In Re: Aftermarket Filters Antitrust Litigation

Filing 866

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 1/20/2012: Mailed notice (gds, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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IN RE: AFTERMATH FILTERS
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ANTITRUST LITIGATION
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This Document Relates to the Direct
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Purchaser, Indirect Purchaser, Gas
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Retailer and Florida Actions
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Master Docket No. 08 C 4883
MDL Docket No. 1957
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
In this multi-district litigation, three putative classes of plaintiffs have claimed that seven
manufacturers of automotive filters conspired to fix prices. The nature of the case is thoroughly
discussed in this court’s previous opinion denying defendants’ motion to dismiss.1
Defendants have filed two motions concerning plaintiffs’ former prime witness, William
G. Burch (“Burch”). The first (docs. 792, 793) seeks to exclude Burch’s testimony from
evidence and to preclude plaintiffs from relying on it in discovery. The second (docs. 795, 796)
seeks to bar Burch’s tape recordings from evidence and to preclude plaintiffs from relying on
them in discovery. All parties have filed extensive briefs and exhibits in support of and in
opposition to these motions. Although the court had set the motions for hearing on January 20,
2012, after reviewing the voluminous materials submitted by the parties, the court concludes
there is no need for a hearing. The motions are denied.
Defendants base their request to excise all mention of Burch from this case on his
confessed criminal conduct in fabricating a “smoking gun” document, “doctoring” tape

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In re Aftermarket Filters Antitrust Litig., 2009 WL 3754041 (N.D. Ill.).

recordings he surreptitiously made of telephone conversations with representatives of certain
defendants, perjuring himself in depositions and otherwise, and lying to the United States
Department of Justice Antitrust Division (“Antitrust Division”), among other misdeeds2 –
apparently in a misguided attempt to extort money from his former employer, Champion
Laboratories, Inc., that had fired him for embezzlement.
That Burch has made a number of what might charitably be called poor decisions is
undisputed. Indeed, in May 2011 he pled guilty to a felony charge of making false statements to
the Antitrust Division in violation of 18 U.S.C. § 1001. Equally undisputed is the
inadmissability of some of the evidence Burch had previously alleged supported his claim of
price fixing among the defendants, such as the “smoking gun” document and portions of the
tapes, the integrity of which was destroyed by Burch’s “doctoring.” Plaintiffs disclaim any
intention to offer these materials into evidence.
Nevertheless, plaintiffs intend to use the tapes and the leads provided by Burch to prove
that defendants did in fact fix prices in the automotive filter market, despite the taint on the
evidence supplied by what used to be their chief witness. Portions of the tapes appear to be
unadulterated, and although Burch’s apparently selective pauses and decisions to record only
portions of certain conversations may result in the exclusion of some or even all the tapes from
evidence, the parties and their forensic experts are in agreement that the tapes in fact represent
portions of actual conversations between Burch and representatives of certain defendants. The
“doctoring” (more like selective recording) of the tapes indicates the need for more rather than

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These include filing two fraudulent qui tam actions as well as a civil suit against
Champion for retaliatory firing, along with destruction of evidence, and covering up his
misdeeds after they were detected.
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less discovery to determine whether any portion may be admitted into evidence and to examine
the parties to the taped conversations as to the accuracy and completeness of the recordings.
Even illegally obtained tape recordings, inadmissible under 18 U.S.C. § 2515, can be used in
discovery. Massaro v. Allington Fire Dist., 2003 WL 23511732, *1(D Conn. May 30, 2003).
In short, the fact that Burch may be a scoundrel and a duplicitous, opportunistic liar (and
convicted felon) does not disqualify him as a witness or exclude the information he has provided
from use in discovery and perhaps even the trial of this case. It is quite common, for example, in
criminal proceedings for the government to base its case on the testimony of “flippers,” codefendants who admit complicity in all sorts of criminal activity. Indeed, “a conviction may rest
solely on circumstantial evidence, . . . even when the evidence at trial is totally uncorroborated
and comes from an admitted liar, convicted felon, large scale drug dealing paid government
informant . . ..” United States v. Beverly, 913 F.2d 337, 358 (7th Cir. 1990) (internal citations
omitted). In white collar criminal cases, such witnesses are often admitted or convicted felons
who participated in coverups and serious fraudulent conduct going to the heart of the case. See,
e.g., United States v. Sanchez, 2009 WL 5166230 (N.D. Ill. 2009).
Defendants appear to be arguing primarily that because plaintiffs had previously centered
their case around Burch’s testimony – indeed, this court relied on that testimony in denying
defendants’ motion to dismiss – plaintiffs should be sanctioned by excluding any evidence
supplied by or through Burch from both discovery and trial. “No fraud is more odious than an
attempt to subvert the administration of justice.” Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 251 (1944) (Roberts, J., dissenting). As this court has held in dismissing with
prejudice a case in which the plaintiffs engaged in seriously fraudulent conduct in an attempt to

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obtain favorable evidence, misconduct by a party constitutes “an affront to this court and the
entire civil justice system,” justifying severe sanctions. Greviskes v. Universities Research
Ass’n. Inc., 226 F.R.D. 595, 600 (N.D. Ill. 2004).
The fallacy of defendants’ reliance on the rationale of these and similar cases lies in the
fact that the courts in those cases were sanctioning parties who misbehaved, rather than
witnesses who did so. As noted above, not all witnesses are squeaky clean; some are quite to the
contrary. When discovery is complete and this case is being readied for dispositive motions or
trial, the court will determine in the context of motions in limine what evidence will be allowed
into the record, and the trier of fact will determine the credibility of all witnesses, perhaps
including Burch himself. To do so now would be wholly premature.
For these reasons, the defendants’ motions to exclude Burch’s testimony and tapes and
preclude plaintiffs from relying on them during discovery are denied. The stay of discovery that
had previously been issued is hereby vacated.
ENTER:

January 20, 2012

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Robert W. Gettleman
United States District Judge

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