IN RE CAPACITORS ANTITRUST LITIGATION

Nature of the order

This was a pretrial order governing the jury trial of the direct purchaser plaintiffs (the “DPPs”). It established procedures for the final pretrial conference, jury selection, jury instructions, courtroom conduct, evidence, witnesses, and motions during trial. It did not decide whether the defendants violated the antitrust laws.

Trial procedures and criminal-case evidence

The court scheduled a final pretrial conference for February 27, 2020, and said it would provide proposed jury-selection questions and jury instructions. People at counsel tables generally had to remain seated and silent during testimony and could not visibly or audibly react to witnesses. The court could remove individuals who violated those rules. Motions could not be filed during trial without the court’s advance approval.

The parties were ordered to meet and confer about facts from certain defendants’ guilty pleas and plea agreements. They also had to address the fact that Holy Stone Holdings Co., Ltd. had pleaded guilty but was not a named defendant in the trial. The amount of any criminal fine and the length of any prison sentence were excluded from evidence, although the fact that a fine or sentence was imposed could be admitted. Other documents from the criminal cases were excluded, subject to possible use for impeachment.

Co-conspirator statements and Fifth Amendment evidence

Before offering co-conspirator statements—statements that may be admitted because they were made by a participant in the alleged conspiracy during and in furtherance of it—the DPPs had to file a detailed proffer two trial days in advance. The proffer had to identify the speaker and substance of the statement and explain why the speaker was a co-conspirator and why the statement qualified for admission.

The DPPs had to follow the same schedule for proffers seeking an adverse inference from a witness’s invocation of the Fifth Amendment. Those proffers had to identify the deposition question and answer, the basis for attributing the answer to a defendant, supporting independent evidence, and the substantial need for the inference. Defendants could not respond to either type of proffer unless the court requested a response.

DPPs’ motions in limine

A motion in limine is a request to decide before trial whether particular evidence or arguments may be presented to the jury. The court ruled as follows on the DPPs’ motions:

- Motion No. 1 was granted, excluding evidence or argument about representation agreements or arrangements between the named plaintiffs and class counsel. - Motion No. 2 was granted, excluding arguments that the plaintiffs were not injured or had reduced damages because they could pass overcharges to customers, and arguments that defendants faced multiple damages for the same overcharges. - Motion No. 3 was granted, excluding the amounts and terms of prior settlements, except that settlement-cooperation provisions could be offered to show a witness’s bias or prejudice. - Motion No. 4 was granted, excluding references to the class’s right to recover treble damages, attorney fees, and costs. - Motion No. 5 was granted, but the court said it might revisit the issue if evidence showed that the DPPs knew of the alleged conspiracy and could have bought capacitors from suppliers or substitutes outside it. - Motion No. 6 was granted, excluding expert testimony about whether a conspiracy existed. Experts could testify about whether conduct and market conditions were consistent with a conspiracy rather than a competitive market. - Motion No. 7 was granted, excluding arguments or evidence that price fixing had pro-competitive or pro-consumer benefits. - Motion No. 8 was denied for witnesses more than 100 miles from trial or outside the United States. The opinion text provided does not include the rest of that sentence. - Motion No. 9 was granted, excluding evidence or argument inconsistent with plea-agreement terms or factual admissions in those agreements. - Motion No. 10 was granted, excluding evidence or argument about foreign regulatory actions, including raids and investigations. - Motion No. 11 was granted, excluding evidence or argument that the U.S. Department of Justice closed its film-capacitor investigation without charges or that certain defendants were not criminally charged in its electrolytic-capacitor investigation. The court said such evidence might be allowed in rebuttal if the DPPs mischaracterized the scope of guilty pleas or plea agreements. - Motion No. 12 was denied. The court held that the Foreign Trade Antitrust Improvements Act’s limitations were part of the merits of the Sherman Act claim and were for the jury to consider. The DPPs would have to prove at trial, by a preponderance of the evidence, that defendants’ conduct violated the Sherman Act and was not outside that statute’s scope under the Foreign Trade Antitrust Improvements Act. The court’s earlier legal interpretations about import trade, import commerce, and the statute’s domestic-effects exception would control, but the earlier order had not decided the relevant facts.

Defendants’ motions in limine

The court ruled as follows on the defendants’ motions:

- Motion No. 1 was granted as to sentencing memoranda, transcripts, and other documents. - Motion No. 2 was denied as to rebuttal evidence concerning guilty pleas, but the DPPs were limited to the specifics of the plea agreements. - Motion No. 3 was deferred pending the required proffers. - Motion No. 4 was denied, but the DPPs could not use pejorative terms such as “thieves,” “criminals,” or “felons.” They could use terms such as “cartel,” “cartelists,” “conspirators,” and “price fixers.” - Motion No. 5 was deferred pending proof at trial about the nature and scope of subsequent remedial measures. - Motion No. 6 was granted in part concerning evidence about AVX’s European conduct. Evidence relating only to Europe could not be used against AVX to show a propensity to conspire. Evidence implicating the alleged conspiracy in the United States could be admitted, with the court deciding disputed documents individually or in groups. - Motion No. 7 was deferred pending proffers. - Motion No. 8 was taken under submission as to KEMET Corporation’s sales evidence. - Motion No. 9 was denied as to the potential AVX and Chemi-Con joint venture. - Motion No. 10 concerning Taitsu and NCC communications was withdrawn by defendants. - Motion No. 11 was granted as to evidence of foreign investigations, for the same reasons supporting the ruling on the DPPs’ corresponding motion.

Expert testimony and other matters

The court granted the Daubert motion concerning attorney Joseph P. Russoniello and excluded his proposed testimony. A Daubert motion asks the court to determine whether proposed expert testimony is sufficiently proper and useful for trial. Here, the court said the proposed testimony concerned legal issues that could instead be addressed through jury instructions. The court said it could revisit the ruling for rebuttal if warranted.

The court also ordered that witnesses would testify only once, required the DPPs to identify certain defendant-affiliated witnesses they intended to call, barred the DPPs from telling the jury that NCC and UCC shared counsel, and directed the parties to meet and confer about deposition testimony and exhibit-list issues. The parties also had to file a comprehensive stipulation covering entity names, presentation of deposition testimony, timing estimates for defendant-affiliated witnesses, and other agreed issues.

Disposition and classification

The court entered the pretrial directives and issued the specific grants, denials, deferrals, withdrawal ruling, and evidentiary exclusions described above. Because this order addressed trial management and evidence rather than deciding the underlying antitrust claims, it is classified as a procedural order.