues that the Millette testimony is not direct evidence of conspiracy proving, at most, only that all of the manufacturers viewed Canadian exports as a problem. However, as our Supreme Court recently reiterated: ” ‘the task of disambiguating ambiguous utterances is for trial, not for summary judgment.’ ” (Reid, supra, 50 Cal.4th at p. 541; see also ibid. [“[d]etermining the weight of . . . ambiguous remarks is a role reserved for the jury“].) Put another way, in ruling on a motion for summary judgment, “the court may not weigh the plaintiff‘s
For our purposes, then, it is sufficient to conclude that if presented with the Millette testimony—especially in the context of the meeting evidence discussed above—a reasonable juror could find an unlawful conspiracy to restrict Canadian exports more likely than not. (See Aguilar, supra, 25 Cal.4th at p. 852.) Further, we need not determine whether the deposition testimony is best characterized as direct or circumstantial evidence of the alleged conspiracy because we conclude that, regardless, it is evidence that tends to exclude the possibility that the alleged co-conspirators acted independently rather than collusively. (See ibid.) Thus, it is sufficient to support reversal of the trial court‘s summary judgment decision in favor of Ford Canada.24
3. Evidence of Actions Taken to Further Alleged Conspiracy
In addition to the materials detailed above, several other categories of evidence presented by the plaintiffs—while perhaps not sufficient in and of themselves to send the issue of conspiracy to a jury—do tend to lend further support to the plaintiff‘s theory of the case. For instance, the uncontested evidence shows that all of the manufacturers continued to enforce export restrictions in the wake of the May 15, 2001, CADA meeting, with many “stepping up” their export efforts. In June 2001, Ford Canada generated a list of export sales policy actions, including “[o]ngoing dialogue with industry contacts to share ‘best practices.’ ” Thereafter, in August 2001, Ford Canada requested that its regional managers contact dealers, informing them that continued export sales would “result in restricted allocations of high demand products for Canadian Dealers and increased pressure to increase prices.” Further, they were to indicate that such sales could lead to termination, chargebacks, and suspension from dealer incentive programs. Finally, the managers were instructed to assure the dealers that “[t]he company will share
Other manufacturers followed suit, each relying on the export restrictions they found most effective for their particular situation. Chrysler Canada, for instance, issued chargebacks, maintained a blacklist of known or suspected exporters, and supplied its dealers with a list of due diligence “checkpoints” to be employed to uncover exporters. It began refusing to honor warranties beginning in 2002. GM Canada issued chargebacks; enhanced its best practices list; and strengthened its Franchise Agreement to allow for penalties on, and termination of, exporting dealers. Toyota Canada had an online blacklist of suspected exporters, issued chargebacks, and monitored the availability of replacement speedometers. Honda Canada stopped honoring warranties in 1998 for gray market vehicles. During the period of the alleged conspiracy, it maintained a due diligence checklist, issued chargebacks, and reduced vehicle allocations to exporting dealers. Thus, the manufacturers consistently enforced export restraints during the time frame of the alleged conspiracy, and there is no evidence in the record that any manufacturer broke ranks during this period and decided to collect the easy profits available to it from allowing gray market sales. Although insufficient standing on its own, such parallel conduct can be probative evidence of unlawful collusion. (Apex Oil Co. v. DiMauro (2d Cir. 1987) 822 F.2d 246, 253.)
An agreement among competitors, however, ” ‘may be inferred on the basis of conscious parallelism, when such interdependent conduct is accompanied by circumstantial evidence and plus factors.’ ” (Mayor and Council of Baltimore v. Citigroup (2d Cir. 2013) 709 F.3d 129, 136 (Citigroup).) These plus factors include things such as: “a common motive to conspire, evidence that shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, and evidence of a high level of interfirm communications.” (Ibid.) Here, the alleged co-conspirators continued to meet and otherwise communicate regarding the export issue during the alleged conspiracy period. An additional conference call on export sales was held on May 28, 2001. Representatives of Ford Canada met with CADA in February 2002 to discuss exports. Toyota Canada met with CADA in March 2002 with respect to similar concerns. Two other CADA-sponsored industry meetings on the topic of export sales were held in April and November 2002. Thus, there was a high level of interfirm communication.
In fact, such information sharing, in and of itself, was found sufficient to defeat summary judgment in Coca-Cola, supra, 2000 U.S.Dist. Lexis 17089, at p. *28. In that case, the plaintiff alleged that the Coca-Cola Company and its horizontal competitors, including Pepsi Cola and Cadbury Schweppes, were engaged in a conspiracy to exchange information about exporters and drive them out of business. (Id. at p. *28.) Although there was no direct evidence of an express conspiracy to boycott exporters, there was circumstantial evidence, including (1) documentation that Coca-Cola and Pepsi exchanged information regarding exporters; (2) a request from certain distributors that Coca-Cola handle exports for Canada Dry in the same way it handled Coca-Cola exports; (3) a memorandum indicating that Coca-Cola had provided Canada Dry with the names of three exporters; and (4) a report by Cadbury Beverages which included information on Coca-Cola exports. (Id. at pp. *29-*30.) Rejecting Coca-Cola‘s argument that this information sharing revealed only ” ‘isolated contacts’ that occurred after each manufacturer independently adopted its own [anti-export] program in the pursuit of each licensors’ independent economic interest,” the trial court concluded that summary judgment was inappropriate because “evidence of this concerted activity is more consistent with an impermissible purpose, an agreement to jointly combat the [exporting] competitors.” (Id. at p. *31.)
In sum, given the particular circumstances of this case, the parallel conduct engaged in by the manufactures during the alleged conspiracy period provides additional support for the plaintiffs’ claimed conspiracy.
4. Evidence of Economic Motive to Conspire
Finally, there is motive evidence in the record, suggesting that the alleged co-conspirators had no economic incentive to maintain or increase export
The plaintiffs argued below that such evidence made unlawful conspiracy “more likely” than permissible competition and also showed the pretextual nature of the manufacturers’ asserted justifications for their export restraints. The trial court, however, was not convinced that this evidence had any probative value. Indeed, during the hearings on the various summary judgment motions before it, the trial court at one point stated: “I am mindful that the claimed conspiracy is in the economic self-interest of each of the defendants, perhaps. That alone doesn‘t do anything for you. That‘s not evidence, that‘s simply a perspective. And the fact that it would be in somebody‘s self-interest to conspire doesn‘t mean that they did.”
In its order granting summary judgment for Ford, the court acknowledged that the plaintiffs had presented “evidence of motive and economic interest to conspire” among the alleged co-conspirators. Citing Aguilar, however, the trial court concluded that “[t]his evidence alone does not satisfy plaintiffs’ burden of production.” (See Aguilar, supra, 25 Cal.4th at p. 864 [“We recognize that Aguilar did indeed present evidence that the petroleum companies may have
Here, if believed (and again we acknowledge that its validity is the subject of intense debate), Hall‘s economic analysis posits that the auto manufacturers would not have continued to restrict exports during the alleged conspiracy period in the absence of an agreement that none of them would break ranks and reap the profits available in the export market. If true, this “tends to exclude” the possibility that the alleged conspirators acted independently rather than collusively. (See Aguilar, supra, 25 Cal.4th at p. 852.) Moreover, this evidence of potential economic motive to conspire does not exist in a vacuum. Rather, it merely further supports the meeting evidence discussed above, Millette‘s statements regarding the existence of a “consensus” to keep Canadian cars in Canada, and the manufacturers’ parallel conduct in restricting exports.
In the end, this is, perhaps, as the trial court acknowledged, “not an easy case.” Nevertheless, we are mindful of Justice Mosk‘s admonition in Aguilar with respect to summary judgment motions in antitrust proceedings that “although such motions should be denied when they should, they must be granted when they must.” (Aguilar, supra, 25 Cal.4th at pp. 847, 852.) Viewing all of the evidence as a whole and in the light most favorable to the plaintiffs, we conclude that summary judgment must be denied in this case because it should. Plaintiffs have produced sufficient evidence to create a genuine issue of material fact as to whether Ford Canada and its competitors entered into an illegal conspiracy to restrict the export of lower priced Canadian vehicles to the United States.
IV. DISPOSITION
The judgment of the trial court with respect to Ford U.S. is affirmed. The trial court‘s summary judgment in favor of Ford Canada, however, is reversed
Ruvolo, P. J., and Rivera, J., concurred.
The petition of respondent Ford Motor Company for review by the Supreme Court was denied October 19, 2016, S236604.