b. Discussion of Prices
Plaintiffs point to four occasions on which Cargill employees discussed citric acid prices with the conspirators as evidence that they were colluding to set prices. Although the exchange of confidential information about specific sales to specific customers can be evidence of anticompetitive behavior, see United States v. Container Corp. of America, 393 U.S. 333, 334-37, 21 L. Ed. 2d 526, 89 S. Ct. 510 (1969), the exchange of publicly available information does not support an inference of conspiracy. See Wilcox v. First Interstate Bank of Oregon, 815 F.2d 522, 526 (9th Cir. 1987). Some of the price information exchanged in this case was already public knowledge. By the time an HLR employee mentioned at an April 17, 1991 meeting with Cargill that the price of citric acid was $ 0.68/lb (Pls.' Ex. 90, 150), both Cargill and HLR had already informed their customers of that price (Def's App. 52, 56); because each company had already set that price, the statement does not tend to show that the parties used their meeting to collusively arrive at it. Similarly, by the time Cargill informed H&R of its price increase to $ 0.82/lb at a meeting on September 16, 1992 (Pls.' Ex. 163 at 666), it had already announced that price increase to its customers (Def's App. 51). Moreover, Cargill employee Paul Conway, who was present at the meeting, testified at his deposition that although he did not recall stating that Cargill was increasing its price to $ 0.82, "If I knew of any price, it was something that was already publicly available." (Dep. of Paul Conway, Def.'s App. 46, at 43.)
Other mentions of price were innocuous for different reasons. A letter from ADM to Cargill informing them of a price increase appears to relate to a particular sale from ADM to Cargill, not to the ADM's general list price. (See Pls.' Ex. 91.) The negotiation of a price in the course of a swap agreement between Cargill and JBL was done, according to Cargill, because it was required by United State transfer pricing law. (Def's App. 42, at 123-25.) With regard to all of these meetings, the fact that Cargill discussed prices does not necessarily mean that it agreed to fix prices, or that it improperly exchanged price information. These meetings are circumstantial evidence that is weak at best; they do not support a rational inference that the Cargill was a member of the conspiracy.
c. Opportunities to Conspire
Finally, plaintiffs argue that Cargill's meetings with the conspirators provided opportunities to conspire, and thus are a "plus factor" supporting an inference of conspiracy. Where cooperation is necessary for a legitimate business purpose, the mere opportunity to conspire at business meetings is insufficient to support an inference of conspiracy. See Wilcox, 815 F.2d at 527. In evaluating plaintiffs evidence, the Court notes first that one of the disputed meetings took place in 1990, before the admitted conspiracy among the ADM, HLR, H&R, and JBL had even begun. Cargill asserts that this meeting, as well as all the others, were conducted for proper, non-conspiratorial, purposes. Specifically, it asserts that its two meetings with HLR in 1991 and its two meetings with JBL in June 1994 related to Cargill's potential acquisition of citric acid plants. (Def's App. 60.) Cargill argues that at its September 1992 meeting with H&R, the. corporations discussed the possible sale of glucose to H&R. (Id.) Cargill has thus adequately rebutted this "opportunity" plus factor. Moreover, these meetings have even less probative value when viewed in light of the way the conspiracy admittedly functioned. When H&R, HLR, JBL, and ADM decided to fix prices, they did so by meetings among the "masters" exclusively devoted to price fixing. Cargill was never present at those meetings. Hans Hartmann's deposition does not indicate that the conspirators used legitimate meetings as a front for discussions of price fixing. Nor do plaintiffs even argue that the disputed meetings were attended by the "masters" or the "Sherpas," the only officials at the conspirator corporations who knew about the price-fixing scheme.
4. Notice of Competitors' Price Increases
Plaintiffs assert that Cargill had advance notice of the conspirators' price increases. Although such advance notice would tend to support an inference of conspiracy,
the evidence presented in this case does not suggest that Cargill in fact had advance notice. Plaintiffs point the Court to pricing announcements of the conspirators which were found among Cargill's records, and to Cargill pricing announcements which were found in the conspirators' records. (Pls.' Ex. 111-41.) These pricing announcements were apparently sent to customers. Based on their date stamps, they were received by the competitor corporations only after they had been mailed to customers. For example, the H&R pricing announcement in Plaintiffs' Exhibit 111 was mailed to customers on February 24, 1992; it was faxed to Cargill on March 2, 1992. The Court can find no document that appears to have been sent to the competitor corporation first.
The document that comes the closest is plaintiffs' exhibit 113, an ADM price announcement letter that was faxed from one Cargill facility to another on March 13, 1992, which is the same date that appears on the announcement. Plaintiffs argued at the hearing that this letter could not possibly have reached Cargill on the same day it was sent to ADM's customers unless ADM faxed it directly to Cargill. That is a speculative conclusion. Nothing on the fax indicates how Cargill received the letter. The letter may well have been faxed to Cargill from one of its customers, who may have received it from ADM by fax.
There is in fact evidence that Cargill's customers sent it copies of price increases that had been announced by Cargill's competitors. (See Def's App. 41 at 233 (deposition testimony of Cargill employee Robert Simpson that "generally if a customer referred to a price announcement, we would ask them to fax it to us.").) The attempt to glean from customers market information about competitors is proper competitive behavior. Holding it to be evidence of antitrust violation would significantly deter such behavior, in violation of Petroleum Products.
5. Failure to Expand Capacity as Much as Planned
Plaintiffs argue that Cargill's decision to expand its capacity less than originally planned indicates that it was accommodating the cartel by restraining production. After announcing plans in March 1992 to expand its production capacity from 80 to 160 million pounds per year, in October 1992 Cargill chose instead to expand its plant to 120 million pounds. It is impossible to draw an inference of conspiracy from this evidence. Over the time period in question, Cargill was not reducing its production, or even holding it steady. Instead, it was increasing production by half. Moreover, an internal Cargill report from October 1992 documents several business reasons for the slower expansion. Cargill was concerned that the switch to liquid extraction technology could decrease product quality and alienate customers, and that the increase in production could drive down prices (although the impact was not expected to be "serious"). (Def's App. 21 at 257-59.) Given these circumstances, no reasonable juror could conclude that Cargill's business decisions were evidence that they were participating in the conspiracy.
6. Flat Market Share
In a related vein, plaintiffs allege that Cargill's market share, after growing rapidly between 1990 and 1993, remained flat between 1993 and 1995. The evidence, though not entirely clear on this point, belies plaintiffs' claim. According to Cargill's internal documents, its North American market share grew from 18.7% in 1993 to 21.0% in 1994. (Def.'s App. 27, at 5.)
Moreover, Ernest Micek, a Cargill employee, testified that Cargill's market share 'grew annually." (Def.'s App. 1 at 377.) Plaintiffs assert that Cargill's market share was 22% in 1993, and 21% in 1994 and 1995. As evidence, plaintiffs cite to well over 100 pages of Cargill strategic reports in which the Court is unable to find any clear statement of Cargill's market share. (Pls.' Ex. 92-95.)
The evidence thus indicates that although the growth rate of Cargill's market share slowed during the years of the conspiracy, the share nevertheless increased more than two percent between 1993 and 1995. During this time, the conspirators were allocating market share to within a tenth of a percent. It is impossible to draw an inference of conspiracy from Cargill's market share when it changed so much more than would have been allowed had it been participating in the conspiracy.
7. Fifth Amendment Invocations of Conspirators7
Plaintiffs seek to introduce evidence of numerous Fifth Amendment invocations by the conspirators. Such invocations are admissible in a civil case as long as they are relevant and not otherwise barred by the rules of evidence. See FDIC v. Fidelity & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995). The Court holds that the depositions are not relevant to this case. When asked whether Cargill was involved in the conspiracy, numerous conspirators invoked their Fifth Amendment right against self-incrimination, doing so for every single question asked. Plaintiffs assert that the conspirators would have exonerated Cargill if they could have done so truthfully, for doing so would have reduced the amount of antitrust injury suffered by the plaintiff class, thus lessening the possible scope of their joint and several treble damage liability. (Pls.' Req. for Jud. Notice of Fifth Amendment Dep. at 6 n.9.) That is pure speculation and lacks logical support.
Many of the questions in the deposition were phrased in a way that made it impossible for the deponents to exonerate Cargill without acknowledging the existence of a conspiracy. For example, one deponent was asked whether "a representative of Haarmann & Reimer participated in meetings with representatives of other defendants, including Cargill, and agreed to fix, maintain the price of citric acid in the United States and around the world?" (Pls.' Req. for Jud. Notice, Ex. 1.) The only inference the Court can draw from the deponent's invocation of the Fifth Amendment in response to that question is that the deponent was refusing to address whether Haarman & Reimer participated in a conspiracy. Although some of the other questions involved Cargill only, the deponents could not have answered those questions, even if they believed Cargill innocent, without appearing to be hiding something in the questions they had refused to answer. Once a party invokes the Fifth Amendment for any question, it is its right to invoke it for all questions.
For that reason, no inference that Cargill conspired can fairly be drawn from these depositions.
Even drawing all inferences in plaintiffs' favor, as the Court must, the evidence in this case fails to raise any genuine issue of fact that defendant Cargill was a member of the conspiracy to fix citric acid prices. Drawing an inference of conspiracy from the evidence proffered. by plaintiffs would require the sort of speculation and guesswork that the Court is forbidden to undertake.
Because no reasonable jury could, on the basis of this record, conclude that defendant Cargill was a member of the conspiracy, the Court GRANTS defendant's motion for summary judgment. Judgment will be entered in accordance with this order.
Dated: January 23, 1998
FERN M. SMITH
United States District Judge