                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2004

In Re Flat Glass
Precedential or Non-Precedential: Precedential

Docket No. 03-2920




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Recommended Citation
"In Re Flat Glass " (2004). 2004 Decisions. Paper 265.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/265


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                        PRECEDENTIAL               behalf of itself and all others similarly
                                                   situated; SUPERIOR WINDSHIELD
   UNITED STATES COURT OF                          INSTALLATION, INC., on behalf of
APPEALS FOR THE THIRD CIRCUIT                      itself and all others similarly situated;
                                                   JOVI, INC., on behalf of itself and all
                                                   others similarly situated, t/a Easton Area
               No. 03-2920                         Glass; ENGINEERED GLASS WALLS,
                                                   INC., on behalf of itself and all others
                                                   similarly situated; BAILES GLASS CO.;
        IN RE FLAT GLASS                           INTERSTATE GLASS DISTRIBUTORS,
      ANTITRUST LITIGATION                         INC., on behalf of itself and all others
          (MDL No. 1200)                           similarly situated; ORLANDO AUTO
                                                   TOP, INC.; MAYFLOW ER SALES CO.,
BRIAN S. NELSON, d/b/a Jamestown                   INC., on behalf of itself and all others
Glass Service; MEL’S AUTO GLASS,                   similarly situated; CARDINAL IG;
INC.; A. WAXMAN & CO., on behalf of                REED’S BODY SHOP, INC.; BELETZ
itself, and all others similarly situated;         BROTHERS GLASS COM PANY, INC.;
DESIGNER WINDOWS, INC., on behalf                  COMPLAST, INC.; WESTERN STATES
of itself and all others similarly situated;       GLASS, on behalf of itself and all others
MOSES MOORE ALL GLASS                              similarly situated; GRIMES AUTO
ASPECTS, INC., on behalf of itself and             GLASS, INC.; D&S GLASS SERVICES,
all others similarly situated; AAA GLASS,          INC.;GEORGE BROWN & SON GLASS
INC., on behalf of itself and all others           WORKS, INC.; THERMAL CHEK, INC.;
similarly situated, d/b/a The Glass Doctor;        MOBILE GLASS, INC., individually and
THE LURIE COM PANIES, INC.; VSTB                   as a representative of a class; JELD-WEN,
ENTERPRISES, INC., d/b/a Perfecto Auto             INC., an Oregon Corporation; JELD-WEN
Glass & Upholstery and its successors;             CANADA LIMITED , a Canadian
PORT CITY GLASS & MIRROR, INC.,                    corporation; JELD-WEN ARIZONA,
on its own behalf and on behalf of all             INC., an Arizona corporation; AVANTI
others similarly situated; JOHN HEALY,             INDUSTRIES, I N C. , a n A rizona
JR.; COUNTY AUTO GLASS, INC., on                   corporation; LAKEWOOD CITY GLASS,
behalf of themselves and all others                I N C. ;C A R O L IN A         MIRROR;
s im il a r l y s it ua te d; G ER A R D J.        ALLSTATE INSURANCE COMPANY;
CLABBERS, on behalf of himself and all             ALLSTATE INDEMNITY COMPANY
others similarly situated; KIRSCHNER
CORPORATION, INC., t/a Berwyn Glass
Company, on behalf of itself and all others
similarly situated; HARTUNG AGALITE                                    v.
GLASS CO., d/b/a Hartung Glass
Industries; ALL STAR GLASS, INC., on

                                               1
PILKINGTON PLC; PILKINGTON                     Barrack, Rodos & Bacine
LIBBEY-OWENS-FORD CO., INC.;                   2001 Market Street
AFG INDUSTRIES, INC.; GUARDIAN                 Philadelphia, PA 19103
INDUSTRIES CORPORATION; PPG
INDUSTRIES, INC.; LIBBEY-OWENS-                Eugene Spector, Esq.
FORD CO., INC.; ASAHI GLASS CO.,               Spector Roseman & Kodroff
LT D.; FORD MO T O R CO.;                      1818 Market Street
PILKINGTON HOLDINGS; ASAHI                     Philadelphia, PA 19103
GLASS AMERICA, INC.
                                               Robert N. Kaplan, Esq. (Argued)
UNITED STATES OF            AM ERICA           Richard J. Kilsheimer, Esq.
(Intervenor in D.C.)                           Kaplan Fox & Kilsheimer
(D.C. No. 97-mc-00550)                         805 Third Avenue
                                               New York, NY 10022
 Class Plaintiffs and Grimes Auto Glass,
                                               Michael D. Hausfeld, Esq.
             Appellants                        Cohen M ilstein Hausfeld & Toll
                                               1100 New York Avenue, N.W.
                                               Washington, D.C. 20005
  On Appeal from the United States
          District Court for the               Robert Skirnick, Esq.
   Western District of Pennsylvania            Meredith Cohen Greenfogel & Skirnick
    (Dist. Court No. 97-mc-00550)              One Liberty Plaza, 35 th Floor
 District Judges: Hon. Donetta W.              New York, NY 10006
Ambrose and Hon. Donald E. Ziegler
                                                     Counsel for Appellants

         Argued: June 22, 2004
                                               Paul M. Dodyk, Esq. (Argued)
   Before: NYGAARD, MCKEE and                  Peter T. Barbur, Esq.
     CHERTOFF, Circuit Judges                  Lawrence E. Buterman, Esq.
                                               Kelly A. Rocco, Esq.
      (Filed: September 29, 2004)              Cravath, Swaine & M oore
                                               Worldwide Plaza
                                               825 Eighth Avenue
Samuel Issacharoff, Esq.                       New York, NY 10019
435 West 116 Street
New York, NY 10027

Daniel E. Bacine, Esq.                         David J. Armstrong, Esq.

                                           2
Dickie, McCamey & Chilcote             CHERTOFF, Circuit Judge.
Two PPG Place
Suite 400                                      This case addresses the recurring
Pittsburgh, PA 15222                   question of what quantity and quality of
                                       evidence suffices to create a genuine issue
                                       of material fact as to one particular
      Counsel for Appellee PPG         element of a claim under Section 1 of the
      Industries, Inc.                 Sherman Act: whether a defendant entered
                                       into an unlawful agreement. Appellants
                                       contend that appellee PPG Industries, Inc.
J. Michael Murray, Esq. (Argued)       (“PPG”) conspired with its competitors to
Berkman, Gordon, Murray & DeVan        fix the prices of flat glass and automotive
55 Public Square, Suite 2121           replacement glass in the early 1990s. The
Cleveland, OH 44113-1949               District Court granted PPG’s motion for
                                       summary judgment on the ground that
      Counsel for Appellee             there was insufficient proof of an
      Edward Bryant                    agreement. We will reverse in part, affirm
                                       in part, and remand for additional
                                       proceedings.

Michael S. Sommer, Esq.
McDermott, Will & Emery
50 Rockefeller Plaza
New York, NY 10020                                   I. Background

Elliot Silverman, Esq. (Argued)               A. The Flat Glass and Automotive
McDermott, Will & Emery                          Replacement Glass Industries
18191 Von Karman Avenue
Irvine, CA 92612                              PPG manufactures sheets of glass
                                       through a method called the “float
      Counsel for Appellee             process.” Molten glass is poured over a
      Ronald W. Skeddle                bath of higher-density liquid, such as
                                       molten tin. As the glass floats on top of the
                                       bath, it is polished under controlled
                                       temperatures. Finally, the glass is fed into
                                       an “annealing oven” where it gradually
      OPINION OF THE COURT             cools and hardens. See In re Flat Glass
                                       Antitrust Litigation, 191 F.R.D. 472, 476
                                       n.7 (W.D. Pa. 1999). The glass that PPG
                                       produces through the float process—in

                                   3
various sizes, thicknesses, and tints, see          different products may be “fabricated”
Supp. App. 14 n.16; App. 634—is called              from flat glass by subjecting it to a variety
“flat glass.”                                       of processes. A substantial amount of flat
                                                    glass, for example, is fabricated for use in
          PPG and a handful of other                automobiles. Flat glass may be molded and
firms— Libbey-Owens-Ford Company                    combined with other parts to produce
(“LOF,” a subsidiary of the British glass           windshields, for example, or side and rear
p r o d u c e r P ilkington L L C) ; A F G          window s. Supp. App. 19. Some
Industries, Inc. (“AFG,” a subsidiary of the        products—called original equipment
Japanese glass producer Asahi Glass Co.);1          manufacturer products (“OEM” glass
Guardian Industries (“Guardian”); and               products)—are fabricated for sale to
Ford Motor Co. (“Ford”)—manufacture                 vehicle manufacturers for use in new
well over ninety percent of the flat glass          v e h i c l e s . O t h e r p rodu cts— calle d
sold in the United States. In 1995, for             auto motive replac eme nt glass
example, PPG acco unted for                         products—are fabricated for sale and use
approximately 28% of domestic flat glass            as automotive replacement parts. Supp.
shipments, LOF and AFG each accounted               App. 25. These are two separate markets.3
for 19%, and Guardian and Ford each
accounted for 15%. Supp. App. 20.2
                                                           3
                                                             The parties fail to adequately
        Flat glass produced through the
                                                    explain the relationship between OEM
float process may be sold “as is,” in which
                                                    glass parts and automotive replacement
case it is used primarily in construction.
                                                    parts, which plaintiffs describe as
Supp. App. 16. Alternatively, many
                                                    “identical in composition.” Plaintiffs’ Br.
                                                    4. We gather from the record that they
       1
        Asahi also owns a company called            differ in two important respects. First,
Glaverbel, which was associated with                generally (but not always) only one OEM
AFG, and a Canadian-based company                   glass producer exists for any particular
called Glaverbec.                                   product. Thus PPG alone might produce a
                                                    particular windshield that a car
       2
          A company named Cardinal Glass            manufacturer uses in a particular model
Industries (“Cardinal”) accounted for               car. In contrast, multiple manufacturers
approximately 3% of domestic flat glass             typically produce any one type of
sales in 1995. Cardinal, which is not a             automotive replacement part. So PPG,
defendant in this suit, did not produce flat        Guardian, and LOF might produce the
glass until 1992, when it purchased a flat          automotive replacement part that would
glass manufacturing plant that AFG built            replace the OEM product that only PPG
for it. Before that time, Cardinal fabricated       produced and sold to the car manufacturer.
products from flat glass it purchased from          Second, OEM glass products are sold to a
PPG and others.                                     particular car manufacturer, whereas the

                                                4
        The automotive replacement glass              products, PPG runs a wholesale
market has a four-tier vertical structure.            distribution operation that sells less than
First, manufacturers—the handful of firms             truckload quantities to retail installers. Yet
mentioned above—produce flat glass.                   PPG also sells its products to its
Second, various companies fabricate the               downstream competitors. It sells flat glass
flat glass into different types of automotive         to autom otive repla cem ent glass
replacement glass products. The major                 fabricators, and it sells truckload quantities
United States fabricators of automotive               of automotive replacement glass products
replacement glass products during the                 to wholesale distributors.
class period were PPG, LOF, Ford,
Guardian, Saf elite, Vir acon,                               B. The Alleged Conspiracies
Premier/Hordis, and Chrysler. App. 585.
Thus a number of firms, such as PPG, both                    In 1993, LOF fired two of its
manufacture flat glass and fabricate it into          executives—Ronald Skeddle (LOF’s
automotive replacement glass products.4               President and Chief Executive Officer)
                                                      and Edward Bryant (LOF’s Executive
        Third, the fabricators sell the parts         Vice President, the company’s second-
by the “truck load” to w hole sale                    highest ranking officer)—and a grand jury
distributors. The wholesale distributors              indicted them for conspiracy, mail and
then sell the automotive replacement glass            wire fraud, and money laundering. A jury
products in less than truckload quantities            eventually acquitted them of the charges,
to the retail installers that sell the products       but in the meantime Skeddle and Bryant
directly to car owners.                               alleged that during the early 1990s LOF
                                                      had conspired with its competitors to fix
       PPG operates at every level of the             the price of the glass products it sold. See
automotive replacement glass market; that             In re Flat Glass Antitrust Litigation, 288
is, PPG is “vertically integrated.” In                F.3d 83, 86 (3d Cir. 2002).
addition to manufacturing flat glass and
fabricating automotive replacement glass                     Skeddle and Bryant’s allegations
                                                      spurred plaintiffs to file several private
                                                      antitrust lawsuits against LOF and its
corresponding identical automotive                    competitors (PPG, AFG, Ford, and
replacement glass products are sold to                Guardian), and the Judicial Panel on
multiple wholesalers and retail installers.           Multidistrict Litigatio n eve ntu ally
       4                                              consolidated and transferred the actions to
         Automotive replacement glass
                                                      the Western District of Pennsylvania. After
fabricators produced approximately
                                                      the District Court certified two subclasses
10,000 different automotive replacement
                                                      of plaintiffs, see In re Flat Glass Antitrust
glass products. No one fabricator
                                                      Litigation, 191 F.R.D. 472, 475 (W.D. Pa.
produced all 10,000. PPG produced
approximately 6,000. App. 585.

                                                  5
1999), plaintiffs reached settlements with          simply contend that PPG and its
all defendants except PPG.                          competitors agreed to raise their prices,
                                                    rather than doing so independently and
        Plaintiffs allege that PPG and its          with no concerted coordination.
competitors conspired to “fix, raise, and
maintain” the prices of flat glass and
automotive replacement glass. The two
alleged conspiracies correspond with the
two subclasses that the District Court
                                                           of July 29 or August 1,
certified. See In re Flat Glass Antitrust
                                                           1991; September of 1992,
Litigation, 191 F.R.D. at 475. One
                                                           all defendants raised their
subclass consists of individuals and
                                                           prices within days of each
entities that purchased flat glass or
                                                           other by 5-9% with an
products fabricated from flat glass from
                                                           effective date of October 1
PPG, LOF, Guardian, Ford, or AFG. The
                                                           or October 12; May of
other subclass consists of individuals and
                                                           1993, defendants raised
entities that purchased automotive
                                                           their prices within days of
replacement glass products from any of
                                                           each other by 5.5% with an
those same firms. Id.
                                                           effective date of June 7 or
                                                           9; October of 1993,
        Plaintiffs’ allegations regarding
                                                           defendants raised their
price-fixing in the market for flat glass are
                                                           prices within days of each
relatively straightforward. Several times
                                                           other by 6.5% with an
during the class period, PPG and the other
                                                           effective date of October 30
flat glass producers raised their “list
                                                           or November 1, 1993; April
prices” for flat glass by the same amount
                                                           of 1994 all defendants
and within very close time frames. Within
                                                           raised their prices by 5-9%
a twelve-day period in the summer of
                                                           with an effective date of
1991, for example, PPG and its
                                                           May 1 or 2; August of 1994,
competitors all raised their list prices for
                                                           all defendants raised their
flat glass by the same amounts. 5 Plaintiffs
                                                           prices by 5-8% with an
                                                           effective date of September
                                                           19, 1994; March of 1995,
       5
          The District Court catalogued                    all defendants raised their
these price increases as follows:                          prices by 6% with an
                                                           effective date of April 3 or
       July of 1991, all defendants                        11.
       raised their prices within
       days of each other by 7.5-                   App. 16 n.4 (internal citations to District
       9%, with an effective date                   Court record omitted).

                                                6
       Plaintiffs’ allegations regarding             the truckload price used to create the
price-fixing in the market for automotive            NAGS price, as did the other [automotive
replacement glass are more complicated.              replacement glass] manufacturers.”
According to plaintiffs, PPG and other               Plaintiffs’ Br. 33. Thus plaintiffs contend
automotive replacement glass fabricators             that PPG and its competitors “had an
used a mechanism, called the “NAGS                   understanding and acted in concert” to use
Calculator,” to fix prices at supra-                 the NAGS Calculator to “align their
competitive levels.                                  truckload price lists and stabilize pricing,
                                                     and as a benchmark for pricing of
         NAGS, which stands for “National            [automotive replacement glass] at less-
Auto Glass Specifications,” is a business            than-truckload quantities.” Plaintiffs’ Br.
that produced a catalogue called the                 30.
“ N AG S C alculator.” Th e N A G S
Calculator supplied an identifying number                      C. The Present Appeal
for each type of automotive replacement
g l a s s p r o d u c t a n d p ro v i d e d a               The District Court granted PPG’s
recommended price for an installer to                motions for summary judgment on both of
charge a car owner for the part. NAGS                plaintiffs’ price-fixing claims. Before
came up with its recommended price for               doing so, the Court circumscribed the
any particular automotive replacement                evidence it considered when deciding
glass product by taking a truckload                  PPG ’s summ ary judgment motions
quantity price of that product and                   through a series of in limine motions. The
multiplying it by a number (a “multiplier”)          Court refused to order Skeddle and Bryant
specific to that product. Generally, NAGS            to testify despite their invocation of their
would use the truckload quantity price for           Fifth Amendment privileges, for example,
the OEM glass product that the automotive            and it also excluded many of Skeddle’s
replacement glass was intended to replace.           handwritten notes that plaintiffs argue tend
                                                     to implicate PPG in a price-fixing
       According to plaintiffs, PPG and              conspiracy.
other automotive replacement glass
manufacturers knew the multipliers that                      Plaintiffs appeal from the District
NAGS used to devise its recommended                  Court’s summary judgment and certain of
prices. Thus PPG could, and plaintiffs               its evidentiary decisions. After addressing
allege did, work backwards from the                  the applicable legal standards, we first
recommended price to determine the                   address whether summary judgment was
truckload price that NAGS used in its                warranted based on the evidence the
calculation. “If the truckload price used by
NAGS was different from its own
truckload price,” plaintiffs argue, “PPG
then adjusted its truckload price to match

                                                 7
District Court considered.6 We conclude                 Inc., 156 F.3d 452, 461 (3d Cir. 1998)
that the District Court should not have                 (quoting Business Elecs. Corp. v. Sharp
granted summary judgment on plaintiffs’                 Elecs. Corp., 485 U.S. 717, 723 (1988)).
flat glass price-fixing claim, and we                   Because of their “pernicious effect on
address the District Court’s evidentiary                competition and lack of any redeeming
rulings so that the Court can further                   virtue,” Northern Pac. Ry. v. United
consider what evidence a jury may                       States, 356 U.S. 1, 5 (1958), these
consider on remand. We affirm summary                   restraints of trade are “conclusively
judgment on plaintiffs’ automotive                      presumed to unreasonably restrain
replacement glass conspiracy claim.                     competition ‘without elaborate inquiry as
                                                        to the precise harm [it has] caused or the
                II. Discussion                          business excuse for [its] use.” Rossi, 156
                                                        F.3d at 461 (internal citations and
        Section 1 of the Sherman Act                    quotations omitted).
provides that “every contract, combination
in the form of trust or otherwise, or                          Here, plaintiffs allege that PPG
conspiracy, in restraint of trade or                    engaged in horizontal price-fixing—i.e.,
commerce . . . is declared to be illegal.” 15           “where competitors at the same market
U.S.C. § 1. Despite its broad language,                 level agree to fix or control the prices they
Section 1 only prohibits contracts,                     will charge for their respective goods or
combinations, or conspiracies that                      services.” United States v. Brown Univ., 5
unreasonably restrain trade. See InterVest              F.3d 658, 670 (3d Cir. 1993). Since at
Inc. v. Bloomberg, L.P., 340 F.3d 144, 158              least United States v. Socony-Vacuum Oil
(3d Cir. 2003). Certain restraints of trade             Co., 310 U.S. 150 (1940), the Supreme
are per se unreasonable, while others                   Court has held that such restraints of trade
require more searching analysis under the               are per se unreasonable. “Whatever
“rule of reason.” Id. at 158-59.                        economic justification particular
                                                        price-fixing agreements may be thought to
         Restraints of trade are per se                 have,” the Court explained, “the law does
unreasonable when they are “‘manifestly                 not permit an inquiry into their
anticompetitive’ or ‘would always or                    reasonableness. They are all banned
a lm o s t a l w a y s t e n d to r e s t r i c t       because of their actual or potential threat
competition.’” Rossi v. Standard Roofing,               to the central nervous system of the
                                                        economy.” 310 U.S. 150, 224 n.59 (1940);
                                                        see also Brown Univ., 5 F.3d at 670.
        6
        We exercise plenary review over
the District Court’s grant of summary
                                                              As a result, plaintiffs need only
judgment. See, e.g., InterVest Inc. v.
                                                        prove that “the defendants conspired
                                                        among each other and that this conspiracy
Bloomberg, L.P., 340 F.3d 144, 158 (3d
                                                        was the proximate cause of the plaintiff’s
Cir. 2003).

                                                    8
injury.” InterVest, 340 F.3d at 159. PPG            tightly compartmentalize the evidence put
does not dispute proximate causation.               forward by the nonmovant, but instead
Rather, it argues that it did not agree with        should analyze it as a whole to see if it
its competitors to fix prices.                      supports an inference of concerted action.”
                                                    Petruzzi's IGA v. Darling-Delaware, 998
        The existence of an agreement is            F.2d 1224, 1230 (3d Cir.1993).
“[t]he very essence of a section 1 claim.”
Alvord-Polk, Inc. v. Schumacher & Co.,                     Although these normal summary
37 F.3d 996, 999 (3d Cir. 1994). The                judgment principles apply in antitrust
Sherman Act speaks in terms of a                    cases, an important distinction exists. As
“contract,” “combination” or “conspiracy,”          the Supreme Court held in Matsushita
but courts have interpreted this language to        Electric Industrial Co. v. Zenith Radio
require “some form of concerted action.”            Corp., 475 U.S. 574 (1986), “antitrust law
Id. at 999 & n.1. In other words, there             limits the range of permissible inferences
must be a “‘unity of purpose or a common            from ambiguous evidence in a § 1 case.”
design and understanding or a meeting of            Id. at 588; see also Monsanto Co. v. Spray-
minds’” or “‘a conscious commitment to              Rite Service Corp., 465 U.S. 752, 763-64
a common scheme.’” Monsanto Co. v.                  (1984). In other words, certain “inferences
Spray-Rite Service Corp., 465 U.S. 752,             may not be drawn from circumstantial
764 (1984) (quoting Edward J. Sweeney &             evidence in an antitrust case.” Intervest,
Sons, Inc. v. Texaco, Inc., 637 F.2d 105,           340 F.3d at 160.7 This higher threshold is
111 (3d Cir. 1980)).                                imposed in antitrust cases to avoid
                                                    deterring innocent conduct that reflects
        When faced with whether a plaintiff         enhanced, rather than restrained,
has offered sufficient proof of an                  competition.
agreement to preclude summary judgment,
a court must generally apply the same
summary judgment standards that apply in                   7
                                                            The “strictures of Matsushita do
other contexts. See Intervest, 340 F.3d at
                                                    not apply” when a plaintiff provides direct
159-60. A court shall render summary
                                                    evidence of a conspiracy. Petruzzi’s, 998
judgment when the evidence shows “that
                                                    F.2d at 1233. That is because “no
there is no genuine issue as to any material
                                                    inferences are required from direct
fact and that the moving party is entitled to
                                                    evidence to establish a fact and thus a
judgment as a matter of law.” Fed R. Civ.
                                                    court need not be concerned about the
P. 56(c). In making this determination, a
                                                    reasonableness of the inferences to be
court must “view the facts and any
                                                    drawn from such evidence.” Id. In
reasonable inferences drawn therefrom in
                                                    addition, “the focus in Matsushita was on
the light most favorable to the party
                                                    ambiguous evidence, and what inferences
opposing summary judgment.” Intervest,
                                                    reasonably could be drawn from that
340 F.3d at 160. And a court “should not
                                                    evidence.” Id. (internal citation omitted).

                                                9
        We explored “exactly what                     the high prices, enter its market and force
inferences are circumscribed in a section 1           prices down.” Clamp-All Corp., 851 F.2d
case” in our decision in Petruzzi's. There,           at 483. Courts and commentators alike
w e i d en t i f ie d “ t w o i m p o r t a nt        have come to regard predatory pricing as a
circumstances underlying the [Supreme]                relatively speculative phenomenon,
Court’s decision in Matsushita”: (1) “the             particularly when its success requires
plaintiffs’ theory of conspiracy was                  collusion among multiple firms. See
implausible”; and (2) “permitting an                  Brooke Group Ltd. v. Brown &
inference of antitrust conspiracy in the              Williamson Tobacco Corp., 509 U.S. 209,
circumstances ‘would have the effect of               226-27 (1993). Inferences about predatory
deterring significant procompetitive                  pricing are also inherently weak because
conduct.’” 998 F.2d at 1232 (quoting In re            the behavior of firms engaged in predatory
Coordinated Pretrial Proceedings in                   pricing would largely mirror how firms in
Petroleum Prods. Antitrust Litig., 906 F.2d           a competitive market act: by cutting prices.
432, 439 (9 th Cir. 1990)) (emphasis in               See Matsushita, 475 U .S. at 594
Petruzzi’s). In other words, “the Court               (“[C]utting prices in order to increase
stated that the acceptable inferences which           business often is the very essence of
can be drawn from circumstantial evidence             competition.”). Thus inferring from
vary with the plausibility of the plaintiffs’         ambiguous evidence that firms are
theory and the dangers associated with                engaging in predatory pricing would “chill
such inferences.” Id.; see also Matsushita,           procompetitive behavior.” Petruzzi’s, 998
475 U.S. at 587 (“[I]f the factual context            F.2d at 1232.
renders [the plaintiff's] claim
implausible— if the claim is one that                         In Petruzzi’s, by contrast, the
simply makes no economic sense—[a                     plaintiff alleged that the defendants
plaintiff] must come forward with more                conspired to alloc ate cu sto mers .
persuasive evidence to support [its] claim            “[P]laintiff’s theory of conspiracy is not
than would otherwise be necessary.”)                  implausible,” we explained, rather it made
(citations omitted).                                  “perfect economic sense.” 998 F.2d at
                                                      1232. In addition, the challenged activities
        The plaintiffs in Matsushita alleged          could not reasonably be perceived as
that the defendants conspired to engage in            procompetitive. Id. (“After all, refusing to
predatory pricing, the practice by which “a           bid on accounts hardly can be labeled as
firm sets its prices temporarily below                the ‘very essence of competition.’”)
costs, with the hope that the low price will          (quoting Matsushita, 475 U.S. at 594). As
drive a competitor out of business, after             a result of those circumstances, we
which the ‘predatory’ firm will raise its             concluded that “more liberal inferences
prices so high that it will recoup its                from the evidence should be permitted
temporary losses and earn additional                  than in Matsushita because the attendant
profit, all before new firms, attracted by            dangers from drawing inferences

                                                 10
recognized in Matsushita are not present.”          approximate—and cannot be mistaken
Id.; see also Intervest, 340 F.3d at 162;           as—competitive conduct.
Alvord-Polk, Inc., 37 F.3d at 1001 (“[T]he
meaning we ascribe to circumstantial                         Yet despite the absence of the
evidence will vary depending on the                 Matsushita Court’s concerns, this Court
challenged conduct.”).8                             and others have been cautious in accepting
                                                    inferences from circumstantial evidence in
       Here, like in Petruzzi’s, plaintiffs’        cases involving allegations of horizontal
theory of conspiracy—an agreement                   price-fixing among oligopolists. See
among oligopolists to fix prices at a               Williamson Oil Co. v. Philip Morris USA,
supracompetitive level—makes perfect                R.J., 346 F.3d 1287, 1300-01 (11th Cir.
economic sense. In addition, absent                 2003); Blomkest Fertilizer, Inc. v. Potash
increases in marginal cost or demand,               Corp. of Saskatchewan, 203 F.3d 1028,
raising prices generally does not                   1042-43 (8 th Cir. 2000); In re Baby Food
                                                    Antitrust Litigation, 166 F.3d 112, 121-22
                                                    (3d Cir. 1999); Clamp-All Corp. v. Cast
       8                                            Iron Soil Pipe Institute, 851 F.2d 478, 484
        As one prominent antitrust
                                                    (1 st Cir. 1988); Apex Oil Co. v. DiMaurio,
commentator has explained:
                                                    822 F.2d 246, 253-54 (2d Cir. 1987); see
                                                    also Petruzzi’s, 998 F.3d at 1232-33.9 The
       Matsushita spoke in the
                                                    basis for this circumspect approach is the
       context of a highly
                                                    theory of “interdependence.” See Donald
       improbable twenty-year-
                                                    F. Turner, The Definition of Agreement
       long predatory pricing
                                                    Under the Sherman Act: Conscious
       conspiracy and required
                                                    Parallelism and Refusals to Deal, 75 Harv.
       high-quality evidence to
                                                    L. Rev. 655, 662-63 (1962).
       permit such a conspiracy to
       be presented to a jury. . . .
       However, Matsushita itself
       said little about proof
                                                           9
       requirements in a case                               A leading antitrust scholar, who
       where underlying structural                  now authors the Areeda treatise, has
       evidence indicates that the                  characterized these cases at least in part as
       offense is quite plausible                   “an unfortunate misinterpretation” of
       and would be profitable for                  Matsushita. Herbert Hovenkamp, The
       the defendants.                              Rationalization of Antitrust, 116 Harv. L.
                                                    Rev. at 925 (“[U]nfortunately, many courts
Herbert Hovenkamp, The Rationalization              have read M atsushita as requiring a certain
of Antitrust, 116 Harv. L. Rev. 917, 925-           quantum evidence of verbal agreement
26 (2003) (reviewing Richard A. Posner,             before summ ary judgment can be
Antitrust Law (2d ed. 2001)) .                      avoided.”).

                                               11
        The theory of interdependence                 engaging in any overt concerted action.
posits the following: In a market with                We quote the Areeda treatise at length:
many firms, the effects of any single firm’s
price and output decisions “would be so                     The first firm in a five-firm
diffused among its numerous competitors                     oligopoly, Alpha, may be
that they would not be aware of any                         eager to lower its price
change.” Phillip E. Areeda & Herbert                        somewhat in order to
Hovenkamp, Antitrust Law ¶ 1429, at 206                     expand its sales. However, it
(2 nd ed. 2000). In a highly concentrated                   knows that the other four
market (i.e., a market dominated by few                     f ir m s would proba bly
firms), however, any single firm’s “price                   respond to a price cut by
and output decisions will have a noticeable                 reducing their prices to
impact on the market and on its rivals.” Id.                maintain their previous
Thus when a firm in a concentrated market                   market shares. Unless Alpha
(i.e., an “oligopolist”) is deciding on a                   believes that it can conceal
course of action, “any rational decision                    its price reduction for a time
must take into account the anticipated                      or otherwise gain a
reaction of the other [] firms.” Id. at 207.10              substantial advantage from
                                                            being the first to move, the
       The result, according to the theory                  price reduction would
of interdependence, is that firms in a                      merely reduce Alpha’s
concentrated market may maintain their                      profits and the profits of the
prices at supracompetitive levels, or even                  other firms as well.
raise them to those levels, without
                                                            Such       “ o l i g o p o li s t i c
                                                            rationality” cannot only
       10                                                   forestall rivalrous price
         “For example, in a market of one
                                                            reductions, it can also
hundred sellers of equal size, an expansion
                                                            provide for price increases
in output of 20 percent by one of them
                                                            through, for example, price
will result in an average fall in output of
                                                            leadership. If the price had
only about .2 percent for each of the
                                                            for some reason been less
others, so a seller need not worry in
                                                            than X [the price a
making his pricing decisions about the
                                                            monopolist would charge to
reactions of his rivals.” Richard A. Posner,
                                                            maximize profits], firm Beta
Antitrust Law 56 (2nd ed. 2001). But if
                                                            might announce its decision
“there are three sellers of equal size, a 20
                                                            to raise its price to X
percent expansion in the sales of one will
                                                            effective immediately, or in
cause the sales of each of the others to fall
                                                            several days, or next season.
by an average of 10 percent—a sales loss
                                                            The other four firms may
the victims can hardly overlook.” Id.

                                                 12
          each choose to follow                      1432f, at 232-36; but see Posner, supra, at
          Beta’s lead; if they do not                98. Indeed, the Supreme Court has
          increase their prices to                   described conscious parallelism in dicta as
          Beta’s level, Beta may be                  “the process, not in itself unlawful, by
          forced to reduce its price                 which firms in a concentrated market
          to their level. Because                    might in effect share monopoly power,
          each of the other firms                    setting their prices at a profit-maximizing,
          knows this, each will                      supracompetitive level by recognizing
          consider whether it is                     their shared economic interests and their
          better off when all are                    interdependence with respect to price and
          charging the old price or                  output decisions.” Brooke Group Ltd. v.
          price X. They will                         Brown & Williamson Tobacco Corp., 509
          obviously choose X when                    U.S. 209, 227 (1993) (emphasis added).
          they believe that it will
          m aximize indu stry                                As a result, we have required that
          profits.                                   plaintiffs basing a claim of collusion on
                                                     inferences from consciously parallel
Id. at 207-08.                                       behavior show that certain “plus factors”
                                                     also exist. See In re Baby Food, 166 F.3d
        Despite the noncompetitive nature            at 122; Petruzzi’s, 998 F.2d at 1243.11
of such conduct, which we have come to               Existence of these plus factors tends to
call “conscious parallelism,” we have held           ensure that courts punish “concerted
that the Sherman Act does not proscribe it.          action”—an actual agreement—instead of
See In re Baby Foods, 166 F.3d at 121-22.            the “unilateral, independent conduct of
There are two primary bases for this                 competitors.” In re Baby Food, 166 F.3d at
approach, both embodied in a line of
scholarship that started with Donald
Turner in 1962 and continued in large part                  11
                                                               Thus in order to establish illegal
in Phillip Areeda’s influential antitrust
                                                     concerted action based on “consciously
treatise. First, there exists the notion that
                                                     parallel behavior, a plaintiff must show (1)
interdependent behavior is not an
                                                     that the defendants’ behavior was parallel;
“agreement” within the term’s meaning
                                                     (2) that the defendants were conscious of
under the Sherman Act. See Turner, supra,
                                                     each other’s conduct and that this
at 663-65; but see Posner, Antitrust Law,
                                                     awareness was an element in their
supra, at 94-95. Second, Turner and
                                                     decision-making process; and (3) certain
Areeda argued that judicial remedies are
                                                     ‘plus’ factors.” Petruzzi’s, 998 F.2d at
incap able o f a d d r e s si n g th e
                                                     1242, quoted in Intervest, 340 F.3d at 165.
anticompetitive effects of consciously
                                                     It is undisputed that the first two
parallel pricing. Turner, supra, at 669-71,
                                                     circumstances exist here, and we therefore
Areeda, Antitrust Law, supra, ¶¶ 1432d5-
                                                     concentrate on the third and final.

                                                13
122. In other words, the factors serve as           irrational assuming that the defendant
proxies for direct evidence of an                   operated in a competitive market. In a
agreement.                                          competitive industry, for example, a firm
                                                    would cut its price with the hope of
        The question then becomes, what             increasing its market share if its
are “plus factors” that suffice to defeat           competitors were setting prices above
summary judgment? There is no finite set            marginal costs. Put differently, in
of such criteria; no exhaustive list exists.        analyzing this factor a court looks to
See Id.; Areeda, supra, ¶ 1434a, at 241-42.         “evidence that the market behaved in a
We have identified, however, at least three         noncompetitive manner.” Id.
such plus factors: (1) evidence that the
defendant had a motive to enter into a                        These two plus factors are
price fixing conspiracy; (2) evidence that          important to a court’s analysis, because
the defendant acted contrary to its                 their existence tends to eliminate the
interests; and (3) “evidence implying a             possibility of mistaking the workings of a
traditional conspiracy.” Petruzzi’s, 998            competitive market—where firms might
F.2d at 1244.                                       increase price when, for example, demand
                                                    i n c r e a s e s — w i t h i n t e rd e p e n d e n t ,
        In the context of parallel pricing,         supracompetitive pricing. But since these
the first two factors largely restate the           factors often restate interdependence (at
phenomenon of interdependence. We                   least in the context of an alleged price-
candidly acknowledged as much in In re              fixing conspiracy), they m ay not
Baby Food, 166 F.3d at 122. See also                suffice—by themselves—to defeat
Areeda, supra, ¶ 1434c1, at 245                     summary judgment on a claim of
(“‘[C]onspiratorial motivation’ and ‘acts           h o r i z o nt a l p r i c e - fi x i n g a m o ng
against self-interest’ often do no more than        oligopolists. 1 2 The most important
restate interdependence.”); Posner, supra,
at 100. Evidence that the defendant had a
motive to enter into a price fixing                          12
                                                               Neither factor is “strictly
conspiracy means evidence that the
                                                    necessary.” In re High Fructose Corn
industry is conducive to oligopolistic price
                                                    Syrup Antitrust Litigation, 295 F.3d 651,
fixing, either interdependently or through
                                                    655 (7th Cir. 2002). Thus this type of
a more express form of collusion. In other
                                                    economic evidence is neither necessary
words, it is “evidence that the structure of
                                                    nor sufficient to conclude that sufficient
the market was such as to make secret
                                                    proof of an agreement exists to preclude
price fixing feasible.” In re High Fructose
                                                    summary judgment, but it is relevant and
Corn Syrup Antitrust Litigation, 295 F.3d
                                                    courts should as a general matter consider
651, 655 (7th Cir. 2002). Evidence that the
                                                    it.
defendant acted contrary to its interests
means evidence of conduct that would be
                                                             We also observe that certain types

                                               14
evidence will generally be non-economic              concentrated; there are a handful of sellers
evidence “that there was an actual,                  and there is no “fringe market” of smaller
manifest agreement not to compete.” Id. at           firms. Flat glass is sold primarily on the
661. That evide nce m ay involv e                    basis of price, and although it may vary in
“customary indications of traditional                tint or thickness it is generally a
conspiracy,”or “proof that the defendants            standardized product. Importantly, the
got together and exchanged assurances of             demand for flat glass was in decline during
common action or otherwise adopted a                 the start of the 1990s and PPG and its
common plan even though no meetings,                 competitors had e xces s cap acity.
conversations, or exchanged documents                Normally, reduced demand and excess
are shown.” Areeda, supra, ¶ 1434b, at               supply are economic conditions that favor
243; see also Petruzzi’s, 998 F.2d at 1244.          price cuts, rather than price increases.
                                                     There are also high fixed costs in the
        We turn to whether plaintiffs here           industry. See App. 635. Suffice it to say,
have adduced sufficient evidence of plus             the flat glass industry is in many respects a
factors to preclude summary judgment on              text book example of an industry
their two separate antitrust claims.                 susceptible to efforts to maintain
                                                     supracompetitive prices. See generally
               A. Flat Glass                         Richard A. Posner, Antitrust Law 69-79
                                                     (2d ed. 2001). PPG concedes as much. See
       We first note that plaintiffs have            Tr. of Oral Argument 21-22.
offered substantial evidence tending to
show that PPG had a motive to enter into                     Similarly, there is evidence in the
a price fixing conspiracy because                    record indicating that the price increases
conditions existed in the flat glass industry        PPG and its competitors implemented
that were conducive to collusion. As we              were inconsistent with competition in the
have described, the flat glass market is             industry. In other words, there is evidence
                                                     of anti-competitive behavior and that PPG
                                                     acted “contrary to its interests.” The entry
                                                     of Cardinal into the market, for example,
of “actions against self interest” may do
                                                     tends to indicate that flat glass producers
m o r e t h a n r e s t a t e e co n o m i c
                                                     were charging supracompetitive prices.
interdependence. For example, non-price
                                                     See Posner, supra, at 89 (“The charging of
acts against self-interest, such as
                                                     a monopoly price will attract new
apparently unilateral exchanges of
                                                     competitors to a market who perceive
confidential price information, cannot
                                                     opportunities for unusual profits by reason
simply be explained as a result of
                                                     of the abnormally high price.”). More
oligopolostic interdependence. See
                                                     important, no evidence suggests that the
Blomkest Fertilizer, Inc., 203 F.3d at
                                                     increase in list prices was correlated with
1046-47 (Gibson, J., dissenting).
                                                     any changes in costs or demand. Indeed, in

                                                15
July of 1992 a PPG executive noted that              argues that plaintiffs cannot establish
“[n]o one . . . believes that demand will be         liability as a matter of law for that reason,
robust enough to support a price increase            it is simply wrong.13 “An agreement to fix
without significant discipline on the part of
all float producers.” App. 5841. After the
flat glass producers implemented a price                    13
                                                                PPG argued before the District
increase in September of 1992, the same
                                                     Court, for example, that “controlling case
executive noted that “[b]asic supply and
                                                     law precludes an antitrust plaintiff from
demand do not support this [1992]
                                                     avoiding summary judgment by reliance
increase.” App. 5908.
                                                     on evidence relating to list prices.” App.
                                                     667. PPG misstates the law. Declining
       All the above indicates that the
                                                     transaction prices will tend to support a
price increases were collusive, but not
                                                     conclusion that competitors did not enter
whether the collusion was merely
                                                     into an agreement to fix prices where the
interdependent or the result of an actual
                                                     other record evidence also fails to
agreement. We therefore consider whether
                                                     sufficiently prove an agreement. See, e.g.,
sufficient “traditio nal” conspiracy
                                                     Clamp-All Corp., 851 F.2d at 484 (“[T]he
evidence exists from which a reasonably
                                                     fact that [the defendants] often set prices
jury could infer that an agreement existed.
                                                     that deviated from their price lists helps
Plaintiffs argue that evidence that PPG’s
                                                     support the inference that the similarity of
competitors entered into an agreement—at
                                                     price lists reflects individual decisions to
least amongst themselves—tends to show
                                                     copy, rather than any more formal pricing
that PPG too entered the same agreement.
                                                     agreement.”). Our decision in In re Baby
They also argue that other circumstantial
                                                     Food is not to the contrary. In the specific
evidence shows—or at least a finder of
                                                     factual setting of that case—involving
fact could infer—that PPG agreed to raise
                                                     “hundreds of products” and multiple
the price of flat glass three specific times:
                                                     complicated discounts and price
June-July of 1991, September-October of
                                                     promotions—we concluded that plaintiffs’
1992, and May-June of 1993.
                                                     and their experts’ use of list price data was
                                                     insufficient to show that parallel pricing
        As a preliminary matter, however,
                                                     had occurred. 166 F.3d at 128-29.
we address an argument that pervades
                                                     Significantly, the defendants made
PPG’s briefs, both before us and before the
                                                     “similar pricing decisions” 15.5% of the
District Court. PPG contends that
                                                     time and priced their products differently
regardless of the flat glass producers’ list
                                                     84.5% of the time. Id. at 128. The District
prices, the actual transactional prices—that
                                                     Court therefore concluded, in a portion of
is, the prices at which flat glass producers
                                                     its decision that we cited with approval,
actua lly sold their pro duct t o
                                                     that the plaintiffs were “unable to show
customers—declined during the period of
                                                     that defendants’ prices moved in a parallel
the alleged conspiracy. Insofar as PPG
                                                     fashion. That is true both for list prices

                                                16
prices is . . . a per se violation of the            “leniency to corporations reporting their
Sherman Act even if most or for that                 illegal antitrust activity at an early stage, if
matter all transactions occurred at lower            they meet certain conditions.” App. 6459.
prices.” In re High Fructose Corn Syrup,             Among the policy’s requirements was that
295 F.3d at 656.                                     the cooperating corporation “report[] the
                                                     wrongdoing with candor and completeness
        PPG does not—it cannot—seriously             and provide[] full, continuing and
contend that the flat glass producers                complete cooperation that advances the
increased their list prices with no intention        Division in its investigation.” App. 6460.
of affecting transaction prices. “[S]ellers
would not bother to fix list prices if they                  LOF sought leniency under the
thought there would be no effect on                  policy in 1995, but the Antitrust Division
transaction prices.” Id. Thus declining              concluded that LOF had not been
transaction prices despite an agreement to           sufficiently forthcoming with information
fix list prices would constitute a failed            of its wrongdoing. “We are surprised that
attempt to fix prices. But a horizontal              you consider our proffer, which described
agreement to fix prices need not succeed             an agreed upon, across the board price
for sellers to be liable under the Sherman           increase for the entire United States,” LOF
Act; it is the attempt that the Sherman Act          responded, “to be less than a ‘full and
proscribes. See Socony-Vacuum Oil Co.,               complete disclosure.’” App. 5003.
310 U.S. at 224 n.59.
                                                            LOF’s response to the Antitrust
       1. Evidence of an Agreement                   Division does not directly state that it
          Among PPG’s Competitors                    agreed with PPG to raise prices. But a
                                                     reasonable factfinder could infer such an
       The District Court concluded that             agreement from LOF’s reference to an
the record “undoubtedly evidences that               “across the board” price increase. Black’s
several of the settling defendants                   Law Dictionary defines “across-the-board”
conspired to fix prices.” App. 46. We                as “[a]pplying to all classes, categories, or
agree. The most compelling basis for this            groups.” Black’s Law Dictionary 24 (7th
conclusion is a document that LOF                    ed. 1999). One reasonable interpretation of
submitted to the Department of Justice’s             LOF’s statement is that LOF agreed with
Antitrust Division in 1995.                          one or more competitor to increase the
                                                     price of all types of flat glass. Another is
       The Antitrust Division had a                  that LOF agreed with all its competitors to
“Corporate Leniency Policy” in effect at             increase prices on one or more category of
the time under which the DOJ accorded                flat glass. And yet another is that LOF



and transaction prices.” Id.

                                                17
agreed with all its competitors to increase                  2. The June-July 1991 Increase
the price of all types of flat glass.14
                                                              On June 7, 1991, AFG announced
        PPG argues that under our decision            that it was raising the price of its flat glass.
in In re Baby Food, “the fact that some               The price increase was to become effective
other glass producers may have attempted              on July 15, 1991. App. 3552. Neither PPG
to fix prices in this case is irrelevant.” PPG        nor any of AFG’s other competitors raised
Brief 82. We disagree. Even if LOF’s                  their prices in response.15
statement—and any other evidence—tends
to show that PPG’s competitors agreed                        Also on June 7, 1991, top
among themselves to raise prices but does             executives from Pilkington’s various
not directly implicate PPG, it is surely not          businesses (including LOF) met in the
irrelevant to whether PPG entered an                  United Kingdom. Minutes from the
agreement. If six firms act in parallel               meeting state: “There were indications that
fashion and there is evidence that five of            a price increase of approximately 8%
the firms entered into an agreement, for              would hold” in the United States. App.
example, it is reasonable to infer that the           3868.
sixth firm acted consistent with the other
five firms’ actions because it was also a                    A week later, on June 13, 1991, two
party to the agreement. That is especially            of LOF’s board members (Tomoaki Abe
so if the sister firm’s behavior mirrored             and Mr. M atsumora ) traveled to
that of the five conceded coconspirators.             Pennsylvania to play golf with Robert
In some circumstances, to be sure, such               Duncan, the Vice President of PPG’s Glass
evidence might not be sufficient alone to             Group. The night before they played golf,
defeat summary judgment. See In re Citric             Abe’s administrative assistant sent him a
Acid Litig., 191 F.3d 1090, 1106 (9 th Cir.           fax relating a message from Glen
1999). But we need not determine whether              Nightingale, the Pilkington executive
it can be here, because plaintiffs argue that         based in London with responsibility for
additional evidence supports their                    LOF. 16 The fax stated: “M r. Nightingale
contention that PPG entered into an
agreement.                                                   15
                                                                AFG raised the price of its
                                                      “pattern glass” by 4%, its “thin glass
                                                      products” by 5%, its “gray and bronze
                                                      thicknesses” by 9%, and its “4mm-12mm”
       14
          PPG does not argue that LOF’s               also by 9%. App. 3552.
proffer is not admissible, and we therefore
                                                             16
assume that it is for purposes of this                           LOF’s proffer to the DOJ
decision. In any case, however, we would              identified Nightingale as an individual
reach the same result even if we did not              “involved in the 1992 activities.” App.
consider LOF’s proffer.                               5003. It also stated that Nightingale had

                                                 18
requests that you call him on Friday               PPG’s competitors had actually matched
morning [June 14] before you leave your            PPG’s price increase.17
hotel room—it will only take two minutes.
He seemed rather firm. . .” App. 3890.                    On July 2, 1991, a Ford executive
                                                   sent an email to his regional managers
        Two weeks later, on June 28, 1991,         stating that “[w]e must have total support
PPG announced a 7.5-9% price                       of this industry pricing action and focus
increase—an amount different than the              our attention on implementing the price
price increase AFG announced on June 7,            increase in an intelligent manner. The
but notably approximately 8%— to be                actions being taken are important to the
effective July 29, 1991. App. 5833. PPG’s          industry and will improve the commercial
competitors eventually followed suit with          glass profitability.” App. 3553. As of that
virtually identical price increases, to be         day, however, neither LOF nor Guardian
effective either July 29 or August 1, 1991.        had announced a price increase. They
Ford announced its price increase on July          announced increases on July 8 and July 9,
1, app. 3472; LOF announced its price              respectively.
increase on July 8, app. 3474; Guardian
announced on July 9, app. 3482; and AFG                   A PPG internal document dated
rescinded its June 7 increase and                  September 6, 1991 stated that the “price
announced a price increase in line with            increase was implemented without any
PPG’s on July 10, app. 3551.                       problems.” App. 5831. A similar
                                                   document, dated September 3, 1991, stated
       A copy of PPG’s June 28, 1991               that “[t]he industry price increase was
announcement produced from the files of            implemented in August by all primary
John Frazier (manager of PPG’s
Knoxville, Tennessee branch) contains a
typewritten note on it stating: “ALL                      17
                                                             PPG on the other hand argues
OTHER MAJOR GLASS SUPPLIERS
                                                   that there is evidence suggesting that
ARE CONCURRENTLY RAISING
                                                   someone typed the note on the June 28
PRICES THE SAM E PERCENTAGE.”
                                                   announcement after its competitors
App. 5833. Evidence suggests that Frazier
                                                   announced their price increases. PPG is
received this document, together with the
                                                   undoubtedly correct; this document’s time
typewritten notation, sometime before
                                                   frame is a disputed fact and a finder of fact
                                                   could reasonably reach the conclusion
                                                   PPG urges us to draw. But a fact finder
“discussions with [an AFG executive] that          could also reasonably conclude the
resulted in a price move.” App. 5004.              opposite, and it is black letter law that we
Nightingale invoked his Fifth Amendment            must draw all reasonable inferences in
privilege against self incrimination when          plaintiffs’ favor at this point in the
plaintiffs sought to depose him.                   proceedings.

                                              19
manufacturers, although varying degrees               1992, effective Oct. 1, 1992, with
of protection were offered by our                     increases of 9% on clear and tinted glass
competition.” App. 5731. An internal LOF              and 5% on “Eclipse” glass. App. 3628. A
document from November of 1991,                       few weeks later, on July 24, 1992, Joseph
however, stated that the “[p]rice increase            Hudson— PPG’s Eastern Zone Manager
of 8/19/91 is unraveling at several key               for Flat Glass Products, app. 5908—
acco unts d u e t o A F G /G laverbec/                noted: “No one, however, believes that
Guardian’s failure to hold the line on                demand will be robust enough to support a
pricing and PPG’s price protected annual              price increa se w ithout s ignificant
contracts through the year end.” App.                 discipline on the part of all float
1712.                                                 producers.” App. 5841.18

        To summarize: AFG raised its
prices, but no one followed suit. LOF                       18
                                                               A fuller excerpt from the cited
executives expressed their opinion at a               portion of the record states:
board meeting that an 8% increase in flat
glass prices would “hold.” Two board                        Glaverbec appears to have
members met with a PPG executive one                        quieted down just a bit in
week later. Two weeks after the meeting,                    terms of new aggressive
PPG raised its flat glass prices by                         pricing, seemingly for the
essentially the same amount that LOF                        first time to be content with
executives thought would “hold.” An                         current absurdly low prices.
internal PPG memorandum, which might                        Significantly, for the first
have been produced prior to any other firm                  time, Glaverbec is reported
announcing an increase in its flat glass                    to have said that their tank is
prices, states that other flat glass producers              sold out. All producers,
were “concurrently raising prices the same                  including PPG, continue to
percentage.” The flat glass manufacturers                   react sele ctive ly to
initially felt that the price increase had                  Glaverbec’s pricing and
gone successfully, but they later felt it was               attempt to protect selected
unsuccessful because at least some of                       customers and selected
them failed to “hold the line.”                             markets.

       3. The September-October 1992                        Discussion and rumors
          Price Increase                                    surrounding a possible price
                                                            increase later in the year are
      A July 1, 1992 entry in the pocket
                                                            widespread in the market
calendar for a Ford Regional Sales
                                                            place. No one, however,
Manager indicated that LOF was going to
                                                            believes that demand will be
announce a price increase on Sept. 22,
                                                            robust enough to support a

                                                 20
        In September of 1992, however, the                   Fair, I also had the
competitors announced a 5-9% price                           opportunity to meet with
increase: AFG announced its price                            Russ Ebeid of Guardian
increase on September 15, 1992, to be                        who assured me that they
effective October 1, app. 3545; Guardian                     were fully supportive of the
announced a price increase on September                      price increase proposition.
21, to be effective October 9, app. 3547;                    Clearly, this could make
LOF announced on September 22, to be                         quite a difference to your
effective October 1, app. 3476; and both                     results if the price increase
PPG and Ford announced their prices                          can stick.
increases on September 23, to be effective
October 12, app. 3475, 3549. On                     App. 3895. This excerpt was removed
September 24, AFG changed the effective             from a later version of the letter. App.
date of its price increase from October 1 to        7194.19
October 12. App. 3550.
                                                            Finally, during the same time period
        Between September 22 and                    in September of 1992, PPG’s Hudson
September 26, 1992, soon after the price            reiterated his July comment that a price
increases were announced, sen ior                   increase would not be consistent with
executives from the various competitors             market conditions. According to Hudson,
(PPG, Ford, Guardian, and Pilkington)               “[b]asic supply and demand do not support
attended a “Glass Fair” meeting in                  this [1992] increase.” App. 5908.20
Germany. A Pilkington executive reported
the following in a letter to LOF’s Skeddle:                  19
                                                               Even if this statement does not
       I was pleased to learn during                unambiguously tend to show that flat glass
       the Glass Fair that an                       producers agreed ahead of time to raise
       attempt to raise prices by                   prices, it at least tends to show that there
       9% in the United States had                  was an agreement to maintain higher
       been initially supported by                  prices despite competitive demands (i.e. to
       a ll s u p p l ie r s i n t h e              “make it stick”).
       marketplace. During the                               20
                                                                  The full excerpt from the record
                                                    reads:

              price increase                                 Certainly the hot topic on
              without significant                            the pricing front is the
              discipline on the part                         industry increase announced
              of all float producers.                        during September to be
                                                             effective in October. Basic
App. 5841.                                                   supply and demand do not

                                               21
        To summarize: A Ford Regional              or June [of 1993] of about 5 or 6%.” App.
Sales Manager was aware of the precise             3720, 3456, 3458-59. Teat reported this to
date when LOF was going to announce a              superiors at LOF with pricing authority.
price increase almost three months ahead           App. 3721-23, 3456-58.21
of time, as well as the precise amounts of
the increase. A PPG executive believed                    LOF’s preliminary budget for fiscal
that the market would not support a price          year 1994, dated January 21, 1993, refers
increase. Nonetheless, PPG and its                 to a “May-June ‘93 price increase.” App.
competitors raised their prices by the same        6432. Similarly, an LOF “CEO’s Review
amount, all within eight days of each              Report” from March 30, 1993 stated that
other. Soon after the price increases were         there would be “a U.S. domestic price
announced, executives from the various             increase in the May-June timeframe.” App.
flat glass producers attended a trade show         4031.22 And LOF’s revised budget (dated
at which a executive from Guardian
assured an executive from Pilkington that
Guardian was “fully supportive of the                     21
price increase proposition.”                                 Kennedy was an officer and
                                                   director of AFG. Although Teat did not
       4. The May-June 1993                        have pricing authority, his precise position
          Price Increase                           at LOF is unclear from the record.
                                                          22
                                                               A fuller excerpt stated:
      In December of 1992, AFG’s Roger
Kennedy told LOF’s Roger Teat that AFG
                                                          A price increase has been
was “considering another increase in May
                                                          initiated in Eastern Canada
                                                          by PPG to be effective
                                                          March 22; 7% increase for
              support this increase,                      all clear, uncased product
              so it will require                          (2.3mm through 6.0mm)
              discipline on the part                      and a 9% increase for clear
              o f        e a c h                          c a s e d p r o d u c t . It is
              manufacturer.                               anticipated that this increase
              G l a v e r b e c ,                         will be a lead into a U.S.
              Guardian’s mirror                           domestic price increase in
              operations and                              the May-June timeframe.
              AFG’s distribution                          LOF is follow ing the
              arm are keys to the                         Canadian lead and including
              success of the                              heavy clear and tint product
              increase.                                   with the increase.

App. 5908.                                         App. 4031.

                                              22
April 5, 1993) also referred to a “May-                     After the price increases went into
June price increase.” App. 4669.23                  effect, John M usser (from PPG) reported
                                                    that “[t]he price increase of 5.5%
       A few months later, on April 16,             announced in early May by all major float
1993, A F G fa xe d t o P P G a                     producers for an implementation on or
“prepublication” copy of its May 17, 1993           about June 7 has had the effect of
5.5% price increase announcement (to be             stabilizing prices.” App. 5906.25 In a
effective in June). App. 6369.24 It also
faxed a copy to Guardian. App. 3711.
                                                           25
                                                                A fuller excerpt stated:
        PPG announced a 5.5% price
increase on May 12, 1993, almost a week
                                                           The price increase of 5.5%
before AFG was going to announce its
                                                           announced in early May by
price increase. App. 5840. The rest of
                                                           all major float producers for
PPG’s competitors quickly followed suit.
                                                           an implementation on or
LOF, AFG, and Ford announced five days
                                                           about June 7 has had the
later, on M ay 17, 1993. App. 3477, 3708,
                                                           effect of stabilizing prices.
3478. Guardian announced on May 19,
                                                           Overall customer reaction to
1993. App. 6105.
                                                           the increase has been
                                                           favorable, particularly in the
                                                           mirror and distributor/
       23
          In addition, Ford’s business plan                fabricator segments. Sash
(dated April 29, 1993) also referred to a                  accounts who are not price
5% price increase. App. 3698. Under the                    protected are resisting the
heading “Possible Opportunities and                        increased [sic], to a degree.
Improvements,” it stated: “A 5% market                     The modest amount of the
price increase spurred by cyclical recovery                increase, the perceived cost
with increased industry capacity utilization               justification for the increase,
would increase profits by almost $3                        and the firmness to date of
million.” App. 3697-98.                                    a l l f lo a t p r o d u ce r s,
                                                           however, are all positive
       24
         PPG urges that AFG did not send                   factors which project that
the fax on April 16, 1993, arguing that the                the announced prices will
most likely explanation for the date’s                     hold. The highest degree of
appearance on the fax is that the fax                      uncertainty resides on the
machine malfunctioned. PPG is free to                      West Coast, which has the
make this argument to a jury, but surely a                 lowest level of industry
reasonable finder of fact could infer that                 capacity utilization.
the date on the fax means that it was sent
on that day.                                        App. 5906.

                                               23
similar vein, an LOF report (dated June 21,        that would enable a reasonable jury to
1993) stated: “Price increase is in effect         reject the hypothesis that the defendants
from all major manufacturers. We are               foreswore price competition without
monitoring the market to make sure that all        actually agreeing to do so.” In re High
stick to the rules and will report any and         Fructose Corn Syrup, 295 F.3d at 661
all information we hear about.” App. 3732.         (citing Matsushita, 475 U.S. at 488).

        PPG’s Central Zone Manager,                        First, there is the evidence—
Thomas Merlitti, stated on June 25, 1993           including LOF’s assertion that there was
that “[t]he price increase implemented in          an “across the board” agreement to
June remains firmly in place as all major          increase prices—that PPG’s competitors
flat glass producers are holding firm.”            entered into an agreement. And viewed
App. 3507. And Hudson of PPG reported:             collectively and holistically, there is
“The increase which was effective June 7           evidence tending to show that PPG was a
has been a nearly complete success.” App.          party to an agreement to raise the price of
5794.                                              flat glass on three occasions.

        To summarize: AFG and LOF                          PPG urges us to take a different
discussed a May-June 1993 price increase           approach. It appears to propose that we
during the preceding December, and LOF             consider each individual piece of evidence
accounted for such an increase in its              and disregard it if we could feasibly
forthcoming budget. In April, AFG faxed            interpret it as consistent with the absence
to PPG a copy of the increase it planned to        of an agreement to raise prices. With
announce on May 17. PPG announced an               regard to the announcement that stated “all
identical increase on May 12, and the rest         oth er major glass suppliers a re
of the flat glass producers followed with          concurrently raising prices by the same
identical price increases. LOF was                 percentage,” for example, PPG argues that
“monitoring the market to make sure that           the “facts suggest that the notation was
all stick to the rules.” The flat glass            placed on the announcement after all glass
producers all “held firm,” and executives          produc ers had is sued their
from the firms generally considered the            announcements.” PPG Br. 25 (emphasis
price increase a “success.”                        added). Similarly, PPG contends that the
                                                   “most likely explanation” for the date that
       5. Analytical Summary                       appears on an AFG price announcement
                                                   found in PPG’s files “is that the date stamp
       The above evidence is sufficient to         mechanism malfunctioned.” PPG Br. 43.
provide a finder of fact with a basis to           We echo the Seventh Circuit’s admonition
reasonably conclude that PPG agreed with           in In re High Fructose Corn Syrup that the
the other flat glass producers to raise            “statement of facts in the defendants’ brief
prices. Put differently, there is “evidence        combines a recital of the facts favorable to

                                              24
the defendants with an interpretation                 plans. Notably, these scraps of evidence of
favorable to them of the remaining                    foreknowledge were not correlated to any
evidence; and that is the character of a trial        actual concerted price increase activity
brief rather than of a brief defending a              among all competitors.
grant of summary judgment.” 295 F.3d at
655. PPG’s arguments are well-suited for                      We made two salient points in
an argument before a jury, but they are               reviewing this evidence and rejecting the
irrelevant to our consideration in the                inference of agreement. First, we noted
present posture of this case.                         that price discussion among low level sales
                                                      people has little probative weight; we
        Alternatively, PPG appears to                 distinguished the far different situation
contend that we should disregard certain              where upper level executives have secret
categories of evidence, from various                  conversations about price. Id. at 125 & n.8
periods of time, because such evidence                (“Evidence of sporadic exchanges of shop
does not in isolation lead inexorably to the          talk among field sales representatives who
conclusion that PPG entered into an                   lack pricing authority is insufficient to
agreement. Tr. of Oral Argument 25. PPG               survive summary judgment.”). Second, and
argues, for example, that competitors’                more important, we emphasized that “there
possession of each others’ price increase             must be evidence that the exchanges of
announcements or meetings among                       information had an impact on pricing
competitors’ executives cannot suffice to             decisions.” Id. at 125. The reason for this
preclude summary judgment. To be sure,                requirement is that exchanges of price
the mere presence of such evidence does               information may be compatible with
not require a court to deny summary                   competition, because they may “‘increase
judgment. In In re Baby Food, we                      economic efficiency and render markets
observed that “[w]e do not believe that the           more, rather than less, competitive.’” Id.
m e r e p ossession o f com petitiv e                 (quoting United States v. United States
memoranda is evidence of concerted                    Gypsum Co., 438 U.S. 422, 443 n.16
action to fix prices.” 166 F.3d at 126. But           (1978)). The In re Baby Food plaintiffs
the price-exchange evidence in In re Baby             simply could not correlate information
Food was far less compelling than in this             exchanges with specific collusive
case. The In re Baby Food plaintiffs relied           behavior. Rather, they made the more
upon testimony of competitors’ price                  amorphous claim that the exchanges of
information gathered by low-level sales               information “impacted the market as a
employees in unsystematic fashion.                    whole.” Id.
Plaintiffs pointed to a few competitors’
memos in sales files, but there was no                       The exchanges of information here,
evidence of how the documents got there.              by contrast, are qualitatively different from
Additional evidence documented some                   those in In re Baby Food, particularly
awareness of competitors’ price increase              when considered in the context of other

                                                 25
evidence. First, there is evidence tending          price behavior were followed by actual
to show that the exchanges occurred at a            price changes. The inference of concerted
higher level of the flat glass producers’           rather than interdependent action is
structural hierarchy. Second, and more              therefore stronger. In other words, these
importantly, a finder of fact could                 facts take the exchanges of pricing
reasonably infer that the flat glass                information outside the realm of “mere
producers used the information to                   possession.” In re Baby Food, 166 F.3d at
implement collusive price increases; that           126.
is, “the exchanges of information had an
impact on pricing decisions.” A court must                 We need not speculate as to
look to the evidence as a whole and                 whether something less than the evidence
consider any single piece of evidence in            in this record—two rate increases, for
the context of other evidence. See Big              instance, rather than three— would suffice
Apple BMW, Inc. v. BMW of North                     to deny summary judgment. The evidence
America, Inc., 974 F.2d 1358, 1364-65 (3d           here, in its totality, is sufficient to go to a
Cir. 1992), cited in In re Baby Food, 166           jury.
F.3d at 124. So, for example, there is
evidence that AFG faxed to PPG a copy of               B. Automotive Replacement Glass
a planned future increase that it had not
announced publicly, PPG announced an                        As described above, PPG and other
identical increase before AFG, and the rest         automotive replacement glass producers
of the flat glass producers followed with           supplied NAGS with their truckload list
identical price increases. It would take no         prices for various automotive replacement
stretch of the imagination for a fact finder        glass products. NAGS would select a
to infer from this evidence—one piece of            particular truckload price—usually the
which is PPG’s possession of a                      truckload price of the identical OEM glass
“competitive memoranda”—that PPG                    product—to devise recommended retail
engaged in concerted action to fix prices.          prices for the products. NAGS devised the
                                                    recommended price by using a particular
        In sum, here the exchanges of               “multiplier” for each type of product.26
information are more tightly linked with            The glass producers knew the multipliers
concerted behavior and therefore they               NAGS used, and were able to calculate
appear more purposive. Several of the key           backwards to the truckload price that
documents emphasize that the relevant               NAGS had utilized. The producers would
price increases were not economically               then align their truckload list prices with
justified or supportable, but required
competitors to hold the line. Others
suggest not just foreknowledge of a single                 26
                                                             The multiplier for domestic
competitor’s pricing plans, but of the plans
                                                    windshields, for example, was 4.06. App.
of multiple competitors. Predictions of
                                                    2980.

                                               26
the price that NAGS had used. As a result,         devised depicts the process. It indicates
the automotive replacement glass                   that producers gave their truckload prices
producers often increased their prices in          to NAGS, NAGS selected a particular
parallel fashion.27                                truckload price, the producers issued a
                                                   “new pricing schedule adjusted to
        Plaintiffs argue that the evidence         NAGS,” and as a result “industry pricing
shows that PPG and other automotive                stabilize[d].” App. 4939.
replacement glass producers agreed to
raise their prices. They provide evidence                  We understand why the NAGS
that although it was against PPG’s official        Calculator would raise suspicion in
policy, PPG provided its truckload pricing         plaintiffs’ minds, and why plaintiffs would
information to NAGS. Plaintiffs also refer         seek discovery regarding PPG’s use of the
to the NAGS website, which at one point            calculator. Cf. Areeda, supra, ¶ 1435g, at
stated: “[M]anufacturers were in conflict          264-65 (discussing the use of “pricing
over their published list prices. As a             manuals”). But publication of pricing
neutral party NAGS was asked to assign             information can have a pro-competitive
list prices to NAGS part numbers,                  effect. As we note above, we should
establishing the NAGS List Price.” App.            therefore hesitate to rest on inference of
6444-45.28 In addition, a chart that LOF           improper collusion from this ambiguous,
                                                   or even pro-competitive, fact. See, e.g., In
       27
                                                   re Baby Food, 166 F.3d at 126; Petruzzi’s,
          PPG, Ford and LOF increased              998 F.2d at 1232. After conducting
the price of windshields by 7% and                 discovery, plaintiffs have failed to adduce
tempered parts by 8%, for example, in              sufficient evidence to create a genuine
February-March of 1992. App. 5913,                 issue of material fact. First, there is no
5917, 7184. Similarly, in January-                 evidence that PPG or any other
February of 1992 they increased                    automotive replacement glass producer
windshield prices by 9% and tempered               exerted influence over the truckload prices
parts by 10%. App. 4899, 7192, 7187.               that NAGS selected to formulate
       28
            A fuller excerpt states:               recommended prices. And there is no

       In the 1950s, manufacturers
       were in conflict over their                        discounting and were based
       published list prices. As a                        on manufacturers’ truckload
       neutral party NAGS was                             prices. NAGS started
       asked to assign list prices to                     publishing the part numbers
       NAGS part numbers,                                 with prices, establishing the
       establishing the NAGS List                         ‘NAGS calculator’.
       Price. These prices reflected
       the industry practice of                    App. 6444-45 (emphasis added).

                                              27
evidence—unlike the evidence we                    challenge the District Court’s ruling on
described above regarding flat glass list          appe al. We review the Co urt’ s
prices—that the automotive replacement             determination for an abuse of discretion.
glass manufacturers agreed to adjust their         See United States v. Castro, 129 F.3d 226,
list prices according to the NAGS                  229 (1 st Cir. 1997).
recommended price. We will therefore
affirm summary judgment on this claim.                     As a general matter, a court should
                                                   allow a witness to invoke his Fifth
            C. Evidentiary Rulings                 Amendment privilege only if the hazard of
                                                   incrimination is “substantial and ‘real,’
       The District Court excluded several         and not merely trifling or imaginary.”
categories of evidence before it decided           United States v. Apfelbaum, 445 U.S. 115,
PPG’s motions for summary judgment.                128 (1980) (citation omitted). Yet “the
Plaintiffs appeal from four of the District        trial judge should order the witness to
Court’s evidentiary determinations. We             answer questions only if it is perfectly
address them in turn.29                            clear, from a careful consideration of all
                                                   the circumstances in the case that the
                                                   answer cannot possibly tend to incriminate
       1. Fifth Amendment                          the witness.” United States v. Washington,
                                                   318 F.3d 845, 856 (8 th Cir.), cert. denied,
       When plaintiffs sought to depose            124 S. Ct. 251 (2003) (internal quotations
Skeddle and Bryant—the former LOF                  and citations omitted); see also United
executives who were charged with crimes            States v. Yurasovich, 580 F.2d 1212,
and who alleged that LOF engaged in                1215-16 (3d Cir. 1978) (“To support a
illegal antitrust activity—they both               contempt citation for a refusal to testify on
asserted their Fifth Amendment privilege           Fifth Amendment grounds . . . it must be
against self incrimination. The District           ‘Perfectly clear from a care ful
Court denied plaintiffs’ motion in which           consideration of all the circumstances in
they urged the Court to compel Skeddle             the case, that the witness (who invokes the
and Bryant to testify. Plaintiffs now              privilege) is mistaken, and that the
                                                   answer(s) cannot Possibly have such a
                                                   tendency to incriminate.’”).
       29
          We do not address the District
                                                           Plaintiffs argue that the Court erred
Court’s other evidentiary rulings, such as
                                                   because (1) all relevant statutes of
its decision to exclude the transcript of
                                                   limitations have run; and (2) the relevant
Skeddle’s grand jury testimony. Plaintiffs
                                                   prosecutorial authorities have stated that
opine that the District Court erred when it
                                                   they do not intend to bring criminal
excluded the testimony, but they do not
                                                   charges against Skeddle or Bryant. It is
appeal from that decision. Plaintiffs’ Br.
                                                   irrelevant, however, that prosecutorial
18.

                                              28
authorities have stated that they do not             the “Queen’s File,” to a grand jury
intend to prosecute Skeddle or Bryant. See           empaneled in the spring of 1996 to
Matter of Special Federal Grand Jury, 819            investigate Skeddle’s (and others)
F.2d 56, 58 (3d Cir. 1987) (“[A] promise             allegations of wrongdoing in the flat glass
by the government not to use the testimony           industry.30
to be compelled, even if approved by a
court, does not strip the recipient of the                  PPG filed two separate in limine
protection of that privilege.”). And                 motions seeking to exclude both
Skeddle and Bryant have sufficiently                 categories of notes, and the District Court
refuted plaintiffs’ statute of limitations           granted its motions because it determined
argument. To be sure,“if a prosecution for           that the notes contain “multiple levels of
a crime, concerning which the witness is             hearsay” and did not fall within any
interrogated, is barred by the statute of            exception to the hearsay rule. App. 47-48,
limitations, he is compellable to answer.”           56-58. “[W]e review the district court's
Brown v. Walker, 161 U.S. 591, 598                   decisions to admit or exclude evidence for
(1896). But, contrary to plaintiffs’                 abuse of discretion, although our review is
assertion, Skeddle and Bryant have                   plenary as to the interpretation or
identified several state statute of                  application of a legal standard underlying
limitations that have not run. In Michigan,          such a decision.” Robinson v. City of
for example, a defendant’s absence from              Pittsburgh, 120 F.3d 1286, 1293 (3d Cir.
the state tolls the statute of limitation for        1997) (citations omitted).
certain of the state’s antitrust laws. See
Mich. Comp. Laws. Ann. §§ 445.781,                          a. Non-Queen’s File Notes
767.24(5). The District Court did not
abuse its discretion by declining to compel                 Plaintiffs argue that many portions
Skeddle and Bryant to testify.                       of Skeddle’s notes tend to support their
                                                     contentions that PPG agreed with its
                                                     competitors to increase prices on at least
       2. Skeddle’s Notes                            two of the three occasions we discussed
                                                     above. With respect to the June-July 1991
       Over the course of the litigation,            price increase, plaintiffs reference a May
plaintiffs obtained a large collection of            31, 1991 note that states: “Glen
Ronald Skeddle’s handwritten notes. The
notes fall into two general categories:
notes that LOF provided to plaintiffs                       30
                                                              There is apparently some amount
during discovery and notes that the DOJ              of overlap between the two categories of
produced to plaintiffs pursuant to an order          notes: LOF had already produced a
of the District Court. App. 10746, 11154.            portion of the notes that plaintiffs also
Skeddle originally provided the latter               obtained as part of the Queen’s File. App.
notes, which the parties have come to call           11154 n.3.

                                                29
[Nightingale] heard that Glaverbec wants             App. 4581. Another note also ostensibly
to move upwards in N.E. Reg’s.” App.                 memorializing a conversation Skeddle had
4567. Similarly, a note that plaintiffs argue        with Glen Nightingale states that
Skeddle wrote no later than May of 1991              Nightingale met with AFG’s Dee
states that Jim Collins, a PPG Regional              Hubbard. The note mentions an
Sales Manager, “mentioned that PPG is                “incremental increase” and states that
looking at the possibility of an inc this            “AFG will lead—before Labor Day.” App.
summer.” App. 3938.                                  3891.

        With regard to the September-                       Similarly, a note from a meeting
October 1992 price increase, plaintiffs              Skeddle had with LOF board member
refer to notes that purportedly memorialize          Tomoaki Abe and dated November 17,
conversations Skeddle had with Glen                  1992 contains the notation: “Mtgs. w PPG,
Nightingale, of Pilkington. First, a note            Guardian re lic’g, prices, etc.” App. 10602.
dated February 6, 1992 provides: “Clearly            Finally, a note that plaintiffs contend
Glen has had discussions w AFG,                      memorializes a July 13, 1992 conversation
Guardian, & probably indirectly w PPG                with Nightingale states:
(crystal tower) re price increases, and is
asking me now to supply him info so that                    Glen then related his
he can initiate more detailed discussions                   inf or ma tion on N orth
with his contacts.” App. 3877. And a note                   American flat glass pricing
that plaintiffs contend pertains to a                       — the info came from
meeting Ske ddle h ad w ith G len                           Hubbard of AFG, and the
Nightingale on April 29, 1992 states:                       top guy at Glaverbel (Asahi)
                                                            who control Glaverbec in
       Glen indicated he would                              Canada, [illegible] controls
       make contacts w AFG and                              AFG in the states.
       Glaverbel/Glaverbec to see
       if he could get them to agree                        The indication is that new
       to come off their silly low                          “ t a rg e t s ” h a v e b e e n
       prices and if he could                               established for AFG and
       initiate a general price                             Glaverbec in Canada @
       increase w/in the next 2                             ~7% above recent
       months.                                              experience—letters will be
                                                            forthcoming to the general
       He indicated he would get                            mkt place explaining new
       back to me to indicate his                           prices as follows:
       findings/effect following his
       calls.                                               [chart omitted]



                                                30
       These prices should go into                  corroborated by t he ‘to tal ity o f
       effect 17th July.                            circumstances’ in the case,” id.; and (4) the
                                                    declarant had personal knowledge (i.e., he
       Glen then related that                       perceived the facts to which the statement
       Hubbard & he have “talked”                   relates), see United States v. Ammar, 714
       and have together convinced                  F.2d 238, 254 (3d Cir. 1983); 5 Jack B.
       PPG to take the lead in                      Weinstein et al., Weinstein’s Federal
       putting up the price by ~7%                  Evidence § 804.06[4] (2d ed. 2003). 31 The
       with letter to go out in Sept.
       92, to take effect Oct. 1,
       1992—with PPG taking the                            31
                                                              Federal Rule of Evidence
       lead.
                                                    804(b)(3) provides:
App. 3893.
                                                           (b) Hearsay exceptions. The
                                                           following are not excluded
       Plaintiffs argue that these
                                                           by the hearsay rule if the
statements are admissible because they are
                                                           declarant is unavailable as a
statements of coconspirators under Federal
                                                           witness:
Rule of Evidence 801(d)(2)(E) and
                                                           ....
therefore not hearsay. Alternatively, they
                                                           (3) Statement against
argue that even if the statements are
                                                           interest. A statement which
hearsay they are admissible as statements
                                                           was at the time of its
against interest under Federal Rule of
                                                           making so far contrary to
Evidence 804(b)(3).
                                                           the declarant's pecuniary or
                                                           proprietary interest, or so far
       We first consider whether the
                                                           tended to subject the
District Court erred in concluding that the
                                                           declarant to civil or criminal
statements were not admissible as against
                                                           liability, or to render invalid
interest under Rule 804(b)(3). A hearsay
                                                           a claim by the declarant
statement is nonetheless admissible if (1)
                                                           against another, that a
“the declarant is unavailable as a witness,”
                                                           reasonable person in the
United States v. Boyce, 849 F.2d 833, 836
                                                           declarant's position would
(3d Cir. 1988); (2) “the statement is so far
                                                           not have made the statement
contrary to his pecuniary, proprietary or
                                                           unless believing it to be
penal interest that ‘a reasonable person in
                                                           true. A statement tending to
the declarant's position would not have
                                                           expose the declarant to
made the statement unless believing it to
                                                           criminal liability and
be true,’” id. (quoting Fed. R. Evid.
                                                           offered to exculpate the
804(b)(3)); (3) “the trustworthiness and
                                                           accused is not admissible
reliability of the statemen t [is]
                                                           unless corrobora ting

                                               31
second and third requirements are                      Skeddle’s statements: (1) actual events did
“somewhat redundant” and often require                 not occur precisely as the notes indicated
“‘a sensitive analysis of the circumstances            they would (e.g., PPG did not “lead” the
in which the statement was made and the                September 1992 price increase); (2)
precise nature of the statement.’” Boyce,              Skeddle’s notes tend to implicate others
849 F.2d at 836 (quoting United States v.              besides himself; and (3) Skeddle may not
Palumbo, 639 F.2d 123, 127 (3d Cir.                    have written the notes contemporaneously
1981)); see also United States v. Moses,               with the events he described in them. App.
148 F.3d 277, 280 (3d Cir. 1998) (“This                10748-50.
determination must be made ‘by viewing
[the statement] in context’ and ‘in light of                   The first two factors do not
all the surrounding circumstances.’”)                  sufficiently impugn Skeddle’s statements.
(quoting Williamson v. United States, 512              To the contrary, discrepancies between
U.S. 594, 603-604 (1994)).                             Skeddle’s statements and later actual
                                                       events could tend to reinforce their
        Here, the District Court concluded             veracity; statements that exactly mirrored
t h a t S k e d d l e’s state m e n t s w e r e        what occurred would arguably be more
inadmissible because they “have not been               suspect. And there is no per se rule that
corroborated by the totality of the                    statements implicating another person in
circumstances.” App. 47. Because this was              misconduct are not against the interest of
the total of the District Court’s analysis,            the declarant. See Moses, 148 F.3d at 280.
the precise basis for this conclusion is               We do not agree with PPG’s assertion that
unclear. In its in limine motion before the            the statements, which relate the
District Court, PPG appears to have                    inculpatory statements of his superiors
offered three reasons why the totality of              (such as Nightingale), do not also
the circumstances do not corroborate                   inculpate Skeddle. Skeddle was the
                                                       President of LOF at the time of the alleged
                                                       conspiracy. Discussions to increase prices
               circumstances clearly                   and Skeddle’s knowledge of those
               indicate        the                     discussions blanket him with antitrust
               trustworthiness of                      liability. Indeed, such liability likely forms
               the statement.                          the basis for Skeddle’s invocation of his
                                                       Fifth Amendment privilege against self
Fed. R. Evid. 804(b)(3). We note that the              incrimination.
Confrontation Clause raises some
additional issues about admissibility of                      We agree, however, that a finding
such testimony in a criminal case, but                 that Skeddle’s notes were not
those concerns are irrelevant in this civil            contemporaneous would support a
case. See Crawford v. Washington, 123 S.               conclusion that the statements are not
Ct. 1354 (2004).                                       reliable or corroborated by the

                                                  32
circumstances. Skeddle left LOF under a              rulings in light of our decision and more
cloud of mutual disaffectio n.                       fully explain any bases for its rulings.32
Consequently, documenting LOF
wrongdoing during a time when LOF was                        Similarly, we will also remand the
alleging that Skeddle himself had engaged            District Court’s determination that the
in wrongdoing would tend to impugn                   statements in Skeddle’s notes were not
Skeddle’s motives and therefore also the             statements of co-conspirators. “In order for
reliability of the statements. But it is not         an out-of-court statement to be admissible
clear that the District Court excluded               pursuant to Rule 801(d)(2)(E), the district
Skeddle’s notes because it found that they           court must find by a preponderance of the
were not contemporaneous. Moreover, it is            evidence that: (1) a conspiracy existed; (2)
not clear that the record supports such a            the declarant and the party against whom
conclusion; on their face, many of the               the statement is offered were members of
notes give no indication that they were ex           the conspiracy; (3) the statement was made
post fabrications.                                   in the course of the conspiracy; and (4) the
                                                     statement was made in furtherance of the
        The District Court’s summary                 conspiracy.” United States v. Ellis, 156
disposition of PPG’s in limine motion
hinders our ability to determine whether it
abused its discretion. Cf. Becker v. ARCO                   32
                                                               In this regard, the District Court
Chemical Co., 207 F.3d 176, 181 (3d Cir.             should determine whether, because the
2000) (“Where, however, the district court           statements at issue were diary entries,
fails to explain its grounds for denying a           Skeddle believed that they would be seen
Rule 403 objection and its reasons for               by anyone. This may bear on whether they
doing so are not otherwise apparent from             qualify as statements against interest.
the record, there is no way to review its            See Zenith Radio Corp. v. Matsushita
discretion.”). Since we conclude that a              Electric Industrial Co., 505 F. Supp. 1190,
jury could find an agreement existed even            1259-60 (E.D. Pa. 1981), issue aff’d In re
absent Skeddle’s notes and we would                  Japanese Electronic Products Antitrust
remand on that basis alone, we believe the           Litigation, 723 F.2d 238, 300 (3d Cir.
best course is to allow the District Court to        1983), rev’d on other grounds sub. nom
consider these evidentiary matters in the            Matsushita Electric Industrial Co. v.
first instance. We will therefore remand             Zenith Radio Corp., 475 U.S. 574 (1986).
the District Court’s determination that              We do not categorically hold that diary
Skeddle’s statements were not against self           entries cannot satisfy the requirements of
interest so that the Court can consider its          Rule 804(b)(3), see Walker v. Lockhart,
                                                     763 F.2d 942, 951 n.18 (8th Cir. 1985) (en
                                                     banc), but we do believe that a searching
                                                     inquiry is appropriate here, In re Japanese
                                                     Electronic Products, 723 F.2d at 300.

                                                33
F.3d 493, 496 (3d Cir. 1998).33                      statements in Skeddle’s notes were made
                                                     in the course of and in furtherance of a
        Here, the District Court determined          conspiracy of which the declarant and PPG
that plaintiffs had not satisfied the second         were members. See United States v.
requirement. It concluded that the                   McGlory, 968 F.2d 309, 334 (3d Cir.
statements in Skeddle’s notes were not               1992) (citing Bourjaily v. United States,
admissible as co-conspirator statements              483 U.S. 171, 175 (1987)); 5 Jack B.
because “plaintiffs have failed to adduce            Weinstein et al., Weinstein’s Federal
sufficient evidence that PPG was a co-               Evidence § 801.34[6][a] (2d ed. 2003).
conspirator in the alleged price-fixing              And it was the District Court’s role to
conspiracy.” App. 48.34 In other words,              determine whether plaintiffs satisfied their
although the Court concluded that there              burden. See Bourjaily, 483 U.S. at 175;
was evidence that a conspiracy existed, see          Ammar, 714 F.2d at 247 n.5. In making
app. 46, it found that there was insufficient        this factual determination, a district court
evidence that PPG was a party to the                 is not bound by the rules of evidence. See
conspiracy.                                          Bourjaily, 483 U.S. at 178-79; Fed. R.
                                                     Evid. 104(a). Thus a district court can
       It was plaintiffs’ burden to show by          consider hearsay and other inadmissible
a preponderance of the evidence that the             evidence. See McGlory, 968 F.2d at 334.
                                                     And it must consider the content of the
       33
                                                     alleged coconspirator statement as well,
         There is no requirement that the            although the statements require
declarant be speaking from personal                  independent corroboration. See Fed. R.
knowledge. See United States v. Ammar,               Evid. 801(d)(2)(E) (“The contents of the
714 F.2d 238, 254 (3d Cir. 1983); 5 Jack             statement shall be considered but are not
B. Weinstein et al., Weinstein’s Federal             alone sufficient to establish . . . the
Evidence § 801.23[2] (2d ed. 2003).                  existence of the conspiracy and the
       34
         The District Court characterized            participation therein of the declarant and
the admissibility of coconspirator                   the party against whom the statement is
statements as an “exception to the hearsay           offered . . . .”).
rule.” Rules 803 and 804 set forth
exceptions to the hearsay rule; that is, they                The Court’s summary disposition
explain when statements are admissible               again hampers our review of its decision
even though they qualify as hearsay. Rule            for an abuse of discretion, however, which
801(d), however, sets forth statements that          is the standard of review we must apply to
are admissible because they do not                   its Rule 801(d)(2)(E) determinations. See,
constitute hearsay, including statements             e.g., United States v. Local 560 (I.B.T.),
“by a coconspirator of a party during the            974 F.2d 315, 337 (1992). Insofar as the
course and in furtherance of the                     Court based its determination on a
conspiracy.” Fed. R. Evid. 801(d)(E).                conclusion that there was insufficient

                                                34
evidence from which a jury could                     tending to implicate PPG in a price-fixing
conclude that PPG entered into an                    conspiracy, and can further explain any
agreement to fix prices, the District Court          bases it might have for its reasoning.35
erred for the reasons we set forth above.
But simply because a jury could find by a                   Finally, we note that many of the
preponderance of the evidence that PPG               notes contain multiple levels of hearsay.
entered into a conspiracy, it is not the case        See, e.g., Carden v. Westinghouse Elec.
that the District Court must find that               Corp., 850 F.2d 996, 1001-02 (3d Cir.
plaintiffs showed by a preponderance of              1988); Fed. R. Evid. 805. One note states,
the evidence that PPG entered into an                for example, that Nightingale “related”
agreement. Any particular factual                    that he and an AFG executive “convinced
determination requires making a number               PPG to take the lead in putting up the price
of more particularized factual                       by ~7% with letter to go out in Sept. 92, to
determinations and weighing the relevant             take effect Oct. 1, 1992—with PPG taking
importance of those determinations. And              the lead.” App. 3893. The note itself
two factfinders could feasibly reach                 (Skeddle’s statement) and Nightingale’s
different conclusion, especially under a             assertion that he convinced PPG to take
preponderance of the evidence standard.              the lead in increasing prices are both out-
To be sure, however, “the Federal Rules              of-court statements that plaintiffs seek to
of Evidence are to be liberally construed            use to prove the truth of the matter
in favor of admissibility.” United States v.         asserted. Either or both might be
Pelullo, 964 F.2d 193, 204 (3d Cir. 1992).           admissible as statements of coconspirators
                                                     as well as statements against interest.
       Because we will remand plaintiffs’            Again, we think the District Court should
flat glass price fixing claim for further            make these determinations in the first
proceedings, we again conclude that the              instance, taking into account our
best course is to remand the District
Court’s determination that the statements
in Skeddle’s notes were not coconspirator                   35
                                                               PPG argues that the District
statements. See In re Japanese Electronics           Court concluded that the statements in
Products Antitrust Litigation, 723 F.2d              Skeddle’s notes were not in furtherance of
238, 263 (3d Cir. 1983) (remanding Rule              any conspiracy, ostensibly because—as
801(2 )(E) determination to be                       PPG argues—Skeddle did not create the
reconsidered), rev’d on other grounds sub.           notes at the same time as the events he
nom. Matsushita Electric Industrial Co. v.           purports to describe in them. But nothing
Zenith Radio Corp., 475 U.S. 574 (1986).             in the Court’s decision indicates that this
Thus the District Court can consider                 was a basis for its determination that the
whether the statements in Skeddle’s notes            statements were inadmissible. The District
are coconspirator statements with the                Court will surely consider PPG’s
benefit of our discussion of the evidence            arguments in this regard on remand.

                                                35
discussion in this opinion.                         decision. Cf. United States v .
                                                    Himmelwright, 42 F.3d 777, 781 (3d Cir.
            b. Queen’s File Notes                   1994) (looking to whether bases for
                                                    district court’s decision was “apparent
        The District Court concluded that           from the record” where the court did not
the statements in the Queen’s File notes,           explain the grounds for its decision). PPG
like the statements in the other Skeddle            argued that most of the notes in the
notes, were not ad missible as                      Queen’s File “were written after Mr.
coconspirator statements because                    Skeddle’s termination as chief executive
“plaintiffs have failed to adduce sufficient        officer of LOF on May 10, 1993, when he,
evidence that PPG was a co-conspirator in           Edward Bryant (then LOF’s head of
the alleged price-fixing conspiracy.” App.          manufacturing operations), and Darryl
57. It also concluded that the statements           Costin (then LOF’s head of technical
were hearsay and the Queen’s File was not           operations) were fired amidst allegations
admissible under the statement against              of actionable self-dealing.” App. 11154.
interest exception because “the statements          Many of the notes appear, on their face, to
contained therein are not contrary to               support PPG’s contention. They are
Skeddle’s pecuniary or penal interest” and          written in the third-person, for example,
because “the documents’ trustworthiness             and they refer to events that post-date
and reliability are questionable given the          Skeddle’s termination. See, e.g., Supp.
totality of the circumstances.” App. 57.36          App. 437. One note, for instance, refers to
                                                    the “summer of 1993” in the past tense.
       Since this was the sum of the                App. 11154.
District Court’s reasoning, we turn to
PPG’s arguments before the District Court                   If the District Court concluded that
to discern the bases for the Court’s                the notes were not contemporaneous, it
                                                    could have concluded that the statements
                                                    contained therein were not in furtherance
       36
         The District Court also concluded          of a conspiracy or corroborated by the
that the Queen’s File and non-Queen’s               totality of the circumstances; that is, it
File notes did not fall within the business         could have concluded that the statements
records exception of Rule 803(6). App.              were not admissible as coconspirator
47, 56-57. And the Court found that the             statements or statements against interest. If
“Queen’s File does not qualify as an                we could conclude that the District Court
admission by a party opponent under                 excluded all the Queen’s File notes on that
Rules 801(d)(2)(A), (B), (C), or (D).”              basis, we would affirm the District Court’s
App. 57-58. Plaintiffs do not argue that            decision. But PPG concedes that not all
the District Court erred in these                   the Queen’s File notes appear to be non-
determinations, and we therefore do not             contemporaneous. See PPG Br. 94, Tr. of
address them.                                       Oral Argument 46. We will therefore

                                               36
remand the District Court’s decision to             plaintiffs, at “opportune times” for price
exclude the Queen’s File notes for the              fixing.
same reasons we remand its determination
to exclude Skeddle’s other notes. We                        The District Court concluded that
think it best for the District Court to have        while the evidence constituted “other bad
the opportunity to make these evidentiary           acts” evidence under Federal Rule of
determinations with the benefit of our              Evidence Rule 404(b), it was admissible
discussion here.                                    for other acceptable purposes (e.g. motive,
                                                    opportunity, or intent). Yet the Court
       3. Evidence Concerning                       excluded the evidence because it
          OEM Glass                                 determine that the evidence’s probative
                                                    value was substantially outweighed by the
        As we explained above, PPG and              danger of unfair prejudice. App. 54-55.
others fabricated flat glass into products          This is a standard Rule 403 balance, which
for use in automobiles. Some of those               we review with “substantial deference.”
products—called “original equipment                 McQueeney v. Wilmington Trust Co., 779
manufacturer” gla s s (“ O EM                       F.2d 916, 922 (3d Cir. 1985).37
glass”)—were fabricated for use in new
automobiles. Others were fabricated for
use as automotive replacement parts. The                   While evidence that PPG and LOF
latter products—called automotive                   conspired together in the OEM market
replacement glass—are the same as OEM               would be relevant to plaintiffs’ claim that
glass products, but the markets for the two         PPG also conspired to fix prices in the
are distinct.                                       market for flat glass, see In re High
                                                    Fructose Corn Syrup, 295 F.3d at 661
       In order to prove that PPG                   (noting that defendant conceded to having
conspired to fix the price of flat glass,
plaintiffs offered evidence that they argue                37
shows that PPG conspired with LOF to fix                     PPG also argues that we should
the price of OEM glass products.                    affirm the District Court’s decision
Specifically, plaintiffs argue that meetings        because a reasonable jury could not
and conversations occurred between                  conclude that PPG committed the “other
Edw ard Bryant— w ho was LOF’s                      bad acts”—conspiring in the OEM
Executive Vice President in charge of the           market—that plaintiffs argue tend to show
firm’s flat glass, automotive replacement           that PPG conspired to fix the prices of flat
glass, and OEM businesses—and Frank                 glass. See Huddleston v. United States,
Archinaco (the head of PPG’s automotive             485 U.S. 681, 689 (1988). The District
replacement glass and OEM businesses).              Court did not exclude the OEM glass
These meetings and discussions were                 evidence on that basis, however, and we
private and occurred, according to                  need not address PPG’s argument since
                                                    we affirm on other grounds.

                                               37
fixed prices on related products during the
same time frame as the alleged
conspiracy), Areeda, supra, ¶ 1421, at 145,
plaintiffs’ evidence here is not particularly
probative of any OEM glass conspiracy.
The weakness of this evidence also
mitigates any danger of unfair prejudice.
But we cannot say that the District Court
abused its discretion in weighing these
countervailing considerations, and we will
therefore affirm the Court’s decision to
exclude the OEM glass evidence.

              III. Conclusion

        We will affirm the District Court’s
decision granting summary judgment on
plaintiffs’ claim that PPG conspired to fix
the prices of automotive replacement
glass. We conclude, however, that there is
sufficient evidence in the record—not
taking into account evidence the District
Court excluded— from which a reasonable
jury could find that PPG conspired to fix
the prices of flat glass. We will therefore
reverse the District Court’s judgment and
remand for further proceedings. In
addition, we will affirm the District
Court’s decisions declining to compel
Skeddle and Bryant to testify and
excluding evidence regarding OEM glass.
But we will remand the Court’s decision to
exclude Skeddle’s notes so that the Court
can consider its ruling in light of our
opinion here and have a further
opportunity to explain the bases for its
decisions.




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