Fenerjian v. Nong Shim Company, Ltd et al
Filing
874
Preliminary Views on Final Jury Instructions. Signed by Judge William H. Orrick on 12/07/2018. (wholc3, COURT STAFF) (Filed on 12/7/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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IN RE KOREAN RAMEN ANTITRUST
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LITIGATION
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Case No. 13-cv-04115-WHO
PRELIMINARY VIEWS ON FINAL
JURY INSTRUCTIONS
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United States District Court
Northern District of California
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To focus the parties in advance of the jury instruction conference this afternoon, I will
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reiterate my basic approach to these instructions and provide some tentative conclusions. I am not
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foreclosing argument on any matter.
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I will start from and closely adhere to the Ninth Circuit Model Civil Jury Instructions and
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the ABA Model Antitrust Instructions. Deviations from those instructions will be few and only as
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necessitated by the particular posture of this case and intervening case law, for example Arandell
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Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623 (9th Cir. 2018). I am not inclined to
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give instructions that are not contemplated by or included in the model instructions unless there is
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a compelling need to do so given something unique about the posture of this case.
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Instructions Rejected for Preliminary Instructions. Instructions that I rejected for the
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Preliminary Instructions – either in favor of the model instructions or as unnecessary – will be
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rejected for the final instructions.
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Duplicative Instructions. I will not give instructions that are duplicative of other
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instructions. For example, the proposed “Inconsistent Statement” instruction is duplicative of the
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agreed-to Witness Credibility instruction and will not be given. Also, the Cartwright Act
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instruction will not be given in light of the materially similar Sherman Act instruction.
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Arandall. The jury instructions will be conformed to represent the Ninth Circuit’s holding
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in Arandall that for purposes of anticompetitive intent, anticompetitive purpose will be presumed
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for a wholly-owned subsidiary. As to the separate element of knowledge, recognizing that
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plaintiffs can show purpose or knowledge and do not need to prove both, I am inclined to agree
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with plaintiffs that under California law (as under Wisconsin law) knowledge can be inferred if
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evidence shows an overlap among the directors and managers of the parent and subsidiary. As to
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evidence of significant coordinated activity with respect to the anticompetitive acts, that evidence
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can be satisfied by sales of the price-fixed products in the domestic market by the subsidiaries,
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even if the subsidiaries contend that no direct evidence exists showing their knowing agreement to
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United States District Court
Northern District of California
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join and participate in the alleged price-fixing.
Impact on Domestic Market. As to impact on the domestic market of the alleged
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conspiracy, I intend to stick to my position that the FTAIA is irrelevant to this import case.
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However, I am inclined to follow Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd, 299 F.3d 281 (4th
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Cir. 2002) because the participants, acts, targets, and effects involved in the asserted antitrust
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violation are primarily foreign and provide a basic Hartford Fire instruction.
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Missing Witness Instruction. I am not inclined to give this instruction unless plaintiffs
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identify material unproduced witnesses who were in the control of specific defendants (and not
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unavailable for disclosed reasons, e.g., health concerns) and who were not brought to trial.
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Korean Law. Other than the already given KFTC/Korean Supreme Court instruction, I am
not inclined to give any other instruction on Korean Law.
Document Preservation. I am inclined to give an instruction that none of the defendants
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violated any duty under U.S. law to preserve documents (e.g., the first two paragraphs of Disputed
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Instruction No. 47), but not inclined to instruct any further.
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Damages. I will generally follow the ABA Model Antitrust Instructions. I will not revisit
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defendants’ positions as to duplicative damages and pass-on, and defendants’ proposed
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instructions regarding the same (e.g., Disputed Instruction Nos. 60, 72) will not be given. Also,
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the damages instructions will allow for aggregate damage awards. Language about “class
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members” is generally not appropriate but reference to IPPs and DPPs is. Neither Spokeo, Inc. v.
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Robins, 136 S. Ct. 1540 (2016) nor any other recent authority identified require departure from the
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model instructions on damages.
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Consequently, I do not intend to give Disputed Instructions 9, 13, 14, 18, 19, 20, 21, 23,
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Also, I have some questions:
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If the plaintiffs are still pursuing an agency theory, what is wrong with 31?
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Why do we need a separate instruction on antitrust injury (50) if we give one on causation
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(48)?
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Dated: December 7, 2018
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United States District Court
Northern District of California
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William H. Orrick
United States District Judge
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