2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-29-2004 

# I n Re F l at Gl a s s

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-2920

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### 1 PRECEDENTIAL

UNITED S TATES COUR T OF APPEALS FO R THE THIRD CIRC UIT

No. 03-2920

IN RE FLAT GLASS ANTITRU ST LITI GATION (MDL No. 1200)

BRIAN S. NELS ON, d/b/a Jam estown Glass Service ; MEL’S A U TO GLASS, INC.; A. WAXMAN

& CO., on beha

lf of its elf, and all others similarly situat ed; DESIGNER WINDOWS, INC., on behalf of itself and all oth ers similarly situate d ; MOSES MOORE A LL G LAS S ASPECTS, INC., on b ehalf o f itself and all others si milarly situated; AAA GLASS, INC. , on behalf of it self and a ll othe r s similarly situated
, d/b/a The Glass D octor; THE LURIE COM PANIES, INC. ; VSTB ENTERPRISE S, IN C., d/b/a Perf ecto Aut o Glass & U pholstery and its successors; PORT CITY GLASS & M IRR OR , IN C.,

on its own behalf and on beha lf of a ll others si mi larl y si tu at ed ; J OHN HEAL Y , JR .; COUN TY AU TO GLA SS , INC., on beha lf of themsel ves and all others s i m i larly si t u a t e d ; GE RAR D J

. CLABBE RS, on behalf of hi mself and all ot h ers si mil arl y s ituat ed; KIRSCHNER CORPORA TI ON, INC ., t/a Berwyn Glass C om pa ny, on b ehalf of itself and all others similarly situated; HARTUNG AGALITE GLASS CO ., d/b/a Ha rtung Gla ss Industries; AL L ST AR GL AS S, IN C ., on beha lf of itself and all others sim ilarl y sit uated; SU PE RI OR WI NDSHIEL D INSTALLATI O N, INC., on behal f of itself and a ll oth ers si milarl y si tuate d; JOV I, INC., on beha lf of itse lf and all others sim i larl y si tuate d, t/a Easton Area G lass; ENGINEERE D GLA SS WALLS, IN C., on behalf of

i tself and all others similarly si tu at ed ; B AI LES GL AS S C O.; INTERSTATE GLASS DIST RIB UT ORS , IN C. , on beh alf of itself and a ll others similarly s ituat ed; ORLANDO AUTO TOP, IN C.; MAYFLOW ER SA LE S C O., IN C., on behalf of i tsel f an d all others simil ar ly situated; CA RD INA L IG ; RE ED ’S BODY SHOP, INC.; BELETZ BROTHERS GL AS S C OM PA NY , IN C.; COMPLAST, IN C.; WESTE RN STAT E S GLASS, on beh alf of itself and a ll others simila rly situate d; GRIMES A UTO GLASS, IN C. ; D&S GLASS SERVICES, INC .; GEORGE BROW N & SO N GLA SS WOR KS, INC .; THERMAL CH EK , IN C.; MOBILE GL AS S, IN C., indivi dually and

as a repres entative of

a c la ss ; J ELD- WEN, IN C., an Oregon Corporati on; JEL D-WEN CANADA LI MITED , a Cana dia n corporation; JEL D- WEN ARI ZON A, IN C., an Ari zonacorpor at ion ; AVANTI IN DUSTRIES, INC ., an Ar izon a corpo rati on; LA KEWOOD CITY GLASS , INC . ; CAROLI N A MIRROR ; ALLSTATE INS URANCE COMP ANY; ALLST ATE I NDEMNIT Y COMPANY

v.

### 2

PI LKI NGTON PLC; PI LKINGTO N LI BBEY -OWENS- FORD CO ., IN C.; AFG INDUS TRI ES, INC .; GUARDI AN INDUSTRIES CORPOR ATION; PPG INDUSTRIES, IN C.; LIBBEY-OWEN SFORD CO ., INC.; AS AH I GLAS S C O., L T D.; FORD M OTOR CO. ; PI LKI NG TON HOL DINGS ; AS AH I GL AS S A M ER ICA , IN C.

UNITED STA TES OF AM ER IC A (Inte rve nor in D .C.) (D.C. No. 97-mc- 00550)

Class Pla inti ffs and Grimes Auto G lass,

Ap pellan ts

On Appeal from the United St ates Distri ct Court f

or the We stern D istrict of P enns ylvania (Dist. Court No. 97-mc-00550) Dis trict Ju dge s: H on. D one tta W

. Ambrose and Hon. Donald E. Ziegl er

Argued: June 22, 2004

Before: NYGA ARD , MCK EE and CH ER TO FF , Circuit

Judges

(Fil ed: Septe mber 29, 2004)

Samuel Issa charoff, Esq. 435 West 116 Street New Y ork, NY 10027

Daniel E. Baci ne, Esq. Barrack, Rodos & Bacine 2001 Market Stree t Philadelphia, PA 19103
Eugene Spector, Esq. Spector Roseman & Kodroff 1818 Market Stree t Philadelphia, PA 19103
Robert N. Kaplan, Esq. (Argued) Richard J. Kilshei mer, Esq. Kaplan Fox & Kilsheimer 805 Third Avenue New Y ork, NY 10022

Michael D. Hausfeld, Esq. Co hen M ilstein H ausf eld & Toll 11 00 Ne w Yo r k A ve nu e, N. W. Washington, D.C. 20005

Robert Skirnick, Esq. Meredith Cohen Greenfogel & Skirnick One LibertyPlaza, 35 th Floor New Y ork, NY 10006

Co unse l for Ap pellan ts

Paul M. Dodyk, Esq. (Argued) Peter T. Barbur, Esq. Lawrence E. Buterman, Esq. Kelly A. Rocco, Esq. Crava th, Swain e & M oore Worldwide Plaza 825 Eighth Avenue New Y ork, NY 10019

David J. Armstrong, Esq.

### 3

Dick ie, M cCa mey & Ch ilcote Two PPG Place Suite 400 Pitt sburgh, PA 15222

Couns elfor

Appel le e PPG Industr ies, Inc.

J. Micha el Mu rray, Esq. (Argued ) Berkman, Gordon, Murray& DeV an 55 Public Squar e, Suite 2121 Cleveland, OH 44113-1949
Counsel for

Appellee Edward Bryant

Michael S. Sommer, Esq. Mc Derm ott, Will & E mery 50 Rockefelle r Plaza New Y ork, NY 10020

Elli ot Sil verman, Esq. (Argued) Mc Derm ott, Will & E mery 18191 Von Karman A venue Irvi ne, CA 92612
Counsel for

Appellee Ron ald W . Sked dle



### OPINION OF THE COURT CHERTOFF, Circuit Judge

.
This case a

ddresse s the recurring question of wh at qu an ti ty a nd quality of evidence sufficesto crea

te a genuine issue of materi al fact as to one particular elem ent of aclaim under Sect

ion 1 of the ShermanAct: wheth er a

defendant entered into an unlawful agreement. Ap pellants contend that appellee PPG

Industries, Inc. (“PPG”) conspired w ith its competitors to fix theprices of fla t glass and autom otive replac ement

glass in the ear

ly 1990s. The D istrict Court grant

ed PPG’s m

otionfo r summary jud gme nt on the ground that therewas insuff ic ient

proof of an agreement. We will reverse in part, affirm in p art, and rema

nd for additional proceeding s.

I. Background

A. The Flat Gl ass and Aut omotive Replacement Glas s Industries

PPG manufa c tures sheets of glass through a method call ed the “fl oat pro ces s.” Molten glass is p our ed ove r a bath of higher- density l iquid, such as molten tin. As the glas s float s on top of the bath, it i s poli shed under cont roll ed temperat ures. Finall y, the glass i s fed into

an “anneali ng ov en” wh ere it gra dually cools and har den s. See In re Flat Glass AntitrustLiti gation , 19 1 F.R.D. 472, 476 n.7 (W.D. Pa . 1999 ). The gla ss that PPG produces through t

he float proce ss— in

### 4

vari ous size s, thic kne sses , and tints, see Supp. Ap p. 14 n .16; App. 634—is called “fla t glas s.”

PPG and a handful of oth er firms— Libbey-O wen s-F o rd Compan y (“L OF ,” a subsidiary of t he British glass producer Pi lki ngt on LLC ); AF G Industries, In c. ( “A FG ,” a su bs id iar y o f the Japanese glass pro ducer Asa hi Glass C o.); 1 Guardian Industries ( “Guardian”) ; and Ford Mo tor Co. (“Fo rd”)— manu facture

we ll over ninet

y per cent of the flat glass

so l d in the United State s. I n 1995, for example, PPG acco unte d fo r appr oxim ately 28% of d o mestic flat gl ass shipments, LOF and AFG each accounted for 19%, and Gu ardian a nd Ford each accounted for

15%. Supp. App. 20. 2

Flatglass pr oduce d through t he float process maybe s old “as is,” in which

ca s e it i s used pri marily in const ructi on. Supp. Ap p. 16 . Alt ern ative ly, m any differe nt products m a y be “fabricated” from flat glass by subje cting it to a variety of p r ocesses. A substanti al amount of fl at glass, for ex amp le, is fabricated for use in automobiles. Flat glass may be molded and combined w ith other par ts t o produce windshields, for example, or side and rear window s. Supp. App. 19. Som e produc ts—called origi nal equ ipmen t manufacturer

products (“OEM ” glass produc ts)—a re fabric ated f or sale to vehic le manufacturer s for use i n new vehicles. Other pr odu cts— calle d auto motive replac eme nt gla s s produc ts— are fabricated for sale and use

as automoti ve repla cement part s. Supp. App. 25. These are two separate markets. 3

1 

### Asahialso owns a company called Glaverbel, which was asso ciated with AFG, and a Canadi an- b ased com pany called Glaverbec.

2 A company named Cardi nal Glass Industries (“Cardina l”) ac count ed for appr oxim ately 3% o f domestic flat glass

s ales i n 19 95. C ardina l, whic h is no t a defendantin this suit , did not produce fl at glass until1992, when it purchased a f lat gl as s man ufac turing p lant tha t AF G b uilt for it. Before that t

ime, Cardi nal fabricat ed prod ucts from flat

glass it pur chased from PP G a nd o ther s. 3 

### The parties f ail to adequately

ex pl ain the r

ela tionship between OEM glass parts a

nd automot

ive repl acem

ent parts , which

plai ntiff

s describe as “identical in com

position.” Plaintiffs’ Br. 4. We gather from the rec ord thatthey differin two impo rtant respects. First, generally (but

not alwa y s) onl y one OEM glass producer exists for any particular product. Thus PPGalone might produce a parti cular windshield that a c a r
m anuf acturer uses in a particular

model

car. In contrast, mult i ple manufacturers typically produce any one type of automot iver epla cem ent pa rt. So PPG, G uard ian, and LOF might produce the automot ivereplacement part that w ould replacethe OEM product that only PPG produced and sold to the car manufacturer. Second, OEM glass pr

oducts ar e sold to a partic u lar car manufactur

er, wher eas the

### 5

The automoti ve repla ce me nt glass

ma rket has a four- tier

verti cal st

ructur e. First, manufacturer s—the handful of fi rms mentioned above— produce flat glass. Second, vario us c omp a nies fabricat e the flat glass i nto diff

erent t ypes of automoti ve
re placement

glass pr oducts. The maj o r United States f abricators of automoti ve replac ement glass p rodu cts du rin g t he class period w ere PPG, LOF, Ford, Guardi an, Saf elite, Vir acon , Premier/Hordis, and C hry sler . App. 585. Thus a number of firms, such as PPG , both

manu facture flat glass and f abrica te it into automotive replacement glass products. 4

Third, the fa bricato r s sell the p arts by the “truck load” to w hole sal e distri butors. The w holesale distributors then sellthe aut omotive re placement glass pr odu cts in less th an truc kload quan titi e s to the reta il installers th at sell the pro ducts directly to car owners.

PPG op er ate s a t ev er y le vel of the automoti ve replac ement glass market; that is, PPG is “ver tically integra te d .” In additi on to manufacturing flat glas s and fabric a ting automotive replacement glass p roducts, PP G runs a wholesal e dist ri bution operati on that s ells less t han truckl oad quan tities to retail inst alle rs. Yet PPG also se lls its prod ucts to its downstream competitors. It se lls flat glass to autom otiv e repla cem ent glas s fabricators, and it s ells truc kload q uantit ies of automoti ve repla cement glass prod ucts to w hol esa le dis tribu tors.

B. The Alleged Conspir acies

In 1993, LO F fired two of its executi ves

— Ro nald Ske ddle (LOF’ s Preside nt and Chief Execut ive Off icer) and Edw ard B ryant (LO F’s Executi ve Vice Presid e nt, t

he company’ s secondhighest ranking offi cer)—and a grand jury indicte d them for conspi racy , mail and wire fraud, and mon ey laundering. A jury

even tually acqu it te d them of the charges, but in the mean time Skeddl e and Brya nt alle ged that duri ng th e e ar ly 199 0s LOF had cons pired w ith its com petitors to fix the pri ce of

the glass pro duc ts it so ld. See In re Fl at Glass Antit

rust Li tigat

ion , 288 F.3d 83 , 86 (3d C ir. 2002).

Ske ddle and Bryant ’s al legations spurredplaintif fs t o file se veral p rivate antitrust lawsuit s aga inst LO F an d its comp etitors (PPG, AFG, Ford, and Gua rdian), an d the Judi cial Panel on Multidis tri ct Litigatio n eve ntu a ll y consoli dated and trans ferredthe actions to the Western D ist

rict of Pennsy lvania . After the Distri ct Court c erti fied t wo subclasses of p laint iffs , see In re Flat Glass Antitrust Liti gation , 191 F.R.D. 472, 475 (W.D. Pa. 

### corres ponding ide nti cal automotiv e replac ement

glass products are

sol d to multiple wholesalers an d retail installers.

4 

### Automotive rep lacement glass fabricato rs produced approximatel y 10,000 different automotive replac em ent glass produc ts. No one fabr icato r produced all 10,000. PPG produced approximately

6,000. App. 585.

### 6

1999), plaintiff s reach ed se ttlemen ts with all de fen dan ts ex cep t PP G.

Plaintiffs allege th a t PPG and its competit or s co nspire d to “fi x, rai se, and main tain” the pri ces of flat glas s and

au tomoti ve replac ement glas s. The t w o
a llege d conspir acies c orrespond wit h t h e two subc lass es that the D istrict Court certi fied. See In re Fl at Glass Ant it rust L iti gation , 191 F.R .D. a t 47 5. O n e subclass c ons ist s of indi viduals and entit ies that purchased fl at glass or produc ts f abricated from fl at gla ss from PPG, LOF, Guardian, For d, or AFG. The othersubclas s consis ts of i nd ivid uals and entit ies that purc hased automot iv e replac ement glass pr o ducts fr om any of tho se sa me firm s. Id.

Plaintiffs’ alle gations regardi ng price- fixing in the mark et for flat glass are relatively stra ightforward. Severaltimes during the c las s per iod, PPG and the other flat g la ss producers raised thei r “list prices” for flat

glass by the sam e amount and within very cl ose ti me fram es. W ithin

a twel ve-d ay period in t he summer of 1991, for example, PPG and it s comp etitors all r aised t heir l ist prices for flat gl as s by th e s ame amounts. 5 Plaintiffs sim ply cont end that PPG and it s comp et itors agreed to raise thei r prices, rather than doing s o independently and wit h no con certe d co ord inati on.

5 

### The Distr

ict Court catal ogu e d these price increases as f ollows:
Julyof 1991, all defenda nts raised their prices within da ys of each othe

r by 7.5- 9%, with an eff ective date of July 29 or Aug u st 1, 1991; Septem

ber of 1992, all defendan ts raised their prices within day s of each other by 5-9% with an effective date of October 1

or O ctober 12; May

of 1993, defenda nts rais ed t heirpr ic es wi th in da ys o f

ea c h other by 5.5% with an effective date of June

7 or 9; O ctober of 1993 , defenda nts r aised t

he i r prices within days o f e ach other by 6.5% with an effective date of

October 30

or November 1, 1 993; Ap ril of 1994 all d efendan ts raised their pr ices by 5-9% with an ef

f ective date of May 1 or 2; August of 1994, all defenda nts r aised their pric e s by 5-8% with an effective date of September 19 , 1994; March of 1995, all defendant s raised their prices by 6% with an effective date of April 3 or 11.
App. 16 n.4 (intern al ci tations to District Court record omitted).

### 7

Plaintiffs’ alle gations regardi ng price- fixing in the market for autom ot ive

r eplacement

glass a re mo re com plicate d

. According to plai ntiff

s, PPG and other automoti ve rep l aceme nt glass fabricators used a me ch an is m, ca ll ed th e “ NAGS Ca lcula tor,” to fi x pr ices atsupracom petit ive le vels

.
NAGS, which stands for “Nati onal Au to Glass Specifications,” i s a business that produ ced a catal ogue call ed the “NA GS Calculat or.” T he NAG S Calculat or suppli ed an identi fyi ng number for each type of automoti ve repla cement gl ass product and pr ovided a recommended price f

o r a n installe r to charge a c arown erfo r t he pa rt . N AGS

came up with it s recommended pri ce f or any parti cular automoti ve repla cem en t glass produc t b y t aking a truckload quan tity pri ce o f that product and multi ply ing it by

a num ber (a “multi plier ”) spec ific to th at

pr odu ct . G en er al ly , N AGS

wo uld use th e truck load q uantity price f or the OEM glass product t hat the automoti ve replac ement glass was intended to replac e.
According to plai ntiff

s, PPG and other aut omotive replac ement glas s
manu facturers knew the multi plier s t hat NAGS used to devi se i ts re commended pr i ces. Thus PPG could, and pla inti ffs alle ge did, work backwards from the recommende d p rice to determi ne the truckl oad price th at NA GS used in its calcul ation. “If

the tr uckload pri ce used by NAGS was d if

fer ent fr om i ts own truckl oad pri ce, ” pla intiffs argue , “PPG then adjus ted its truc kload price to match the truckl oad price used to cr eate t he NAG S price, as did the ot her [automoti ve replac ement glass] m anufacturers. ” Pl a intiffs’ Br. 33. Thus pl ainti ffs contend that PPG and its c om petito r s “had an underst anding and acted in concert” to use the N AGS Calc ulator to “align their truckl oad price l ist s and stab ili ze pric ing, and as a benchmark for pricing of [automoti ve replacement glass] at lessthan-t ruckloadquantit

ies. ” Plaint

iffs ’ Br. 30.

C. The Present Appeal

The Distri ct Cou rt granted PP G’s motions for sum mary judgmenton both of plaintiffs’ price-fixing claim s. Before doing so, the Court ci rcumscri bed the

ev id ence it cons idered when deci ding PPG ’s summ ary judgment motion s through a seri es of in limine motions. The Cou rt refus ed to order Skeddl e and Brya nt to testify desp ite their inv ocatio n of their Fifth Amendment privileges, for example, and it al so excluded manyof Sk eddle’s han dwritt en notes that pla intiffs a rgue te n d to impli cate PPG in a pr ice- fixing

co ns pi ra cy.

Plaintiffs appe al from the D istr ic t Cou rt’s sum mary jud gm ent an d certa in of its evidentiarydecisions. After addressi ng the applic able l egal st and ard s, we first address whether summaryjudgment was warrant e d based on the e vidence the

### 8

Distri ct Co urt con sider ed. 6 We conclude that the Dist

rict Court shoul d not have grantedsummary judgment on plaintiffs’ flat gl as s p ri ce -f

ix in g c la im , a nd w e address th e Di s trict Court’s eviden tiary ruli ngs so tha t th e Cou rt can f urther consider what evidence a

jur y may consider on rem and. We affirm su mm ary judgment on pl ainti ffs’ aut om otiv e rep lace me nt g lass c ons pira cy clai m.

II. Discussi on

Section 1 of the Sherman Act provides that “every contra ct, combinati on in th e form of trust or ot herwise, or
co nsp ira cy, in res trai nt of tr ade or

commerce . . . is dec lared to b e illeg al.” 15 U.S .C. § 1. D espit e i ts broa d language, Section 1 only prohibit s contracts,

com binations, or con spira cies t ha t

unre ason ably restrain t

rade. See InterVest Inc. v. Bloomberg, L.P. , 340 F.3d 144, 158 (3d Cir. 20 03). C ertain re strain ts of trade

are per se unreason able, wh ile others requir e more searc hing analysis under the “rule of reason. ” Id. at 15 8-5 9.

Res traints of trade are per se
unre ason able wh en the y are “‘m anife stly antic ompetitive’ or ‘w ould alw ay s or al most always tend t o restric t comp etition.’” Rossi v. Standard Roofing, Inc. , 156 F.3 d 45 2, 461 (3d Cir. 1998) (quoti ng Busi nes s El ecs . Corp. v. Sh arp Elecs. Corp. , 485 U.S . 717, 723 (1 988)). Because of the ir “pern ic io us effect on competition and lack of any redeeming virtu e,” Northern Pac. Ry. v. United State s , 356 U.S. 1, 5 (1958), these restra in ts of trad e are “ conc lusively pres umed to unre asonably rest rai n competition ‘without

elaborate inquiry as to the prec ise harm [it has] caused or t he business excuse for [i ts] use.” Rossi , 156 F.3 d at 461 (i nternalcitations and quo tatio ns o mitte d).



### Here, plai n tiffs allege tha t PPG engaged in horizon tal price-fixing —i.e., “where competitors at the sa me market levelagree to fix or control the prices they will charge for t heir re spective goods or services.” United Stat

es v. Brown

Univ. , 5 F.3d658, 6 70 (3d Cir. 1993). Since at least United States v. Socony-Vacuum Oil Co. , 310 U.S. 150 ( 1940 ), th e Su preme Courthas held that suchrestr aints of trade

are pe r se unreasonable. “Whatever economic justific ation par ticul a r price- fixing agreements may be though t to have,” the Courtexplained, “the law does

no tpermitan inquiry into their reasonablen ess. They are all banned because of their a ctual or potential threa t to the cent

ral ner vous sy stem

of the economy.” 310 U.S. 150, 224 n.59 (194 0); see also Brown Univ. , 5 F.3d at 670.

As a result, plaintiff s ne ed only pr ove that “ the defendant s conspired among each other

and that this conspir acy
was the pro xima te cau se of the pla in tiff ’s 6 We exercise pl enary revi ew over the District Cou rt’s grant of sum mary judg men t. Se e, e. g. , InterVest Inc. v. Bloomberg, L.P. , 340 F.3 d 144, 158 (3d Cir. 2003 ).

### 9

inju ry.” InterVest , 340 F.3 d at 1 59. 

### PPG does not disp ute p rox ima te causat ion. Rather, it argue s that it did not agreewith its competitors to fix prices.

The existen ce of an ag reem ent is “[t]he ve ry essen ce o f a s ectio n 1 c laim .” Alvord-Polk, Inc. v. Schumacher & Co. , 37 F.3d 996, 999 ( 3d C ir. 1 994). The Sherman Act speaks i n t erms of a “co ntra ct,” “c ombina tion” or “c on sp ira cy, ” but cour ts hav e interp reted th is langu age to req uire “some form of concerted acti on

. ” Id

. at 999 & n.1. In other w ords, there must be a “‘uni ty of purpose or a common design and underst anding or a meeting of

m inds’” or “‘a cons cious commitmen t t o
a common s c heme.’” Monsanto Co. v. Spra y-Rite Service Co rp. , 465 U.S. 752, 764 (1984) (quot

ing Ed w ar d J . S w ee ne y & Sons, In c. v. Texaco, Inc. , 637 F.2d 105, 111 (3d Cir . 198 0)).

When faced with whethe r a plai ntiff has offered suff

icie nt pro of of an agreementto prec lude s um mary jud gm ent,

a cou rt mus t g ene ra ll y app lyth e s ame
summ ary judg men t standa rds tha t apply in otherconte xts

. S ee Intervest , 340 F.3d at 159-60. A co urt shall render sum mary judgmentwhe n t he evidence s hows “that there is no g enuin e issue as to any mat erial factand th at the m ovin g par ty is entitled to judgment as a

matter of law.” Fed R. Civ. P. 56(c ). In ma king this dete rmina tio n, a
co urt must “view the facts a nd any

reaso nable infere nces draw n th e refro m in the lig ht mo st favo rable to the pa rty opposing summary j udgment.” Intervest , 340 F.3d at 16 0. And a court “ should not tightly compartmental ize the evidence put forw ard by the nonm ovant, but ins tead shou ld an aly ze it as a w hole to see if it

su p ports an in fere nce of c onc erted actio n.” Pe tru zz i's IGA v. Darling-D elaware , 998 F.2 d 12 24, 1 230 (3d Cir .199 3).


### Although these norm al summ ary judgmentprinciples apply in antitr

ust cases, an im por

ta ntdi stin ct io n e xi st s. As the Supreme Court hel d in M atsush ita Elec tric Indu s trial Co . v. Zen ith Ra dio Corp. , 475 U.S. 574 (1986), “anti trust law limits the range of permiss ible i nferences from am b igu ous evid enc e in a § 1 c ase .” Id. at 588; see also M on sa nt o C o. v . S pr ayRite Servi ce Corp. , 465 U.S. 752, 763-64 (1984). In other

words, certain “ infere nces may not be drawn f

ro m circumst antia l evidence in an antitr

ust cas e.” Intervest , 340 F.3d at 160. 7 This higher thres hold i s imposed in antitru st case s to av oid deterring innocent

co ndu ct that ref lects enhanced, rather than res trai ned , com petit ion

.

7 

### The “s tri ctur

es of Matsushita do not ap pl y” when a plaintiff provides direct evidence of a consp iracy. Petruz zi ’s , 998 F .2d a t 1233. That i s becaus e “no inferences are required from direct evidence to esta

blish a fact and thus a court need not be c onc erned about the reasonablen ess o f the inferences to be drawn from such evidence.” Id. In addition, “the focusin Matsushita was on ambiguous evidence, and what inferences reasonab ly could be dra wn from that evidence.” Id. (internal cita tion omitted).

### 10

We explored “ exactl y what infere nces are ci rcumscri bed in a sec tion 1 case” in o ur de cisi on in Pe tru zz i's . There,

w e ide ntifi ed “ two importan t circumst ances underly ing the [Supreme] Cou rt’s decisio n in M atsush ita ”: (1) “the plaintiffs’ theory of

conspir acy was im pl ausibl e”; and (2) “permitt ing an infere n ce of anti trust

conspir acy i n the

c ircumst ances ‘would have the effecto f deterr ing signi

ficant proc om petitiv e condu ct.’” 998 F.2d at 1232 ( quoting In re Coo rdinat ed Pre trial Proc eedin gs in Petrol eum Prods. Anti trust Liti g. , 906 F.2 d 432, 439 (9 th Ci r. 1 990 )) (em phas is in Petruzzi’s ). In othe r wo r ds, “the Co urt stat ed that

the accept able i nferences whic h

c an be dr aw n fro m circ um stantial e videnc e vary with the pla usibility of the plaintiffs’ theory and t he da nger s asso ciated with such infere nces.” Id. ; see also M atsush ita , 475 U.S. at 587 ( “[I]f t he factualcontext renders [the plaintiff's] cla i m impla usible— if

the cla im is o ne th a t simp ly makes no ec o nomic sense—[a plaint iff] must co m e forw ard with m ore persuasi ve evidence to suppo rt [its] claim than w ou ld otherwise be necess ary .”) (cita tion s om itted ).

The plaintiff s in M atsush ita alle ged that the de fend ants conspir ed to eng age in predatory prici ng, the prac tice by which “a firm sets i ts pr ice s temporarily below costs, with the hope that t he low price will d ri ve a competit or out of bus iness, after which the ‘pred atory’ firm will raise its pri ces so high that it will r ecoup it s tempora ry losses and earn addi tional prof it, all be fore new firms, attr ac t ed by the high pri ces, enter it s market andforce prices down.” Clamp-All Corp. , 851 F.2d at 483. Courts and comm entators alik e have come to regar d predatory pricing as a rela tively spe culat ive phenomenon , particu larly w h en its success requires collu s ion am ong mu ltiple firm s. See Brooke Group L td. v. Brown & Willi amson Tobacco Corp. , 509 U.S. 209, 226-27 (1993). Inference s about pred atory pr ici ng are also inherentl y weak because the behavior of

firms engage d in predatory prici ng wo uld larg ely mirro r how firms in

a competitive market

act: by cutting prices. See M atsush ita , 4 75 U .S. a t 594 (“[C]utt ing prices in order to increase business oft en is t

he very essence of

com petit ion .” ). Thus inferr ing from ambiguous evidence that firms a re engaging in pred atory pricin g w ould “chill procompeti tive beh avio r.” Petruzzi’s , 998 F.2d at 1232.

In Petruzzi’s , by cont r ast, the pl ainti ff alle ged that

the defendant s conspir ed to alloc ate cu sto mers

. “[P ]lainti f f’s theoryof conspir acy i s not imp laus ible,” we explained, rather it made “perfect economic sense .” 998 F.2 d at 1232. In addition, t

he chall enged acti viti es could not reas onably be percei ved as procompeti tive. Id. (“After al l, refusing to bid on accounts hardly can be label ed as the ‘veryessence of competiti on.’”) (quoti ng M atsush ita , 4 75 U .S . at 5 94) . A s
a resul t of

th os e c ircu mst an ce s, we concluded that “ more libe ral i nferences from the ev idenc e sho uld b e perm itt e d than in M atsush ita because the attendant dange rs from drawing inf erence s

### 11

recogniz ed in M atsush ita are n ot p rese nt.” Id. ; see also Intervest , 340 F.3d at 162; Alvord-Polk, Inc. , 37 F.3d at 1001 (“[T]he meaning we ascribe to circumst an tial evidence will var

y dependi ng on t he challenged condu ct.”). 8

Here, like i n P et ruzzi’s , plaintiffs’ theory of conspir acy—an agreement among oligop olists to f ix price s at a supracompeti tive level —m ak e s perfect

econ om ic sense. In addition, absent increa ses in margina l cost or demand, rais ing prices general ly does no t ap pr oximate—and cannot be mis taken

as— com petitive c ond uct.

Yet de s pite t

he absence of t

he M atsush ita Cou r t’s concerns, this C ourt and others have been caut ious i n accepti ng infere nces from circ umstanti al evide nce in

cases involvi ng alle gations of hor i zontal price- fixing am ong olig opo lists. See Willi amson Oil Co. v. Phi li p Morri s US A, R. J. , 346 F.3d 1287, 1300- 01 (11 th Cir. 2003); Blom kest F ertil ize r, Inc. v. Potash Corp. of Saskatch ew an , 203 F.3d 1028, 1042-43 (8 th Cir. 20 00); In re Baby Food AntitrustLiti gation , 166 F.3d 112, 121-22 (3d Cir. 1999 ); Cl amp- All Corp. v. Cast Iron Soil P ipe Ins titute , 851 F.2d 478, 484 (1 st Cir. 19 88); Ap ex O il Co. v . DiM aurio , 822 F.2d 246, 253- 54 (2d C ir . 1987 ); see also Petruzzi’s , 998 F.3d at 1232-33. 9 The basis for thi s cir cumspect appr oach is t he theory of “inte rdependence. ” See Do nald F. Tu rne r, The De finitio n of Agreement Under the She rman Act: Consci ous Paralleli sm and Refusals to Deal , 75 Harv. L. Rev . 655, 662-6 3 (1962 ). 8 

### As o ne p romi n ent antitrust commentator has exp lained:

Matsushita spo k e in the context of a hi ghl y i mprobable tw en ty- yea r

long pr edatory pricin g conspiracy

and requir e d high-qu ality

evidence to permit such a consp ir a cy to be presented to a jury. . . . However, Matsu s hita itself said littl e about proo f requirements in a case where underlying structural eviden ce indicat

es that the offense is quite plausib le andwould be pro f

itable for the defend ants.

Herbe rt Ho ven kam p, The Rational iza t ion of Antitrust , 116 H arv

. L. Rev. 917, 925- 26 (2003) (review ing Richard A. Po sner, Antitr ust Law (2d ed. 20 01))



### . 9 

### A leading a ntitrus t scho l ar, who

now authors t

he Areeda

tre atise, has characteriz ed these casesat least in part as “an unfortunate

misinterpre

tation”of Matsushita

. Herbert Hovenkam p , The Rational ization of Antitrust , 11 6 Harv . L. Rev. at925 (“[U]nfort

unatel y, many co urt s have read M atsush ita as req uiring a certain quantum evidence o f

verbal a greement before s umm ary judgment can b e avoided .”).

### 12

The theoryof inte rdepende nc e posits the fo llow ing: In a mark et with many firms, the effects of any single firm’s price and output decisions “would be so diffusedamong its n ume rous com petitors that they would n ot be aware of any cha nge .” Phill ip E

. Areed a & H erbert Hovenkamp, Antitr

ust Law ¶ 1429, at

206 (2 nd e d. 2000). I n a highly concentr ated market(i.e ., a m ar ke t d om in ate d b y fe w firms), how ever, a ny single f irm’s “ pric e and outp ut dec isions w ill have a notic eable impacton the market

and on its rival s.” Id. Thus when a firm in a conc entrated market (i.e., an “oli gopol ist ”) is decidi ng on a
course of acti on, “anyrati onal deci sion must t a ke into a ccount the anti cipat ed reaction of

the othe r [] fi rms.” Id. at 207. 10

The result, according to the theory of interdependence, is tha t firms in a concentr ated mark et ma y mainta in their pr ice s at supr acompetitive le vels, or even raise them to those level s, without engaging in a ny overt concerted action. We quote the Areeda t

reati se at l ength:

The fi rs t f

irm i n a five-firm ol ig op ol y, Alp h a, may be

e ager to lower its pri c e somewhat i n ord er t o expand its sal es. Ho we ver, it k n ows that t

he other f

our fi rms would pr obabl y respond to a price cut by reducing their pric es to main tain t heir pr eviou s marketshares. Unles s A lpha belie ves that i t can concea l its price reducti on for a ti me
or otherwise gain a substant ial advantage fr om being the firs t to move, the pr ice reduct ion woul d

me re ly reduce Alpha’ s prof its and the profit s of the other f irms a s we ll.

Such “oligopol isti c rationa li ty” c annot onl y fores tall rivalrou s pric e reduc tions, it ca n a lso provide for price incre as es through, for example, price leader ship. If the price had for some reason been l ess than X [ the pri ce a monopo list

would charge to maximize pro fits], fi rm B eta might announce its decisi on to rais e its price to X effecti ve imm ediate ly, or in severaldays, or next seas on. The ot her four firms may 10 

### “For example, in a mar

ket of one hundred selle

rs of equal

size, an expansi on in o utput of

20 percen t by one of th e m will result

in an aver

age fall in o utput of only about .2 percen t for each of the

o thers, so a s ell er ne ed not wo rr y i n makinghis prici ng decisi ons about the react ions of his rivals.” Richard A. Posner, Antitrust La w 56 ( 2 nd 

### ed. 2001 ). But if “thereare three sellers o f equ al siz e, a 20 percent expansion i

n the sales of

one will

cause the sales of each of theothers to fall by an average

of 10 p ercent—a sales loss the victims c an hardly overl ook.” Id.

### 13 each choose t o follow Beta’s lead; if

they do not in cr ease their pric es to Beta’s level, Beta may be forced to reduce its price to their l evel. Because each of the other f ir m s kno ws th is, each will consider w he ther it is bette r off w hen all are charging the old pric e or price X. They wil l obv iously choose X when the y b elieve that it w ill

m axi mize indu str y profits.

Id. at 207-08.
Despi t e the nonc omp etitive nature of such cond uct, w hich w e hav e com e to call “con sciou s para llelism,” w e hav e held that the Sherman Ac t does not p roscrib e it. See In re Baby Foods , 166 F.3d at 121-22. There are tw o prim ary base s for th is ap pro ach, both embodied i n a line of scho larship that starte d w ith D onald Turner in 1962 and contin ued in large part in Phil lip Areeda’s influential antitrust treat ise. First , the re exis ts the notion t hat inter dependent behavior is not a n “agre eme nt” with i n the te rm’s meaning under the S her ma n A ct. See Tu rne r, supra , at 663 -65; but see Po sne r, Antitr ust Law , supra , at 94 -95. Se co nd, Turner a nd Areeda argued that jud ic ial remedies are incap able o f address ing t h e antic ompetitive effe cts of c onsc io u sly parall el pric ing . Tu rne r, supra , at 669-71, Areeda, Antitr

ust Law , supra , ¶¶ 1432d5- 1432f, at 232 -36; but see Posner , supra , at 98. Indeed, t

he Supreme Court ha s descri bed conscious paralle lism in dicta as “the pro ces s, not in i tsel f u nlawful , by which firms i n a concentr ated market might in eff ect share m onopo ly power, setting their

prices at a profit -maximizi ng, suprac o mpetitive level by r ecognizi ng t heir shared economi c inte rest s and the i r interdependence with res pect to pri ce and outputdecisi ons.” Brooke Group Ltd. v. Bro wn & W ill iamson Tobacco Corp. , 509 U.S. 20 9, 227 (19 93) (em phasis add ed).

As a resul t, we have r equi red that plaint iffs basin g a cla im of coll usio n on infere nces fro m conscious ly parall el be ha viorshow that certain “plus factors” also ex is t. See In re Baby Food , 166 F.3d at 122 ; Petruzzi’s , 998 F. 2d at 1243. 11 Ex iste nce of the se plu s facto rs tend s to

ensure that c ourts puni sh “concerted acti on”—an actual agreement—inste ad of the “unilateral , inde pendent conduct of

com petit ors.” In re Baby Food , 166 F.3d at

11 

### Thus in o rder to establish illegal concerte d action based o n “consciou sly parallel behavior, a plaintiff must show (1) that the defendants’ behavior was parallel; ( 2) that the

defendantswere cons cious of eachother’s cond uct and that th is

awareness was a n ele me n t in their decisi on- makingprocess; and ( 3) certain ‘plus’ factors .” Petruzzi’s , 998 F.2d at 1242, quoted in Intervest , 340 F.3d at 165. I t is und isput ed tha t the firs t two circumsta nces exist here, and we therefore concentrate o n the third an d final.

### 14

122. In other

words, the factor s se rve as proxies for d irect

evidence of an agree men t.

The questi on the n becomes, what

are “plus facto rs ” that suffice to defeat

summ ary judgment? There i s no finite set

o f such criteri a; no exhaustive list exist s

. See Id. ; Areeda, supra , ¶ 1434a, at 241-42. We have identifie d, however, at le ast t hree such plus factors: ( 1) evid ence that the defendantha d a motive t o enter i nto a price fix in g c on sp ira cy; (2 ) evidenc e that the defe ndan t acted contra ry to its interest s; an d (3) “evi dence imply ing a tradi tionalconspir acy. ” Petruzzi’s , 998 F.2 d at 1 244

.

I n the cont ext of par alle l pri cing, the firs t two fact ors largelyrest ate the p h enomenon of

i nt er de pe nd en ce

. We cand idly acknowledged as much in In re Baby Food , 166 F.3 d at 1 22. See also Areeda, supra , ¶ 14 34c 1, at 24 5 (“‘[C]ons pirat orialmo tivation ’ and ‘acts against self- interest’ often do no more than restate inter dep end enc e.”); P osn er, supra , at 10 0. Evidence t

hat the defendant had a motive to ente r int o a price fixing conspir acy means e vidence that the industry is conduci ve to oligo polistic price fixing, eithe r int er dep endentl y or through

a more express f

orm of coll usion. In other words, it i s “evidenc e that the st ructur e of the market was such as to make secret price fixing f

easibl e.” In re High Fructose Corn Syrup Anti trust

Liti gation , 295 F.3d 651, 655 (7th Cir. 2002 ). Evidence that the defendantacted co ntrary to its inte rests

means evidence of conduc t that would be irr ationa l assuming that the defendant

op erate d in a c om petit ive m ark et. In a competitive industry, for examp le, a firm

wo uld cut it s pric e with the hope of incr easing its mark et share if its

com petito r s were setting pri ces above

mar gi nal cos ts. Pu t diff eren tly, i n anal yz ing this fac tor a co urt look s to “evidence that t

he market behaved i n a noncompetitive manner. ” Id.

T hese two plu s factors are important

to a court’s analy sis, because their exist ence tends to eli minate t he possibi lit y of mis taking t

he workings of a competitive market—where firms might increase price when, for example, demand increa s es— with inter dependen t , supracompeti tive pricing. But since t hese factors ofte n rest ate i nterdepe ndence (at leastin the c ont ext of an all eged pric efixing con sp ira cy) , th ey m ay no t suffice —by themsel ves—to defea t

summ ary judgment on a cl aim of horizon tal pr ice-f ixing amon g oligop olists

. 12 The mos t import an t

12 Ne ither fa ctor is “s trictly

nec essa ry.” In re High Fructose C orn Syrup Antitr

ust Litigati on , 295 F.3d 65 1, 655 (7th C ir . 2 002). Thus t his type of

econ om ic evidence is neither necessa ry
nor suffici ent to c onclude that suffi cient proof of an agreement exi sts t o preclude

summ ary ju dgme nt, but it is re levant

and

cour ts should as a general matter consider it.



### We also observ e that certain ty pes

### 15

evidence will g en erally be n on-e cono mic evidence “that th ere w as an actua l, manifest agreement not

to co mp ete.” Id. at 661. T hat evide nce m ay involv e “custom ary indications of tradi tional conspir acy, ”or “pro of tha t the de fend ants got togethe r and exchanged assur ances of

common acti on or otherwise adopted a

common plan even though no m eetings, conversation s , or ex chan ged d ocum ents

are sho wn .” A reed a, supra , ¶ 14 34b , a t 243; see also Petruzzi’s , 998 F.2d at 1244.



### We turn to whether plaintiffs here haveadduced s uf

ficient evidence of plus factors to precl

ude summary

judgment on their two separa te antitrust claims.

A. Flat Glass

We first no te that p la inti ffs have offered subs tantial ev idenc e tend ing to show that PP G h ad a m otive to enter in t o
a price f ixing c onsp ir acy be caus e conditi ons exist ed in the flat glass industry that were conduci ve to co llusio n. As we have described, the flat glass ma rket is concentr ated; there are a hand ful of sellers and th ere is no “f ringe m arket” of smalle r firm s. Fl at gla ss is sold pri marily on the basis of price, and a lthoug h it ma y vary in tint or thi ckness i t is gener all y a standar dized p r oduct. Importantly , the demand for fla t glass w as in decli ne during the start of the 199 0s an d PP G a nd its competit or s had e xces s cap acity

. Norm al ly, reduced demand and excess supp ly are ec ono mic conditi ons that favor price cuts , rather than price i ncreases. Th ere are al so high fi xed costs in th e in du str y. See A pp . 63 5. S uf fic e it to sa y, the flat glass i ndustry i s in many respects a text book exa mple of an industry

sus cepti bl e to effort s to maint ai n supracompeti tive pric es. See g e nerally Richar d A. Po sne r, Antitr ust Law 69-79 (2d ed. 2001). PPG con ced es a s m uch

. See Tr. of Oral Argument 21-22.

Si m ila rly, there i s evi de nce in the

reco r d indicating t

hat the price i ncreases PPG and its c om petitors im plem ente d

w e re inconsi stent

with competi tion i n the in du str y. In other w ords, there is evi dence of anti- competitive behavi or and that PPG acted “con trary to its interests. ” The entry of Cardinal into t

he market, for example, tends to indi cate that flat glass produ cers
were charging s upracompeti tive price s

. See Posner, supra , at

89 (“The chargi ng of

a m onop oly price wil l att ract ne w comp etitors to a market who percei ve opportuni ties for unusual profit s by reason of th e a bn or m all y high price.”). Mo re impo rtant, no ev id en ce suggest s that the increase in list price s wa s corre lated w ith any changes in cost s or demand. Inde ed, in 

### of “acti ons agains t self interes t” ma y do

more th an restate ec ono m i c interdependence. F orexample, non-price acts against self-in teres t, such a s ap parently unilateral exch anges o f confid en tialprice informat ion, cannot simply be explained a s a res ult of oligopo losti c interdependence

. Se e Blomkest F e rtilizer, Inc. , 203 F.3d at 1046-47 (Gibson, J., dissenting).

### 16

July of 1992 a PP G executive noted that “[n]o one . . . bel ieves t

hat demand willbe robust enough to support a price increase withoutsignif icant d is cipli ne on the part of all floa t producers .” App. 5841. After the flat glass producers i mp lemented a price inc reas e in Sep te mber

of 1 992 , t

he s ame executi ve noted that “[b]a sic suppl y and demand do not su ppor t thi s [1992] incr eas e.” A pp. 5 908

.

All the ab ove in dicate s th at the price increa ses were col lusi ve, but not whether the collusi on was merel y interdependentor t he re sult of an actual agree men t. We therefore consider whether suffici ent “traditio nal” conspir ac y evidenc e e xists fro m w hich a reaso nably jury could inf

er that an agreement e xist ed. Pla int iffs argue that ev idence that P PG ’s comp etitors entere d into an a greement—at least amongst themse lves—tends to show that PPG too entere d the sam e agre eme nt. They also ar gue that

ot he r cir cumstanti al evid ence shows—or at least a finder of factcould inf

er—that PPG agreed to raise the price of flat

glass three specifi c times: Jun e-July of 1991, Septe mber-October of 1992, and May-J une of 1993.

As a preli minarymatter , ho wev er,
we address a n argument that perva des PPG ’s briefs, both before us and before t he Distri ct C ourt. PPG contends tha t regardless of the fl at gla ss producers’ lis t prices, the ac tual trans acti onal prices —that is, the prices at w hich flat glass pro ducers actua lly sold their pro duct t o customers —declined during t he period of the alleg ed c ons pira cy. Inso far a s PPG argues th at plaintiffs cannot est ablish liability as a matter

of law for that reas on, it is si mply wrong. 13 “A n agr eem ent to f ix

13 

### PPG argued before the District Court, for example, that “controllin g case law prec ludes an a

ntitrus t plaint

iff from

a vo iding summary

judgment by reliance

on evidence

relat ing to lis t price s.” App. 667. PPG miss tatesthe law. Declining transa ction prices will tend to support a conclusi on that competitorsdid not enter into an agr

eem ent t o fix pr ice s wh e re the

o ther record evid ence also fail s t o sufficiently prove an a greement. See, e.g. , Clamp-All Corp. , 851 F.2d at 484 (“[T]he fa ct that [the defendants] often set pri ce s that de viated fr

om thei r price listshelps supportthe inferencethat the similarit y of pricelists reflects individua l decisions to

co py, rather than any

moreformalpricing agreement.” ). Our decis ion in In re Baby Food is not

to the contrary . In the specific factualsetting of that ca se—involving “hundreds of prod ucts” and multiple

com plicated discounts an d pric e prom otion s—we

concluded that p laintiff

s ’ andtheirexperts’ use of list pric e data was insuffici ent

to show that

parallel pricing had occurred. 166 F.3d at 128- 29. Significan tl y, the defendants mad e “simila r pricing decisions ” 15 .5% of the time and priced th eir products d if fe rently 84.5% of the time. Id. at 128. The District Courttherefor

e concluded, in a porti on of its decision that we cited wi th approv al, that the plaintiffs were “unab le t o show that defenda nts’ prices moved in a parallel fash io n. That is true both for list prices

### 17

prices is . . . a

per se vi olat ion of

the Sherman Ac t even if mo st o r f or that matt er all t

ransactions occur

red at l ower prices .” In re High Fruc tose Corn Sy rup , 295 F.3d at 656.

PPG does not— it cannot

— seri ousl y contend that th e flat glass produ cers increa sed their

lis t pri ces with no i ntenti on of a ffecting transa ction prices. “[S]e llers

wo uld not bother t o fix li st pri ces if t hey thoughtthere w ould be no effect on trans acti on prices .” Id. Thus de clini ng trans acti on prices despit e an agreement to fix lis t pri ces wou ld c onsti tute a fail ed atte mpt to fix pric es. B ut a horizont al agreementto fix prices nee d not succee d for sell ers t o be liable under t he Sherman Ac t; it i s the at

temptthat t

he Sherman Act proscribes

. S ee 

### Socony -Vacuum Oil Co. , 310 U.S. at 224 n. 59.

1. Evid ence of an Ag reem ent Am ong P PG ’s Com petitors

The Distri ct Court c oncluded that the record “undoubtedly evidence s t hat several of the set tli ng defendan t s
co nsp ired t o f

i x p r i ce s. ” A pp

. 46

. We agree. The m ost com pelling basis f or this conclusi on is a do cum ent th a t L OF submitt ed to the Department of J ustice’s An titrus t Di visio n in 199 5.

The Antitr

ust Divi sion had a “Co rpora te Leniency Policy ” in effect at the ti me u nde r wh ic h the DO J accorded “l eniencyto corpor ations reporting their ill egal antitrust a ctivity at an ea rly stage, if they m eet c ertai n co ndi tion s.” App. 6459. Among the policy ’s requi rements was that the cooperating corp orati on “report [] the wrongdoing with candor a n d com plete ness
an d provide[] full, co ntinui ng an d comp l ete cooperation that advances the Divisi on in its inv esti gation. ” App. 6460.

LOF soug ht le nie ncy under the policy in 1995, but

the Antit

rust Divi sion concluded t hat LOF had not been suff iciently forthcomi ng with information of its wrongdoing. “We are s urp rise d that you consider

our proffer, which descri bed

an agr eed upo n, acr oss the board pri ce increase for the entire United St at es ,” LOF responded, “ to be less t han a ‘ful l and

com plete disc losu re.’” Ap p. 50 03.

LO F’s response to the Antitrust Divisi on does not dir ectly state tha t it ag reed with PPG to raise p rices. B ut a

reaso nable factfi nder could i nfer suc h an agreementfrom LOF’s reference to an “across the board” p rice increase. Blac k’s L aw Diction ary defines “across-the-bo ard ”

as “[a]p plying to all c lasse s, categories , or gro ups .” 

### Black’s Law Dictionary 24 (7 th 

### ed. 1999). One rea sona ble i nterpr etation of LO F’s statem ent is tha t LO F ag reed w it h

one or more co mpetit or to i ncrease t he price of all t ypes of

flat glas s. An other is that LOF agree d w ith all its com petitors to increase prices on one or more cat egory of flat glass. And yet a not

he r i s tha t L OF



### and transaction prices. ” Id.

### 18

agreed with all its com petitors to increase the pri ce of all types of flat glass. 14

PPG argues that unde r our decis ion in In re Baby Food , “ th e fa ctth atsom e otherglass pr oducers may have att empted to fix pr ices in this case i s ir

rel evant .” PPG Br ief 8 2. We disagree. Ev en if LO F’s stat emen t—and any other evidenc e—tends to show thatPP G’s competit ors agre ed among them selves to rais e price s but does not directly implic ate PP G, it is surel y not irr elevant

to w hethe r PPG ente r ed an ag ree men t. If si x firms act in paral lel fashion and there is evi dence that five of the firms entere d into an agreement, for example, it i s reasonable to i nfer tha t the sixth firm act ed consis tent wit h the othe r fi ve firms’ actions because it was also a p arty to the a greement. That is e speci all y
so if the sister firm’s behavior mirror ed that of the f i ve conceded coco nspirators. In som e circ um stan ces , to be sure, such evidence might not

be s uffic ient alo ne to defeatsum ma ry judg me nt. See In re Citric Ac id Lit i g. , 191 F.3d 1090, 11 06 (9 th Cir. 1999). But we need not determi ne whether it can be here, because pl ainti ffs argue that additi onal evidence s upp orts t hei r conte ntio n that PPG entered into a n agree men t. 2. The June-July 1991 Increase

O n June 7, 1991, AFG announc e d that it was r aisi ng the pri ce of its flat glass. The pric e increa se was to become effec tive

on July15, 1991. App. 3552. Neither PPG

nor any of AF G’s other competitor s rai sed their prices in res ponse. 15

Also on June 7, 1991, top executi ves from Pilki ngton’s various bus inesse s (incl uding LOF) met in the United Kingdom. Minutes fr om the meeting state: “T here w ere ind icati o ns that

a price in cr ease of approxi mately8%

wo uld hold” in t

he United States. App. 386 8.

A week late r, on J une 13, 199 1, two of LOF ’s board members ( To moaki Abe and Mr. M atsumora ) tra veled t o Pen nsylvan ia to pl ay g olf with R obert Duncan, the V ice Pre siden t of PP G’s Glass Group. The night

before they play ed golf, Abe ’s admi ni stra ti ve a ss is ta ntse nthi m a fax relati ng a message from Glen Nightingal e, the Pil kington exe cutive based in London with re sponsibi lit y for LOF. 1 6 The fax s tated: “M r. Nig htinga le

14 

### PPG doe s not

argue that LOF’s profferis not

admissible, and we therefore

assu me that

it i s for purpos es of th is decisi on. In any

case, howev er, we wou ld reachthe same re s ul t even if we did not consider LO F’s proff er. 15 

### AFG raised the price o f its “p att ern glass” by 4%, its “thin glass products” by 5%, its “gr ay andb ronze thicknesses” by

9%, and its “4 mm-12 mm” also by 9%. App. 3552.

16 

### LOF’s proffer t o the D OJ ide ntifiedNightingale as an individual “involved i n th e 1992 activities .” App. 5 003. It also stated that Nightingale had

### 19

reques t s that y ou call him on Friday morning [June 14] befor e y ou le ave your hotel room

— it will only take two minutes. He seemed rather

firm. . .” App. 3890.

Two weeks late r, on J une 28, 1991, PPG announced a 7.5-9% pri c e increa se—an amo u nt diff erent t han the price increase AFG announced on June 7, but no tab ly approximat ely 8%— to be effecti ve July 29, 1991. A pp. 5833 . PPG ’s comp etitors even tually followed suit w ith virtually identi cal pri ce incr eases, to be effecti ve eithe r July

29 or August 1, 1991. Ford announced its pri ce inc rease o n July 1, app. 3472; LOF announced i ts pri ce increase on July8, app. 3474; Guar dia n announced on Ju ly 9, app. 3482; and AFG resci nded i ts June 7 i ncrease a nd announced a price increa se in line with PPG’s on July10, app. 3551.

A cop y of PPG’s June 28, 1991 announcement prod uced from the fil es o f John Frazier (manager ofPPG’ s Knoxville, Tennes s ee branch) contains a ty pewritten note o n it st at ing : “ ALL OTHER MAJOR GLASS SUP PLI ERS ARE CONCURRE NT LY RAISI N G PRICES TH E S AM E P ER CE NT AG E.” App. 5833. Evidence suggests that Frazier recei ved this document , t ogether wit h the ty pewritten notati on, someti me be fo re PPG ’s competit ors ha d a ctual ly matched

PPG’s price i ncrease. 17

On July2, 1991, a

Ford exe cutive

se nt an em ail to his regional ma nagers stating that “[w]e must hav e total support of this ind ustry pricin g acti o n and focus

our atte ntio n on implementi ng the pri ce increase in an intelli gent manner. The acti ons being taken are im portan t t o the industry and will improve the commercial glass profit abili ty .” App. 355 3. As of that da y, however, nei ther LOF nor Guardi a n had announced a pri ce incr ea se. They announced increa ses on July 8 an d July 9,

re sp ec tiv ely.

A PPG inte rna l document dated September6, 1991 st ated that the “pri ce in c rease was implemented wit hout any problems. ” Ap p. 583 1. A simila r docu men t, dated Sept em ber3, 1991, s tate d that “[t]he indus t ry price i ncrease was imple men te d in Aug ust by all primary



### “discus sions with [an AFG executive] that resulted in a pric e move. ” App. 5004. Nighti ngale inv oked his Fift h Amendm

ent privilege against self incr im ination when plaintiffs so ught to d epose him. 17 

### PPG on the other handargu es that there is evidenc e suggestin g that

someone ty ped the note

on the June 28

announcement af

ter its com

petitor s
a nno unced their price increases. P PG is undou btedly correct; this doc umen t’s ti me frame is a disputed fact

and a finder of fact could reasona

bly reach t he conclus ion PPG ur ge s us to draw. But a fact finder could also r

eas onably

conclude t

he opposite, and it

is bl ack l ett

er l aw tha t we must draw all reason ab le inferences in pl aintiffs’ favor at this p oint in th e proceeding s.

### 20

manufacturers, although vary ing degree s of protec ti on were offered byour
com petit ion .” App . 5 731 . A n in te rn al LOF document from November of 1991, how ever, sta ted that the “[p]rice increase of 8/19/91 i s unravel ing at s ev er al key

acco unts due to AFG/ Gl averbec / Gua rdian’s fail ure to hol d the l ine o n pricin g and PPG’s price pr otect ed annual contra cts through t

he year end.” App. 1712.



### To summari ze: AFG raised its prices , but no one foll owed s uit. LOF executives ex pr essed their opin ion at a board meet

ing that a n 8% i ncrease in flat gl as s prices would “hold.” Two board membersmet with a PPGexe cutive one weekl at er. Two wee

ks after the meeting, PPG raised its flat

glas s pricesby essentiall ythe s ame

amount th at LOF executives thought

would “hold. ” An internalPPG memo randum, which mi ght havebeen produced prior to any other fir

m announcingan increase in its flat glass prices, states that other

flat glass pro d ucers
were “con curr entl y raisin g pr ices t he sa me percentage.” The flat

glass manufacturer s initiallyfelt that the price incre ase had gone succes sfully , but

they l ater felt it was

un succes sfulbecause at leas t some o f them failed to “hold the line. ”

3. The September- O ctober 1992 Price Increase

A July1, 1992 entry in the p ocket calendar for a Ford Re gional Sal es Manager indica ted tha t LO F w as go ing to

announce a price increa se on Sept. 22, 19 92, effe ctive O ct. 1, 19 92, w ith incr ea ses of 9% on clear and tinted glass and 5% on “Eclipse” gl ass. App. 3628 . A few weeks late r, on J uly 24, 1992, Joseph Hud son— PPG ’s Eastern Zone Manager for Flat Glass Pr odu cts, app. 5908— noted: “No one, however, bel ie ves that demand will be robu st eno ugh to sup port a price increa se w ithout s ig nific an t disc ipli ne on the part of all float producers .” App. 5841. 18

18 A fu ller excerp t fro m the cit ed portion of the record states:

Glaverbec appears t o have quiete d dow n just a b it in te rms of new aggressi ve prici ng, seemingly

for the first time to be content

with current absurdly l ow prices. Si gn ifi ca nt ly, for the first ti m e, Glaverbec i s reported to have said tha t their tan k is sold out. All producers, includi ng PPG , contin ue to react sele cti v e ly t o Glave rbec’s prici ng and atte mpt to pro t ect sel ected cust o mers and s electe d markets.

Discussi on an d rumors surroundi ng a possibl e price increase late r in the y ear are widespread in the market place. No o ne, how ever, belie ves that

demand will be robust enou gh to supp ort a

### 21

In September of

1992, however, the

co m petitors announced a 5-9% price increa s e: AFG announced its pri ce increase on September 15, 1992, to be effecti ve October 1, app. 3545; Guardi an announced a price increa se on September 21, to be effect

ive Oct ober 9, app. 3547; LO F an nounced on September 22, to be effect ive Oc tober 1 , app. 3 476 ; and b oth PPG and Ford announced the ir prices increa ses on September23, to be effecti ve October 12, a p p. 347 5, 354 9. On September24, AFG changed the effect ive date of its price i ncrease fr om October 1 to October 12. App. 3550.

Between Septem b er 22 and September26, 1992, s oon after the pri ce increa ses were announc ed, sen io r executi ves from the various c omp etitors (P PG, For d, Gu a rdian, and Pilki ngton) atte nded a “G lass Fa ir” me eting in G er m an y. A Pilki ngton executi ve reported the follow ing in a letterto LOF’s Skeddle:

I was pleased t o learn during th e Glass Fair

that a n atte mpt to rai se prices by 9% in the Unite d States had been initiall y suppor

ted by al l suppli e r s in th e marketpl ace. During the Fa ir, I als o h ad th e opp ortun ity to mee t with R uss Ebeid of Guardi a n who as su red me that

they were full y suppor

tive of the price increase proposi t ion. Clearl y , this could make quite a differ ence to y our results if the price i ncreas e can sti ck.

App. 389 5. Th is exc erpt was r emoved from a later versi on o f the l ette r. App. 7194. 19

Fina lly , during t

he same ti me perio d in Sep te mb er o f 1992, PPG’s Hudson reiterate d his Jul y com ment that a price increase w ould not b e con sistent w ith marketconditi ons. Accordi ng to Hudson, “[b]a sic supp ly and demand do not supp ort this [1992] increase.” App. 5908. 20

price i ncreas e withoutsign ific a nt disci pline on the pa rt of all f loat producers.
App. 5841. 19 Even if thi s statement does not

unam bigu ously tend to show that fl at glass produc ers agreed ahead of time to raise prices, it at le as t ten ds to sh ow that there

was an a gree ment to maint ain highe r prices desp ite competitive demands (i .e. to “mak e it stick”).

20 The full excerpt fro m the reco rd reads:

Certai nly the hot topic on th e p rici ng front i s the industry increa se a nnoun ced during September t o b e effec t ive in O ctobe r. Bas ic supp ly and demand do not

### 22

T o summarize: A Ford Reg io na l Sales Manager was aware of the precise date when LOF was going to anno unce a price incr ease alm

ost three months ahead of time , as well as the

precise amountsof the incr ease. A PPG executive believed that the ma rket woul d not support a price increase. Nonetheless, P PG and its competitors raised

their pr ices by the s ame amount, all w ithin eight day s of each other. Soon after

the price increas es were announced, e xec utives fr om the va

rious flat glass producersattended a trade show at which a executive from Guardian assuredan execut

ive from Pilkington that Gua r dian was “fully

supporti ve of the pric e inc reas e pr opo sition .”



### 4. The May -June 1993 Price Increase

In Dece mber of 199 2, AFG’s Roger Kennedy told LOF’s Roger Teat that AFG

was “considering another increase in May or June [of 1993] of about 5 or 6%.” App. 3720, 3456, 3458-59. Tea t repor ted this to superiors at L O F w ith pr ici ng au th or ity. App. 3721-23, 3456- 58. 21

LO F’s pr eli m in ar y bu dget for fi scal year 1994, da ted January 21, 19 93, refers to a “May-June ‘ 93 pr ice i ncrease. ” App. 6432. Si mi larl y , a n LOF “CE O’s Review Rep ort” from M arch 30, 1993 st ate d that there wou ldbe “a U. S . domesti c price increase in the May-June timefr ame.” App. 4031. 22 And L OF’s revise d budget (dated

support this increa se,
so it will require disci pline on the pa rt o f eac h manufa ctu rer

. G l averbe c , Guar dian’s mirr o r oper atio n s an d AF G’s dist

ribution

arm ar e k eys t o the

succ ess of th e increa se.
App. 5908. 21 

### Kenne dywas an offic er and direct or of AFG . Alt hou gh Teat did not havepricingauthority, his precis e positi on at LOF is unc lear fr

om the r ecord.

22 A fuller e xcerpt s tate d:

A price i ncrease ha s been initiate d in Easte rn Canada by PPG to be effecti ve Ma rc h 2 2; 7% increas e for all clear , uncased pr oduct (2 .3 mm th ro ugh 6. 0mm) and a 9% increase for clear cased prod uct. It i s antic ipate d that this increase will be a l ead i nto aU.S. dom estic price i ncrease i n the Ma y-June timefra m e. LOF is follow in g th e Canadian lead and i ncluding heavy clear

and tint product with the i ncrease.
App. 4031.

### 23

Ap ril 5, 1993) als o r ef er re d t o a “M ayJune pri ce incr ease.” App. 4669. 23

A few months lat er, on Apri l 16, 1993, AFG f a x e d to PPG a “prepubli cati on” copy of its May 17, 1993 5.5 % pr ice i ncrease a nnouncement (t o be effecti ve in June) . App. 6369. 24 It al s o fax ed a cop y to G uar dian . Ap p. 37 11.

PPG anno u nced a 5.5% price increase on May 12, 1993, almost a week before AFG w as going t o announ ce it s pr ic e increa se. App. 5840. The rest of PPG ’s com petit or s quic kly follow ed su it. LOF, AFG, and Ford announced fiv e d ays later, on M ay 17 , 199 3. A pp. 3 477 , 3708, 3478. Gu ardia n an nounced on May 19, 1993. App. 6105. After t he p rice inc reases we nt into effe ct, John M usser (fr om PPG) reported that “[t]he price in crea se of 5.5% announced in earl y May byall maj or float produc ers for an imple men tati o n on or ab out June 7 has had t he effec t o f stabi lizi ng prices .” App. 59 06

. 25 In a

23 In addition, Ford’s busi ness plan (datedApril 29, 1993) als o referr ed to a 5 % price increase. A pp. 3698 . Unde r th e heading “Possibl e Opportunities and Imp rov em ents ,” it s tat ed : “A 5% market price increa se spurr ed by cyclical recovery with incre ased indu stry capac ity utilizati o n
wo uld increa se profi ts byalmos t $ 3 mill ion.” App. 3697-98.

24 

### PPG urges that AFG did not send thefax on April 16, 1993, arguing tha t the most likely explanation fo r th e date’s appearanceon the fax is that the fax machine malfunctioned . PPG is free to

ma ke th is ar gu me nt to a j ur y, b ut su re ly a

rea sonable finder of fact could infer that th e date o n the fax m

eans tha t it wassent on that day. 25 A fuller e xcerpt s tate d:



### Th e price increas e of 5.5% announced in earl y Ma

y by all major float producersfor

an imple menta tion on or about June 7 has had the ef f ect of stabilizing prices. Ov erall customer rea

ction t o the inc rea se has bee n favorabl e, particularly

in the mirr or and distributor/ fabrica tor segmen t s. Sash accounts who are n o t price protectedare re sisting the increased [ sic ], to a degree. The modest amount of

the increase, the perceived cost j ustific ation

for the increase , andthe firm

ness to d ate of all fl oat produc ers , however, are all po si tive factors which project that theannoun ced prices will hold. The highest degree of uncertainty resides on the West Coas t, which has t

he lowest lev e l of industry capacity utilization.
App. 5906.

### 24

simil ar vein, an LOF report (dated June 21, 19 93) stat ed: “Pri ce incr ease is in effect from all major ma nufacture rs. We are monitori ng the market

to make sure t

hat all sti ck to the ru les and wil l report any and all information we hea r ab out .” App. 3732.

PPG ’s Central Z one M anager, Thomas Merlitt

i, s tate d on June 25, 1993 that “[t]he price i ncrease i mplemen ted in J une rema ins firm ly in place a s all majo r flat glas s pro duc ers a re h old ing firm .” App. 3507. And Hudson of PPG report ed: “The increa se which was effecti ve June 7 has been a nea rly comp lete success. ” App. 5794.

To su mmariz e: AFG a nd L OF discuss ed a May-June 1993 price increase during th e p re ce di ng D ec emb er , a nd L OF accounted for such an inc rease in its forthcomi ng bud get. In April , AFG faxed to PPG a copy of the increa se it plan ned to

announce on May 17. PPG announced an identi cal increa se on May 12, and the rest of the fla t glass p rodu cers f ollo wed with identi c al price i ncreases . LOF was “m onitoring the m arket to mak e sure th a t all sti ck t o t he rules.” The flat glass produc ers al l “h eld fi rm,” and execut ives from the fi rms general ly consider e d the pric e inc reas e a “ suc ces s.”

5. Ana lyti cal Sum mary

The above evidence is suff icient to provide a finder

of fact wit

h a basis to

reaso nably conc lude th at PP G a greed with the other flat glass producers t o raise prices. Put diff

eren tly , the re is “evidence that would enable a rea sona ble jury to reje c t the hypo thesis th at the d efen dants foresw ore price c ompetition without actua lly agreei ng to do so. ” In re High Fructose Corn Syrup , 295 F .3d at 661 (citing M atsush ita , 475 U.S . at 48 8).

First, th ere is the evi dence— includi ng LOF’s assertion that there was

an “acro ss the b oard ” agre eme nt t o increase prices— that PPG ’s comp etitors ent ered into an a greement. And viewed collec tively and h olisti cal ly, there is evidence te ndi ng to s how th at PPG w a s a partyto an agreement to raise the pri ce of flat g lass o n th ree o cca sion s.

PPG urges us t o take a di fferent approach. It ap pe ar s t o pr opo se th at we consider each indi vidual pi ece of evidenc e and d i srega rd it if w e cou ld fea sibly inter pretit as consistent with t he absence of an agree men t to raise p rices. W ith regard to the a nnouncement that stated “ all oth er major gla ss suppl ier s ar e
conc urren tl y ra is in g pric es by th e s ame per cen tage ,” for example, PPG argues that the “facts suggestthatthe notation was placed on the announcem ent after allglass produc ers had is s ued thei r
ann oun cem ents .” PPG Br. 25 (emp hasis added ). Si mil arly , PPG contends that the “most likely explanation” for t he date that appears on an AFG price announ ceme nt found in PPG ’s file s “is t hat th e da te st amp
m ech anism malfuncti oned.” PPG Br. 43. We echo the Seventh Circ uit’ s admoniti on in In re High F ructose C orn Syrup that t he “statement of

facts i n the defendants ’ bri ef combines a recital of the fa cts fav orab le to

### 25

the defend ants wit

h an inte rpret ation fa vo rable to them of t he remaini ng evidence; and th at is the char acter of a tri al brief rat her than of

a brief defending a grantof summary j ud gment .” 295 F.3d at 655. PPG’s argum ents a re well-s uited f or
an argum ent before a jury, but they are irr elevant

to our cons iderat

ion in t he present posture of this case.

A lte rn ati ve ly, PPG appe ars to contend that we shoul d disre ga r d certa in categories of evidence, from various pe riod s of time, because such e vidence does not in is olati on lead i nexorably to the

co nclu sion that PPG entered into a n agree men t. Tr. of

Oral Argument 25. PPG argues, for example, that competitors’ pos sessi on of each other s’ pri ce incr ea s e
anno unce men ts or meetings a mon g
com petit ors ’ exec utives c anno t suff ice to pre clude summary j udgment. To be sur e, the mere presenc e of such evi dence does not require a court to den y summary judg men t. In In re Bab y Fo od , w e observed that

“[w]e do not bel ieve that the

mere p osse ssion o f com petitiv e memoranda is evidence o f conce rt e d acti on to fix prices. ” 166 F.3d at126. But the price- exchange evidence i n In re Baby Food was far less compe lling tha n in this

case. The In re Baby Food plaint iffs reli ed

u pon testimony of com petitors’ pri c e information gathere d by l ow -le vel sal es emp lo yees in unsy stemati c fashion

. Plaintiffs pointed to a f ew com petitors’

memos in sal es fil es , but there was no evidence of how the documents got there. Ad diti on al evi den ce d ocu mented s ome
awareness of c om petitors’ price increase plans. Notably , the se scraps of evidenc e of foreknowledge were not corr elat ed to any actual concert ed p ric e incre ase ac tivity

am ong all co mp etito rs.

We mad e t wo salient p oints in reviewing this evidence and rej ecti ng the infere nc e of

agreement. First , we noted that price di scussi on among low level sales peop le has little p roba tive w eig ht ; we distingu i shed the far

differe nt si tuati on whe re uppe r l evel execut ives have s ecret conversations abo ut p rice. Id. at 12 5 & n.8 (“Evidence of

sporadi c exchanges of

shop talk amo ng f ield sales repres entatives who lackprici ng authori ty is i nsuffi ci ent to survive su mm ary judgm ent.”). Second, a nd

mo re import ant, we em phasized th at “there must be evidence t

hat the exchanges of information had an impact on pricing dec ision s.” Id. at 125. The rea son f or this requir emen t i s that

exchanges of pri ce information may be compatible wit h competition, be ca us e th ey m ay “‘i ncrease
econ om ic effic i ency an d ren der m arkets
more, ra the r than l ess, competitive. ’” Id. (quoti ng United States v. United States Gypsum Co. , 438 U.S. 422 , 44 3 n.16 (1978 )). The In re Baby Food plaint iffs simp ly could not c orrel ate i nformati on exchanges with specifi c co llusiv e behav ior. Rather, they mad e the more amorphous clai m that the e xchanges of info rma tion “impacted the market as a whole.” Id.

The exchanges of i nformati on here, by contrast, are qualitatively differe nt fro m those in In re B ab y Foo d , particu larly when cons idere d in the c ontext of other

### 26

evi dence. First , the re is evidence tending to show that t

he exchanges occ ur red at a high er level of the flat glass producers’ struc turalhie ra rchy. Second, an d mo re im po rta nt ly, a finder of factc ould

reaso nably infer that t he flat glass produc ers used the i nfor mation t o implementcollus ive pri ce i ncreases ; that is, “t he exchanges of i nformati on had an impacton pricing decisions. ” A court must look to the e vidence as a w ho le and consider any s ingle pi ece of e vi denc e in the context

of other e vide nc e. See Big Ap ple BMW, In c. v. BM W of No rth America, Inc. , 974 F.2d 1358, 1364-65 (3d Cir. 199 2), cited in In re B aby Food , 166 F.3d a t 124 . So, fo r exam ple, ther e is evidence that

AFG faxed to PPG a copy of

a planned future increase that it had n o t announced publicl y, PPG an no unced an identi cal increase bef ore AFG, and the rest of the fla t g las s prod ucers follow ed w ith identi cal price increases. It wo uld take no stre tch of the imagination fora fact fi nder to in fer fr om this evidence—one piece of wh ich is PPG’s posse ssion of a “competitive memoranda ” —t hat PPG engaged in concerted action to fix prices.

In sum, here t

he exchanges of information are more ti ghtly linke d w ith concert ed behavior a nd theref ore they appear more purposi ve. Severa l of the key docu men ts emphasize t hat the releva nt price increa ses were not econo mi cally justif ie d or support able, but requi red compet i tors to hold the line. O thers suggest not justforeknowledge of a sing le comp etitor’s prici ng plans, but of the pla ns of multi ple com p etitors. Predictions of price behavior were fol lowed by ac tual price changes. The i nference of concert ed rather than in terdep ende nt actio n is therefore stro nge r. In other words, these facts take the exchanges of p r icing information ou ts ide the realm o f “mere pos sess ion .” In re Baby Food , 166 F.3d at 126

.

We need not spec ul ate as to whether something less than the evidence in this record—two rat e increa ses, for inst ance, rather

than three— wo uld suffice to deny sum ma ry judg me nt. 

### The evidence here, in its totality, i s su fficient to go to a ju ry.

B. Automotive R eplacement Glass

As descri bed above, PPG

andother automot ivereplacement glass producers supplied NAGS w ith their trucklo ad list prices for variousautomot ive repl acem

ent glass produ cts. NAGS w ould select a particular tru c kload pric e—usuall y t he truckloadprice of

the identical

OEM glass p roduct—to devise recommended reta i l prices for the product s. NAGS devis ed the

recom me nded price by

using a particular “multiplier

” for each t

ype of prod uc t. 26 

### Th e gl ass producers knew the multipli ers NAGS us ed, and were ab le to calculate backwardsto the trucklo ad p rice that NAGS had utilized. The producers would then align their truck load list prices with

26 

### The multiplier fo r domestic windshield s, for example, was 4.06. App. 2980.

### 27

thepric e tha

t NAGS ha

d used . As aresult, the au tomotive replace ment glas s pr oducers often incre ased their prices in parallel fashi on. 27



### Plai nti ffs argue that the evidence shows t hat PPG and othe r autom otive replac ement

gla s s producers a greed to raise their pr

ices. They

provi de e vidence that although it was against PPG’s official po li cy, PPG provided its tr uckload pri cing informa tionto NAGS . Plaintiffs also refer to the NAGS website, which at o ne point stated: “[M]an ufa cturers were in conflict

overtheir publi shed list prices. As a neutralparty

NAGS was asked t o assign list pric es to NA G S part numbers, establi s hing the NAGS List Price. ” App. 6444-4 5. 28 

### In add

iti on, a chart

that LOF deviseddepicts the pro cess. It indicate s

that producers gave their truckload prices to NAGS, N AGS sele cted a particular tru c kload price, the produce rs issued a “new pricing s chedul e a djusted to NA GS,” and as a r

esult “industry

pricing stabil ize[d].”App. 4939.

We und ers tand why

the NA GS Calcula tor would raise su spicion in plai ntiff s’ minds, and wh y plaintiffs woul d seek discover y r egarding PPG’ s use of the calculator. Cf. Areeda, s upra , ¶ 1435g, at 264-65 (disc us sing the us e of “pricing manuals”). But

p ublicat ion of pricing in for mati on can have a

pro-com petitive effect. As we note above, we should thereforehesita

te to re st on infer

ence of improper col l usion fro m this ambiguous,

or even pro-competitive, fact. See, e. g. , In

re Baby Food , 166 F.3d at126; Petruzzi’s , 998 F .2d at 1232. Aft er conduct

ing di sc ov er y, plaintiffs havefailedto adduce sufficie nt evidence to creat

e a genuine issue o f mate

rial fa ct. First, the

re is no

ev idence thatPPG or any othe r automot ivereplacement glass producer exertedinfluence

ove r thetruckload prices th atNAGS s elected to formulate
recom mend ed prices . And there is no 27 

### PPG, Ford and LOF increased theprice of windshields by 7% a nd tempered parts by 8%, for ex ample, in February- March of 1992. App. 5913, 5917, 71 84 . S im il ar ly, in Ja nu ar yFebruar y of 1992 they inc rease d windshield prices by 9% and te mper ed parts by 10%. App . 4899, 7 192, 71 87.

28 

### A fuller exc erpt states:

In the 1950s , manufacturers

w erein conflict over thei r published list prices. As a

n eutralparty

NAGS was askedto assign list price s to NAGS part num ber s , establishingtheNAGS L ist Price. These prices reflect ed t he industry pra

ctice o f discounting andwere based

on manufactur ers’ trucklo ad pri ces

. NAGS starte d publishingthe part

numbers with prices, establishing the ‘NAGS calculator’.
App. 6444-45 (emphasis added).

### 28

evidence—unlike the evidence w e describedabove reg arding flat g lass list p rices—that

the autom

otive re placem ent glass manufacturers agreed to ad just their li st pric es accor

ding t o the NAG S

r ecommended

pric e. We will the

refor e affirm su mmary jud gmen t on this claim.

C. Evidentia

ry Rulings

TheDistrict Court excluded severa l categories of evidence before it decided PPG ’s motions for su mmary judgment. Pla intiffs appeal fro m four of th e Distric t Court’s evidentiary

determinati ons. We addressthem in turn. 29



### 1. Fifth Ame

ndment

When plaint

iffs s ought to depose S kedd le and B ryant—the forme r LO F executi ves who were charged with cri mes and wh o alleg ed tha t LO F en gage d in ill egal antitrust acti vity —they bot h asserted their

Fifth A men dment privi lege against sel f in cri mina ti on. Th e Distri ct Cou rt denied pl ainti ffs’ moti on in which they urge d the C ourt t o co mp el Sk eddle and Bryant

to tes tify . Plai ntiff

s now chall enge the Dist rict Court’s r

uling on appe al. We re view the Co urt’ s determi na ti on for an abuse of di scretion. See United S tates v. Castro , 129 F.3d 226, 229 (1 st Cir . 199 7).

As a general matte r, a cou rt shou ld allow a witness to invoke hi s Fif th Amendment privi lege only if the hazard of incri minati on is “su bsta ntial and ‘rea l,’ and not me rely trif ling or im agin ary.” United States v. Apfelbaum , 445 U.S. 115, 128 (1 980 ) ( ci ta ti on o mi tt ed). Yet “ the tri al judg e sho uld o rder th e w itness to

answer questi ons onlyif it is per fect ly clear, from a carefulconsider a tion of all the circumst ance s in the c ase that the

answer cannot poss ibly

tend to incrim inate the wit nes s.” United States v. Washingt on , 318 F.3d 84 5, 856 (8 th Cir.), c ert. denied , 124 S. Ct. 251 ( 2003) (i nternalquotati ons and ci ta tions o mitted ); see also United States v. Yurasovi ch , 580 F .2d 1212, 1215-16 (3d Cir. 19 78) (“To supp ort a contemptcitation for a refus al to testi fy on Fi fth Amendment grounds . . . it must be ‘Pe rfectly clear from a care fu l

cons iderati on of all th e circu mstan ces in the case, t

hat the witness ( who invokes the privi lege) is mis taken , and that the answer(s) ca nn ot Po ss ib ly h ave such a tendency to incrimin ate.’”).

Plaintiffs argue that the Court erred because (1) al l releva nt st atute s of limi tati ons have run ; and (2 ) the rel evant prosecut orialauthori ties have s tate d that th ey d o not intend to bri ng crimina l charges again st Ske ddle o r Bryan t. It is irreleva nt, however, that prose cutori al 29 We do not addres s the Dist rict Cou rt’s other evidentiary rulings, such as its dec isi on to excl ude the transcript of Skedd le’s grand jury testimony. Plaintiffs opine that t

he District Court

erred wh en it exclud ed t he testimony, but they do not appeal from tha t decision. Plaintiffs’ B r. 18.

### 29

authori ties have state d t hat the y do not intendto p rose cute Sk edd le or Brya nt. See Matterof Special Federal GrandJury , 819 F.2d 5 6, 58 (3d Cir. 1987) (“[A] promise by the government not

to use t he testimony to b e co m pe lle d, e ve n i f a pp ro ve d b y a
cour t, does not strip the rec ipient of the pr o tection of that

privi lege. ”). And Ske ddle and Bryant

hav e suff iciently refute d plaint

iffs ’ s tatute of li mitations argu men t. To be sure,“if a prosecution for

a crime, concerni ng which the witn ess is inter roga ted, is bar

red by the st atute of limitations, he is co mp ell a ble to ans we r.” Brow n v. Walker , 161 U.S. 591, 598 (1896). Bu t, contr a ry t o plaintiffs’ assert ion, Ske ddle a nd Bryant have identi fied se veral st ate st atute o f limi tati ons that have n ot run. In Michigan, for example, adefendant’ s ab s ence from the state tolls th e statute of lim ita ti on for

ce rtain of th e sta te’s a ntitru st law s. See Mich. Comp. Laws. Ann. §§ 445.781, 767.24(5 ). The Distri ct Cour t did not abuse its discr etion by decl ining t o compel Sk ed dl e a nd B rya nt to tes tif y.



### 2. Skeddle’s Notes

Overthe cours e of the litigati on, plaintiff s obtained a larg e collection of Ronald Skeddle’s handwritten notes. The notes fall into two general categories: notes that LOF p rovided to pla in tiffs during disc overy

and not es t hat t he DOJ produced to plaintiffs pursuant to an order of the District

Court. App. 10746, 11154. Skeddle originally

provided the latter notes, which the parties have come to call the“Qu e en’s File,” to a grand jury empaneled

in the spring of 1 996 to investigate Skeddle’ s (and others ) allega tions of wrongdoing in the flat glass in du st ry. 30



### PPG filed two separate in limine motions seeking to e xclude bot h categories of notes, and theDistrict Court grantedits motions because it determined that the notes con ta i n “mult

iple levels of he ar sa y” and did not fall within a ny excepti on to the hearsay

rule. App. 47-48, 56-58. “[W]e review the di str ict co ur t's decisi ons to admit

or exclude evidence for abuse of discr etion, although our review is plenary as to t

he inte rpr e tati on or applic ation of a legalstandar d underly ing such a d ec isi on.” Robinson v. Cit y of Pitt sburgh , 120 F .3d 1286 , 1293 (3d Cir. 199 7) (c itatio ns o mitte d).



### a. Non-Queen’s File Notes

Plaintiffs ar gue that

many portions of Sked dle’s n otes ten d to su ppo rt their contentions that PP G a greed with its comp etitors t o increase prices on at l east two o f the three oc casions we discussed above. With respe ct to the June-Jul y 1991 price increa se, pl ainti ffs reference a May 31, 1991 n ot e that sta tes: “G le n

30 

### There is apparently some a mount of overlap bet wee n the two ca tegorie s of notes: LOFhad alrea dy pr oduced a portion of the no tes that plain tif fs also obtained as part

of the Queen’s File. App. 11154 n.3.

### 30

[Nightinga le] heard th at Glav erbec wa nts to move upwa rd s i n N. E. R e g ’s. ” App. 4567. Sim ilarly, a note that plaint iffs ar gue Ske ddle w r ote no later t han May of 1991 stat es that Jim Co ll ins, a PPG Regional Sales Manag er , “ me n tioned that PP G is looking at the possi bil ity of an in c this

sum me r.” A pp. 3 938

.
With regard to the S eptemb erOctober 199 2 price i ncrease, plaint iffs referto notes that

purport edly memoriali ze conversations Skeddle had with Glen Nightingal e, o f

Pilking ton. Firs t, a note dated February6, 1992 provides: “Cle arly G len ha s h ad di sc us si ons w AF G , Guardian, & p roba bly ind ire ctl y w PPG (cry staltow er) re p rice inc reases , and is asking me now to supply him info so t hat he can initiate more detai led dis cussions with his cont acts. ” App. 3877. And a note that plaint iffs contend perta ins t o a
mee ting Ske ddle h ad w ith G le n Nightingale on April 29, 1992 states:

Glen indica ted he wo uld make con tac ts w AFG and Glaverbel/Glaverbe c to see if he could get

them to agr ee to com e off their sill y low prices a n d if he could initiate a general price increase w /i n the n ext 2 months.

He indi ca ted he would get b ack to me to indic ate hi s f indings /effect following hi s calls. App. 458 1. A noth er no te also o stensib ly memoriali zing a conversat ion Skeddle ha d with Glen Nighting ale st ates tha t Nig hti ngale me t wi th AFG’ s De e Hubbard. The note mentions a n “incre mental i ncr ease” and st ates t hat “AFG will l ead—before Labor Day.” App. 389 1.

Si m ila rly, a note fr om a meeting Ske ddle had with LOF b oar d me mb er Tomoaki Abe and d ated November 17, 1992 co nt ai ns th e n ot at io n: “Mt gs . w PPG, Guardi an r e lic ’g, prices, etc. ” App. 10602. Fi na lly, a note that pla inti ffs contend memoriali zes a July 13, 1992 convers ation with Nightingale states:

Glen then re lated h is informat ion on N ort h American flat

glass pricing

— the inf

o came from Hub bard of AFG, and the top guy at

Glaverbel (Asa hi) who contro l Glav erbec in Canada, [illegible ] con trols AF G in the s tates

.
The indication i s th at new “tar gets” have b e e n
e stabl ished fo r AF G a n d Glaverbec in Canada @ ~7% ab ove r ecen t experienc e— letters will be forthcomi ng to the ge neral mkt place expl aining n e w prices as follows:

[chart omitt ed]

### 31

These prices shou ld go into effect 17 th Ju ly.

Glen then rel ated that Hub bard & he have “talked”

a nd have togethe r convince d P PG to take the lea d in putti ng up the price by ~7% with letter to go outin Se pt. 92, to tak e ef fec t Oc t. 1 , 199 2— with PPG taking the lead.

Ap p. 38 93.

Plai ntiff s argue tha t thes e statem ents are adm issible because the y are stateme nts of coco nspirators und er Federa l Ru le of E vid ence 801(d)( 2)(E) and therefore not hears ay. Alternat ively , the y argue that even if the statem ents are hearsayth ey ar e adm issible as statem ents against intere s t under Feder al Rule of Ev iden ce 8 04( b)(3 ).

We firs t consider

whether the Distri ct Court err ed in concl uding that the statem ents were not admissible as against intere s t under Rule 804(b) (3). A hearsay stat ement is non et heless admissi ble if (1) “the decla rant is u nava ilable as a wit nes s,” United States v. Boyce , 849 F.2d 833, 836 (3d Cir. 1988) ; (2) “the st atementis so far contrary to his pecuniary, propr i etary or penal interest th at ‘a rea sona ble pe rson in the declar a nt' s position would not have made t he statem ent un less be lieving it to be true ,’” id. (quoti ng Fed. R. Evid. 804(b) (3 )); (3) “the trus tworthi ness and

re liability of the state men t [is ] corr oborat ed by t he ‘to tal ity o f circumstances’ in the case,” id. ; and (4) the declar ant had personalknowledge (i. e., he percei ved the fact s to which t he statement relates), see United States v. Ammar , 714 F.2d 238, 254 (3d Cir . 19 83); 5 Ja ck B. We instein et al., Weinstei n’ s Federal Evidence § 804.06[4] (2d ed. 20 03). 31 The

31 

### Federal Rule of Evidence 804(b)(3 ) provides:
(b) Hearsay exceptions. The followingare not excluded by thehea rsay

rule if t he declar ant is unavailable as a witness:

. . . . (3) St at ement

agains t interest. A statement w h ich

was at the time of its makingso far contr ary to thede c larant 's pecuniary

or proprietary

interest, or

so far t en ded to subject th e declar ant to civil or criminal li ab il it y, or to render inva lid

aclaim by t he decla rant against another, that a reasonable person in t he d eclarant's position w ould not havemade

the sta teme nt unl es s believing it to be true. A state

ment tending to

ex pose the declarant to

cr iminal liability an d offered to exculpa

te the accusedis not adm

i ssible unle ss corrobora tin g

### 32

second and th ir d requir ement s are “somewhat redundant” and o ften require “‘a sensitiv e ana lysis of the ci rcumstance s in which t he statement was made and the precise na tu re of the stat ement.’ ” Boyce , 849 F.2d at 836 (quoti ng United States v. Palum b o , 639 F .2d 123, 12 7 (3d C ir. 1981)); see also United States v. Moses , 148 F.3d 277 , 280 ( 3d C ir . 1 998 ) (“Th is determi nation must be mad e ‘by viewing [the statem ent] in context ’ and ‘i n light of all the s u rroundi ng circumst ances.’ ”) (quoti ng Willi amson v. Unite d States , 512 U.S. 59 4, 603-60 4 (1994 )).

Here, the D istrict Co urt c o ncluded that Skeddl e’s state ments wer e inadmiss ible be cause the y “have not been corrobor ated by the tota lit y of t he circu ms tanc es.” App. 47. Bec ause this was the total of the District Court’s a na lys is, the precis e basis for thi s con clusi on is unclear. In its in limine motion befor e the Distri ct Co ur t, PPG 

### appearsto have offered three reasons w hy th e tot ality of th e circumstances do n ot corrobo rate Skeddle’s statements: (1) actual even ts did

no toc cur precisely

as the notes indicated they would (e.g. , PPG did not “lead” the Septem ber1992 price increas e); (2) Skeddle’s notes tend to implicat e othe rs besides himself; and

(3) Skedd le may

not havewritte

n thenotes contempo raneously with the events he descr

ibed in the

m. App. 10748-50.

The first t

wo factorsdo not sufficiently impugn

Skeddle’s statements. To the c ontra

ry , dis cre panci es betwe e n Skeddle’s stateme

nts and later act

u al events cou ld t end to reinf orce their

ve ra ci ty; stateme

nts that exactly

mirrored whatoccurred would arguably be m ore
su sp ect. And there i s no per se rule that statements implicating a

no the r person in misconduct

are not against the inter

es tof thedeclarant. See Moses , 148 F.3dat 280. We do not ag ree with PPG’s assertion that the statem ents, which relate th e inculpatory

state mentsof hi s superiors (such as Night

i ngale), do n ot also inculpate Skeddle. Skeddle was t he Preside nt of LOFat the t

ime of t he alleged

co ns pi ra cy. Discussions to increase price s andSkeddl e’ s knowled ge of tho se discussi o ns blanket him with antitrust li ab il it y. Indeed, such liabilitylike ly forms thebasis for Skeddle’s invocatio n of his Fifth Amendm

ent privilege again st self incrimination.

We agre e, how ever , tha

t a find ing that S keddle’s notes wer e no t contem poraneou s would su pport a conclusi on that the sta teme nts are not reliable or corroborated by th e circumsta nces c l early i n dicate t h e trustworthin ess o f the statement.

Fed. R. Evid. 8 04(b)(3). W e note that the Confro nta t ion Clause r aises som e additional issues about ad missibil it y of such testimony

in a criminal

case, but those concernsare ir

releva ntin this civil

case. See Crawford v. Washington , 123 S. Ct. 1354 (2004).

### 33

circumstances. Sked dle left LOF under a cloud of mutual disaffectio n

. Consequen tl y, documen ting L O F wrongdoing during a time when LOF was alleging that Skedd le himself had engaged in wrongdoing would te nd to impugn Skeddle’s motive s and ther efor e a lso the relia bilityof the statements. Bu t it is n o t clear th a t the District Court excl uded Skeddle’s notes because it found that they

were not con temp oraneous. M oreover, it i s not clear that the

record s upports such a conclusi on; on their fa

ce, many of the notes give no indication that they were ex post fabricatio ns.

The District Court ’ s summar y disposit ion of PPG ’s in limine motion hinders our ability to determine wheth er it abused its discretion. Cf. Becker v. ARCO Chemical Co. , 207 F.3d 176, 181 (3d Cir. 2000) (“Where, however, the district court fa ils to explain its groundsfor deny ing a Rule 403 objection and its r ea sons for doing so are n ot o therwis e apparent from therecord, there is no way to re view its discretion.”). Since we c onc lude that a jurycould find an agreement existed even absent Skeddle’s n ote s a nd we wo uld

rema nd on that basis a lone, we believe t

he bestcourse is to allow the Distr ict Court to consider these evident

ia ry matt ers in t he firstinstanc e. We will ther efore remand theDistrict Court’s dete rmi nation that Skeddle’s statements were not ag ainstself interestso that the Co urt can consid er its rulings in light of our decision and more fully explain any bases for its ru lings. 32

Si m ila rly, w e will al so remand the Distri ct Cou rt ’s determi nation t hat the statem ents in Sked dle’s notes were not state men ts of co-conspi rator s. “I n order fo r
an out-o f-cou rt statem ent to b e adm issible pursuant to Ru le 801(d)(2) (E), t he dist rict court must find by

a prepondera nce of the evidence that: (1) a conspir acy e xist ed; (2) the declar ant and the party against whom the stat ement is of

fered were members of the conspir acy; (3) the stat ement was made in the course of the conspi racy ; and (4) the stat ement was made in furtherance of t he

con spira cy.” Un ited Sta tes v. E llis , 156

32 

### In this regard, the Distr ict Court should determ

ine whethe

r, beca use the statements at issue w ere diary entries, Skeddle believed that they would be seen by anyone. This may

bear on whether they qualify as st at ements against interest. See Zenith Rad io Corp. v . Mats us hita Electric Industri al Co. , 505 F. Supp. 1190, 1259-60 (E.D. Pa. 1981), issue aff’d In re Japanese Electronic Pro ducts Antitru st Litigat ion , 723 F.2d 2 38, 3 00 (3d Cir. 1983), rev’d on othe

r grounds sub. nom Matsushita Electr

ic Indust

rial Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986). We do not categ orically hold that d iary entries cann ot sa tisfy the req uire me nts of Rule 804(b)(3 ), s ee Walker v. Lockhart , 763 F.2d 942, 951 n.18 (8th Cir. 1985) (en banc), but we do believe that a s earching inquiry is appropriate here, In re Japanese Electronic Pro ducts , 723 F.2d at 300.

### 34

F.3d 49 3, 496 (3d Cir. 1998 ). 33

Here, the Dist

rict Court dete rmined that plaint iffs had not

sati sfied t

he second requ ireme nt. It conc luded th at the stat emen ts in Skeddle’ s notes were not adm is sible as co -con spirato r statem ents because “plai ntiff

s have fa iled to adduce suff icie nt e vidence that PPG was a coc onspiratorin the a lleged price-f ix in g conspira cy. ” App. 48. 34 In other words, although the C ourt co ncluded that there

was evid enc e tha t a co nsp iracy e xiste d, see app. 46, it found that there was insuffi cient evide nce that PPG was a party t o t h e
con spira cy.
It was pl ainti ffs’ burde n to show by

a prep onder ance of the evi dence that the stat ement s in Skeddle’s notes were made

in the cou rse of and in furt herance of a conspir acy of which the decl arant and PPG

were me mb ers. See United States v. Mc Glory , 968 F .2d 309, 33 4 (3 d C ir. 1992) (citing B ou rja ily v . Unite d States , 483 U.S. 171, 175 ( 1987)); 5 J ack B. Weinst ei n et al., Weinstei n’s Federa l Evidence § 801.34[ 6] [a] (2d ed . 2003). And it was the D istrict Co urt’ s ro le to determi ne whether pla inti ffs satisfied their burden. See B our

jaily , 483 U.S. a t 175; Amm ar , 714 F.2d at 247 n. 5. In maki ng this f act ual determin ation, a district court is not bound by the r ules of e vid enc e. See Bo urjaily , 483 U.S . a t 1 78- 79; Fed . R. Evid. 104(a). Thus a dist rict court ca n consider hears ay and o ther ina dm issible evidence. Se e M cGlory , 968 F.2d at 334. 

### And it must consider th e cont ent of the al leg ed coconspirato r statement as well, although the s tatements requir e independent

corrobora tio n

. See Fed. R. Evid. 801(d)(2)(E) (“The c o ntents of t he state ment shall be considered but are n ot alonesuffi cien t to est

ablish . . . the existence of

the conspi

racy and the participatio n therein of the decl arant a nd thep ar ty against whom the statement is offered . . . .”).

The Court’s summa

ry disposit ion again hampers our revi ew of its decision for an abuse of discretion, however, which is thestandardof review w e must apply to its Rule 8 01(d) (2)(E) determinations. S ee, e.g. , United States v . Local 5 60 (I .B.T.) , 974 F.2d 315, 337 (1992 ). Insofa r as the Courtbased it s deter

minat ion on a conclusi on that there was insu ffic i ent 33 There is no require m ent that the declar ant be speaking fr om personal knowledge. See United States v. Ammar , 714 F. 2d 238, 254 (3d Cir. 1983); 5 Ja ck B. W eins tein e t al., Weinstei n’s Federa l Evidence § 801.23 [2] (2d ed . 2003).

34 

### The District Court charact erized the admi ssi bility of coconspirato r statements as an “exception to the hearsay rule.” Rules 803 and 804 s e t forth excepti ons to thehearsay rule; that is, they explain when sta tem ents are admissible

even though they qualify

as hearsay. Rule 801(d), however, sets forth statementsthat

areadmissible bec au se they do not constitute hearsay, including statements “by a coconspi

rator of aparty during the

course andin furthera nce of the conspiracy .” Fed. R. Evid. 801(d)(E).

### 35

evidence from which a j ury could conclude th at P PG entered into an agreem ent to fix pric es, the

District Court erredforthe reasons we set forth above. But simply becausea j ur y couldfindby a prep on deranceof the evidence that PPG enteredinto a consp iracy, it is not the case that the District Cou rt mustfind that plaintiff s showed by

a pr epon derance

of theevidence thatPPG entered into an agreemen t. An y pa

rticul ar factua l determinatio n requires making a number of more particula r ized fac tua l determ inationsand weighingthereleva nt importance

of those det

erminations. And two factfinders co uld feasibly reach different conclusion, especial l y under a prepond er ance of the evidence sta ndard. To be sure, howeve r, “the Federal Rules of Ev idence are to be liberally c onstrued in favor of admissibility .” United Statesv. Pelullo , 964 F.2d 193, 204 (3d Cir. 1992).

Because we will rema

nd plaintiffs’ flat glass price fixing claimfor further proceeding s, we a gai n conclude t hat the best cours e is to rema nd the District Co ur t’s determination that th e statements in Skeddle’s notes wer

e not coconspirator statements. See In re Japanese Electr onics Products Antitrus t Litiga tion , 72 3 F .2d 238, 263 (3d Cir. 1983 ) (remanding Ru le 801( 2) (E) determ ination t o b e reconsidered), rev’d on othe r grounds sub.

nom. Matsushita Electric Industri al Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986). Thus the D istrict Court can consider whether the statem

ents in Skeddle’s notes

arecoconspir

ator st atem ents wit h the benefit of our discus s ion of the evidence tendingto implicate PPG in a pric e-fixing

co ns pi ra cy, and can furt her expla in any bases it might

have for it s reas oning. 35



### Fi na ll y, we note tha

t many of the notes contain multiple l eve ls of he ar sa y. S ee, e.g. , Carde

n v. We stinghouse

El ec

. Corp. , 850 F.2d 996, 10 01-02 (3d Cir. 1988); Fed. R. Evid. 80 5. On e note states, for example, t

hat Nighti ngale “re late d” that he and an AFG executive “convi nced PPG to take the le ad in putt ing up the price by ~7% with letter to g o ou t in Sep t. 92, to take effe ct Oc t. 1, 199 2— with PPG taking the lead. ” App

. 389 3. Th e note itself (Skedd le’s st at eme n t) and N ightingale’s assert ion that he convinced PPG to take the lead in increasi ng prices a r e both outof-court statem ents tha t plain t iffs se ek to

us e to prove t

he trut h of the matter asserted. Either

or bo t h might be adm issible as statem ents of coco nspirators

as well as s tate m ent s aga inst intere st. 

### Again, we think the District Courtshould make these determinations in the first in stance, taking into accou nt ou r

3 5 

### P PG argues that the District Courtconcluded that the statements in Skeddle’s notes werenot in furthera nce of any conspira cy , ostens ib ly bec ause—as PP G a rgues—Skeddle did not cr eate t he not es at the same

time as t

he even ts h e purports to descr

ibe in the m. But not

hing in the Court’s d ecision indicates th at this

was abasis for its determinatio n that t h e
s tatements were inadmissi ble. The District Court wi ll surely

consider

PPG ’ s arguments in this reg ard on remand

.

### 36

discuss ion in thisopinion.

b. Queen’s File Notes

The District Court concluded that thestatements in the Queen ’s File notes, likethe statements in the oth erSkeddle notes, were not ad missi ble a s coconspir ator stateme n ts be caus e “pla intiffs havefailed to adduce sufficie nt evidence that PPG

was aco-conspira tor in thealleged price- fixing conspiracy.” App. 57. It al so co ncluded th at the statements

were hearsa

y a nd the Queen’ s File was not admissible under the statement against interestexception b ecause “the statements containedtherein are n ot contrary to Skeddle’s pecuniary

or penal intere st” and because “the docum

e nts’ trustworth iness andrelia bility are ques tionable

given the totality of the cir cumst ances. ” App. 57. 36



### Sinc e this wasthe sum of the District Court’s reason ing, we t urn to PPG’s arguments before the District Court to discern the bases for the Court’s decisi on. Cf. United States v

. Himm elwright , 42 F.3d

777, 781 (3d Cir. 1994) (looking to whet her base s for dis tr ict court’sdecisi on was “appa rent from the record” w here the cou rt d id not explain the groun ds for its decisi on). PPG argued that most of the n otes in the Queen’s File “ we re written after Mr. Skeddle’s termination as c h ief executive officer of LOFon May 10, 1993, when he, Edward Bry ant (the

n LOF’s head of manufacturingop er at io ns ), an d D ar ryl Costin (then LOF’s head of technical operations) were fir

ed am idst allegati ons of actionable self -dealing.” Ap p. 11 154. Many of thenotes appear, on their face, to supportPPG’s contention. They are

writ ten in the third-person, for example, andthey r

ef er t o events that p ost-date Skeddle’s termination. Se e, e.g. , Supp. App. 437. One note, for instance, refers to the“s umm er of 1993” in the past tense. App. 11154.

If theDistrict Court concluded that thenotes wer

e not conte

mpor a neous, it could have conc luded that th e statements containedthe rein were not in furtherance of a conspir

acy or corrobor

ated by th e totalityof the circu mstances; that is, it could have conc luded that th e statements
were not admi ssible

as coc ons pirator statements or stat

ement s against intere st. If

we could concl

ude that t he District Court excluded all the Queen’s File notes on that basis, we would affirm

theDistrict Court’s decisi on. But P P G conced es that not all theQueen’s File n ot es appear to be noncontemporane ous. See PPG Br. 94, Tr. of Oral Argument

46. We will there fore 36 

### The District Court also concluded that the Queen’s File and non-Queen’s File notes did not

fall wit hin thebusiness

re cor ds excepti on of Rule 803(6). App. 47, 56-57. And the Cour t foun d th at the “Q ueen’s File does no t qualify as a n
a dmis sionby a part

y opponent under Rules 801(d)(2 )(A), (B), (C), or (D).” App. 57-58. Plaintiffs do not argue that the Dist rict Court

erred in thes e determinations, and we ther efore do not address them.

### 37

rema nd the Distr ic t Court’s decisio n to exclude the Queen’ s File note s for the

same reasons we remand its determ ination to exclude Skeddle’s other notes. We think it bestfor the Dis trict

Court to have theopportu nity to make these evidentiary determ inationswit h the benefit of our discussion here.

3. Evidence Concerni ng OEM Glass

As we 

### expl ain ed above, PPG a nd others fabricated flat glass i n to produ cts for use in automobiles . S ome of those products—called“origina l equipm

ent manufacturer ” gla ss ( “OE M glass”)—were

fabricated for use in new automobiles. Others w ere fabr icated for

use as automot

ive repl acem

ent part s. The latterpro duc ts—c alled auto mo t iv e replac ement

glass—arethesam

e as OEM glass produc ts, but the ma rket s for t he two are distinct.

In order to prove t hat PPG

co nspiredto fix the p rice of flat g lass, plaintiff s offered evidence

that the y a rgue shows that PPG co nspired with LOF to fix theprice of O EM glass pro ducts. Sp ec ifi ca lly, plaint

iffs ar gue that

meetings and conversations occur red between Edw ard Bryant— w ho was LOF’ s Executive Vice Presid ent in charge of the firm’s flat

glass, automoti ve repla cement glas s , and OEM business es—and Frank Archinaco (the head of PPG’s automoti ve replac ement glass and OEM business es ). The se meetings a nd discussio ns we re p rivate and o ccurre d, acc ordin g to plai nti ffs, at “opport une times” for pri ce fixin g.

The Distri ct Court c oncluded that wh ile the evi dence con stit uted “other bad acts” evidence under

Federal Rul e of Evidence Ru le 404 (b), it wa s adm issible for other a ccep table purposes ( e.g. motive, op po rtu ni ty, or in tent ). Yet the C ourt

ex cl uded the evi dence because i t det e rmine that t

he evidence’ s probative value wa s sub stantially outweighed by the danger of unfair prejudic e. App. 54-55. This is a standar d Rule 403 balance , which

we revie w wit h “s ubs tanti al de fere nce .” McQ ueeney v. Wilmingt on Trust Co. , 779 F.2d 91 6, 922 (3d Cir. 1985 ). 37

While evidenc e that

PPG an d LOF conspir ed together i n the OEM m arket

wo uld be rele vant to plaintiffs’ clai m that PPG also cons pired t o fix pri ces in t he marketfor flat

gl ass , see In re High Fructose Corn Syrup , 295 F.3 d a t 661 (noti ng that

defe ndan t conc eded to having

37 

### PPG also arg ues that we sho uld affirm the Distric tCourt’s decision because a r ea so na bl e j ur y co uld not conclude that PPG committed the “other bad acts”—con spi ring in the O EM market—that

plaintiffs argue

tend to show that PPG conspired to fix the prices of flat glass. See Huddleston v. United States , 485 U.S. 681, 689 (1988). The District Courtdid no t e xclude the O EM glass evid ence on tha

t bas is, howeve

r, a nd we need not address PPG’s argumen tsince we affirm on other grou nds.

### 38

fixed prices on re lated p rodu cts during the

sa me time fr ame as the al lege d conspiracy), Ar eed a, supra , ¶ 1421, at 145, plaintiffs’ evidence here is not p articular ly probati ve of an y O EM gl as s c on sp ira cy. The weakness of this evidence also miti gates any dange r of unf air pr ejudic e. But we cannot saythat t he D i strict Court abused its discr etion i n w eigh ing these counterva ili ng considerations, and w e w ill therefore affirm the Cou rt’ s dec ision to

exc lud e the OE M glas s ev iden ce.

III. Conclusion

We will affirm the Dist rict Cou rt’s decisi on granti ng summary j udgment on plaintiffs’ clai m thatPPG conspired to fix the pri ces of aut omotive re placement glass. We conclude, how ever, th at there is suffici ent evidence i n the rec ord—not taking into ac co u nt evide nce the Dist rict Cou rt exclu ded— from wh ich a re ason able jury co ul d f

in d tha t P PG c onspi red to f ix the prices of fla t glass. W e w ill th erefor e
reverse the Dist

rict Court’s j udgment and remand for further p roceeding s. In additi on, we will aff irm the Dist

rict C our t’s decisi ons decli ning to compel Ske ddle and Bryant to testify and excludi ng evi denc e re gar din g OEM glass. But we will remand the C ourt’s d ecision to exclude Skedd le’s notes so that the C ourt

can consider

its ruli ng in l i ght of our opini on here and have a furthe r opp ortun ity to expla in the base s for its decisions.