# Amicus Curiae Brief — Hahnaman Albrecht, Inc. v. Potash Corp. of Saskatchewan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 815

## Text

# Supreme Court, U.S.
No. 99-1844 FILED
In The JUN 1 6 2000
Supreme Court of the United States
: CLERK

HAHNAMAN ALBRECHT, INC., et al.,

Petitioners,
vV.

POTASH CORPORATION OF
SASKATCHEWAN, INC., et al.,

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
¢

BRIEF OF AMICI CURIAE STATES OF ALABAMA,
ARKANSAS, CALIFORNIA, COLORADO,
CONNECTICUT, DELAWARE, DISTRICT OF
COLUMBIA, FLORIDA, HAWAII, IDAHO, IOWA,
KANSAS, LOUISIANA, MAINE, MARYLAND,
MICHIGAN, MINNESOTA, MISSISSIPPI,
MISSOURI, NEW HAMPSHIRE, NEW MEXICO,
NEW YORK, NEVADA, NORTH CAROLINA,
NORTH DAKOTA, NORTHERN MARIANA
ISLANDS, OHIO, PENNSYLVANIA, PUERTO RICO,
SOUTH CAROLINA, SOUTH DAKOTA, TEXAS,
VERMONT, AND WEST VIRGINIA,

IN SUP’ORT OF PETITIONERS
¢

Mark Pryor Mike Hatcu

Attorney General Attorney General

*TERESA BROWN Jutie Ratston AOKI

Senior Assistant Assistant Attorney
Attorney General General

323 Center St., Ste. 200 445 Minnesota St., #1200

Little Rock, AR 72201 St. Paul, MN 55101-2130

(501) 682-3561 (651) 296-2622

*Counsel of Record
[Additional Counsel On Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

239?

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TABLE OF CONTENTS

Page
prt Be yy) by. ee nn rn ii
INTERESTS OF THE AMICI STATES............... 1
REASONS FOR GRANTING THE WRIT ........... 3
I 6 6o eee nek eee Rl eaivane se cekdawax ees +

I. THERE IS A WIDENING SPLIT IN THE CIR-
CUITS OVER THE PROPER SUMMARY JUDG-
MENT STANDARD TO BE APPLIED IN
ANTITRUST CONSPIRACY CASES............ +

Il. THIS ISSUE IS IMPORTANT BECAUSE THE
SUMMARY JUDGMENT STANDARD SET BY
THE EIGHTH AND NINTH CIRCUITS WILL
UNDULY ELIMINATE VALID ANTITRUST
Re Ne MEIN ass 00:45:45 Veen cau baassss 8

Ill. THE DECISION OF THE EIGHTH CIRCUIT
CONFLICTS WITH SUPREME COURT PRECE-
NUT <5 GEG EEN 5g 4K 0k Nan dons Dae hR Ras GORNS 10

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Apex Oil Co. v. DiMauro, 822 F.2d 246 (2d Cir. 1987) ....

Continental Ore Co. v. Union Carbide & Carbide
ee ee ee ee re

Eastman Kodak Co. v. Image Tech. Servs., 504 U.S.
MER WRMOES OR hadewses eedisaet eNae ee es 8, 11,

ES Dev., Inc. v. RWM Enters., Inc., 939 F.2d 547 (8th
Cat SE 6th deck See eae ek

Ezzo’s Invs., Inc. v. Royal Beauty Supply, Inc., 94
ee Se CU Se Bao 6 shh din np eek

Florida et al. v. Nine West Group, Inc., No. 00 Civ.
1707 (S.D.N.Y. filed March 6, 2000) ...........

Georgia v. Evans, 316 U.S. 159 (1942) ............
Georgia v. Pennsylvania R.R. Co., 324 U.S. 439
NES Saving 8 SEK a wha eek Ceca e es Rae POLIS
i ee roy ere perry tena a serene anny ey
In re Brand Name Prescription Drugs Litig., 123 F.3d
599 (7th Cir. 1997), cert. denied, 522 U.S. 1153
Ce EEE Eee Pe ee CO eye Ear Ee fr
In re: Citric Acid Litig., 191 F.3d 1090 (9th Cir. 1999)
In re Coordinated Pretrial Proceedings in Petroleum

Prods. Antitrust Litig., 906 F.2d 432 (9th Cir.
cg ee Perry Peroe re rr ens aire pe

Page

iii

TABLE OF AUTHORITIES - Continued

Page
In re Ins. Antitrust Litig., 938 F.2d 919 (9th Cir.
1991), aff'd in part, rev'd in part sub nom. Hartford
Fire Ins. Co. v. California, 509 U.S. 764 (1993)....... 1
In re Toys “R” Us Litig., 191 FR.D. 347 (E.D.N.Y.
REE ECE ORE ECC Or een Pree Fee ee 1
Local Union No. 189, Amalgamated Meat Cutters v.
pewel Tea Co., 36i US. G76 (96S) occ ec ciaaiss. 2
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
fe | ee eevee rT Ter reer ers passim

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Dela-
ware Co., 998 F.2d 1224 (3rd Cir. 1993)..... 6&4; 3: i2

STATE CASES
Carl N. Swenson Co. v. E.C. Braun Co., 272 Cal App.
2d 366, 77 Cal. Rep. 378 (Cal. Ct. App. 1969)...... 2

State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144
OE We © SEs ck Son aud bewen cine sue bau e kak. 2

State by Humphrey v. Alpine Air Prods., Inc., 490
N.W.2d 888 (Minn. Ct. App. 1992), aff'd, 500
PE. Wee Fae CO TOW 6c ia Sie eiwddccccanes oa 2

X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d
Pee Ae POEs kwhkG aback s Venercnns saad ceadeaks 2

STATUTES AND RULES
Sr ee PEE ca cies Sen dkestdcslceus¥adsaenenan 4

iv

TABLE OF AUTHORITIES —- Continued
Page

PERIODICALS

Editors, Judges Versus Juries in Antitrust: Rush to
Summary Judgment, 20 Antitrust L. & Econ. Rev.
Se es es Bee kb ace her ca ce mane kes eee 9

Thomas Greene et al., State Antitrust Law and
Enforcement, PractisinG Law Institute, 1117 PLI/
ee Le reer rere errr. 9

INTERESTS OF THE AMICI STATES

Under the rule adopted by the Eighth Circuit, anti-
trust suits alleging horizontal price-fixing will rarely sur-
vive the summary judgment stage if the suits are based
on circumstantial evidence. Because most horizontal
price-fixing cases must by necessity rely on such evi-
dence, the consequence of that rule - which the Ninth
Circuit has also adopted - is to create a virtually insur-
mountable barrier to the successful prosecution of one of
the most pernicious forms of conduct covered by the
antitrust laws. The thirty-four Amici States listed on the
front cover have a compelling interest in reversing that
incorrect holding, and in preserving the ability of anti-
trust plaintiffs and law enforcers to challenge horizontal
price-fixing conspiracies.

The undersigned Attorneys General are the chief law
enforcement officers of their states and are charged with
the duty of enforcing the antitrust laws. They accomplish
this in several ways. In their capacity as parens patriae,
they are authorized to bring federal antitrust actions on
behalf of citizens of their states.1 As counsel for states,
state agencies and political subdivisions, Attorneys Gen-
eral often file federal antitrust actions seeking damages
and injunctive relief.2 Further, Attorneys General are the

1 15 U.S.C. § 15 (1998). See Georgia v. Pennsylvania R.R. Co.,
324 U.S. 439 (1945) (acknowledging the common law parens
patriae authority of the States); In re Toys “R” Us Litig., 191 F.R.D.
347 (E.D.N.Y. 2000); and Florida et al. v. Nine West Group, Inc., No.
00 Civ. 1707 (S.D.N.Y. filed March 6, 2000).

2 See Georgia v. Evans, 316 U.S. 159 (1942); In re Ins. Antitrust
Litig., 938 F.2d 919 (9th Cir. 1991), aff'd in part, rev'd in part sub
nom. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).

primary public enforcers of state antitrust laws, which are
often interpreted in conformity with federal law. The
Amici States, through their Attorneys General, thus play
a major role in antitrust enforcement and have a substan-
tial interest in ensuring that federal antitrust laws are
interpreted in accordance with sound antitrust policy and
with this Court’s prior decisions.

The ability to prosecute conspiracies that unreason-
ably restrain trade when only circumstantial evidence of
conspiracy is available is of vital importance to the Attor-
neys General, particularly when such conspiracies are
between competitors to fix prices. A law enforcer or
plaintiff by necessity must generally rely on circumstan-
tial evidence and the inferences that may be drawn from
such evidence to prove an alleged conspiracy, as direct
evidence of conspiracy is rarely available.* Under the
Eighth Circuit’s decision, however, plaintiffs and law
‘enforcers would be rendered effectively unable to with-
stand summary judgment challenges so long as the proof
consists solely of circumstantial evidence.

The issues involved in this case are of major impor-
tance to the preservation of free competition. For that

3 See, e.g., Carl N. Swenson Co. v. E.C. Braun Co., 272 Cal.
App. 2d 366, 77 Cal. Rep. 378, 379-80 (Cal. Ct. App. 1969); State
by Humphrey v. Alpine Air Prods., Inc., 490 N.W.2d 888, 894
(Minn. Ct. App. 1992), aff'd, 500 N.W.2d 788 (Minn. 1993); X.L.O.
Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518 (N.Y. 1994);
State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N.W.2d 1
(1966).

+ See, e.g., Local Union No. 189, Amalgamated Meat Cutters v.
Jewel Tea Co., 381 U.S. 676, 720 (1965); accord ES Dev., Inc. v. RWM
Enters., Inc., 939 F.2d 547, 553-54 (8th Cir. 1991).

reason, and those set forth below, the Amici States
strongly urge this Court to grant the petition for cer-
tiorari.

REASONS FOR GRANTING THE WRIT

In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), this Court held that “if the factual
context renders respondents’ claim implausible — if the
claim is one that simply makes no economic sense -
respondents must come forward with more persuasive
evidence to support their claim than would otherwise be
necessary.” The Eighth Circuit, in a 6-5 en banc decision,
has broadly extended Matsushita to cases in which the
claims make obvious economic sense, namely, claims of
horizontal price-fixing. In the case below, Petitioners
alleged that a dramatic 48% increase in the price of gran-
ular grade potash, which was industry-wide and long
enduring, was the result of a horizontal price-fixing
agreement.> The Eighth Circuit drastically limited the
inferences that can be drawn from circumstantial evi-
dence in such horizontal price-fixing cases, essentially
placing the burden on the plaintiffs to disprove - at the
summary judgment stage - the defendants’ proffered
explanations for the circumstantial evidence. Pet. App.
A-6 - A-19.

5 This percentage increase was calculated by comparing the
September 1987 price of $58.00 per ton for granular grade
potash to the January 1988 price of $86.00 per ton, although
prices varied somewhat during the course of the alleged
conspiracy. Pet. App. A-24.

As the dissent below stated: “Because conspirators
cannot be relied upon either to confess or to preserve
signed agreements memorializing their conspiracies, the
court’s requirement for direct evidence will substantially
eliminate antitrust conspiracy as a ground for recovery in
our circuit.” Pet. App. A-20. The Eighth Circuit’s opinion
conflicts with thoughtful decisions of the Third, Sixth and
Seventh Circuits, conflicts with the well established pre-
cedent of this Court, and limits the ability of state and
federal regulators to enforce the antitrust laws effectively.
For each of these reasons, certiorari should be granted.

+

ARGUMENT

I. THERE IS A WIDENING SPLIT IN THE CIRCUITS
OVER THE PROPER SUMMARY JUDGMENT
STANDARD TO BE APPLIED IN ANTITRUST
CONSPIRACY CASES.

In Matsushita, this Court addressed the standards of
proof necessary to survive a summary judgment motion
in a case alleging violations of Section 1 of the Sherman
Act, 15 U.S.C. § 1 (1998). Matsushita is recognized as
controlling precedent and cited extensively in antitrust
cases in which the proof offered of an alleged conspiracy
is circumstantial. However, the standards set forth in
Matsushita have been interpreted in divergent ways
among the circuits, resulting in conflicting opinions and
an uneven application of the law.

Matsushita involved allegations of a predatory pric-
ing scheme determined to be economically implausible.

In Matsushita, this Court acknowledged the well estab-
lished principle that when considering a motion for sum-
mary judgment, the court must view all facts and
inferences to be drawn from them in the light most favor-
able to the party opposing the motion.® This Court lim-
ited that well established principle by limiting the
inferences a court may draw from ambiguous evidence in
a case brought under Section 1. Emphasizing the impor-
tance of determining the economic plausibility of the
plaintiff’s theory in such a case, this Court cautioned:

It follows from_these settled principles that if
the factual context renders respondents’ claim
implausible - if the claim is one that simply
makes no economic sense - respondents must
come forward with more persuasive evidence to
support their claim than would otherwise be
necessary.

Matsushita, 475 U.S. at 587.

The case below involved allegations of horizontal
price-fixing, a per se violation of the antitrust laws. Unlike
the allegations of predatory pricing in Matsushita, the
plaintiffs’ theory in the case below - that defendants
agreed to raise prices and keep prices high — made eco-
nomic sense for the defendants. The Eighth Circuit,
although professing to rely on the holding in Matsushita,
failed to take into account the economic plausibility of
the plaintiffs’ theory when evaluating the circumstantial
evidence presented. Rather it required that the evidence
rise to the same level of proof as that required if the
theory had been economically implausible.

© See Matsushita, 475 U.S. at 588.

The Ninth Circuit took a similar stance in the recent
case of In re: Citric Acid Litig., 191 F.3d 1090, 1094-97 (9th
Cir. 1999). That case, like the case below, involved allega-
tions of horizontal price-fixing. Although the Ninth Cir-
cuit outlined what it considered to be the “two-part test”
of Matsushita,’ it failed to recognize the different eviden-
tiary standards applicable only when the plaintiffs’
claims are economically implausible.

In stark contrast to the Eighth and Ninth Circuits, the
Third, Sixth, and Seventh Circuits, relying on the lessons
of Matsushita, have taken into consideration the economic
plausibility of the plaintiff’s theory and recognized that
the permissible range of inferences should be greatly
restricted only if the theory is found to be economically
implausible.® See, e.g., Petruzzi’s IGA Supermarkets, Inc. v.
Darling-Delaware Co., 998 F.2d 1224, 1232-33 (3d Cir. 1993)
(citing to Matsushita as requiring “sufficiently unam-
biguous” evidence to support inferences of a predatory

7 In re: Citric Acid Litig., 191 F.3d at 1094.

8 Arguably, the Ninth Circuit’s decision in In re: Citric Acid
Litig., 191 F.3d 1090 (9th Cir. 1999) is inconsistent with its
decision in In re Coordinated Pretrial Proceedings in Petroleum
Prods. Antitrust Litig., 906 F.2d 432, 438-40 (9th Cir. 1990) (stating
that Matsushita should not be read to permit a court to grant
summary judgment for defendants whenever circumstantial
evidence is equally consistent with both inferences of
conspiracy and permissible conduct; rather, Matsushita merely
limits the range of inferences that can be drawn from
ambiguous evidence depending on the potential effects of such
inferences on procompetitive behavior). The internal disarray,
exemplified by these two Ninth Circuit decisions, in addition to
the split between circuits on this issue, demonstrates the need
for guidance by this Court.

pricing conspiracy when plaintiffs’ theory was implausi-
ble and carried the risk of restricting highly procompeti-
tive conduct (low prices)); Ezzo’s Invs., Inc. v. Royal Beauty
Supply, Inc., 94 F.3d 1032, 1036 (6th Cir. 1996) (distin-
guishing the price-fixing allegation at bar from Matsushita
by calling it the “classic anti-trust situation: an attempt to
avoid a competitive marketplace by setting prices at an
artificially high level”); In re Brand Name Prescription
Drugs Littg., 123 F.3d 599, 613-14 (7th Cir. 1997) (holding
that summary judgment for defendant drug manufac-
turers and wholesalers was inappropriate where drug
retailer plaintiffs’ theory that defendants conspired to fix
prices was plausible and supported by some evidence,
although defendants offered innocent interpretations for
the evidence), cert. denied, 522 U.S. 1153 (1998).

In Petruzzi’s, the Third Circuit compared the differ-
ence in the plausibility of the claims in that case, which
involved market allocation and bid rigging, with the
predatory pricing claim in Matsushita. The claims in
Petruzzi’s made “perfect economic sense” and warranted
“more liberal inferences from the evidence.” Petruzzi’s,
998 F.2d at 1232. The Third Circuit explicitly followed
Matsushita, concluding:

[T]wo important circumstances underlying the
Court’s decision in Matsushita were (1) that the
plaintiffs’ theory of conspiracy was implausible
and (2) that permitting an inference of antitrust
conspiracy in the circumstances ‘would have the
effect of deterring significant procompetitive
conduct.’ . . . Thus, the Court stated that the
acceptable inferences which can be drawn from

circumstantial evidence vary with the plau-
sibility of the plaintiffs’ theory and the dangers
associated with such inferences.

Petruzzi’s, 998 F.2d at 1232 (internal citation omitted)
(emphasis added in original).

Although not uniformly recognized by the circuits,
Matsushita clearly dictates that the range of permissible
inferences that can be drawn from circumstantial evi-
dence in antitrust conspiracy cases must differ according
to the economic plausibility of the plaintiff’s allegations.
The greater the economic implausibility and the more
likely that procompetitive conduct will be inhibited if
liberal inferences of illegal activity are drawn, the stricter
the scrutiny that must be given to the plaintiff’s evidence.
The failure of the Eighth and Ninth Circuits to conform to
this precedent will result in the unwarranted increase of
summary judgments, and rather than protecting procom-
petitive behavior, illegal anticompetitive behavior will go
unpunished. See Eastman Kodak Co. v. Image Tech. Servs.,
504 U.S. 451, 479 (1992). To ensure a level playing field for
all litigants regardless of the circuit in which their case is
filed, this Court should resolve the split in the circuits.

Il. THIS ISSUE IS IMPORTANT BECAUSE THE SUM-
MARY JUDGMENT STANDARD SET BY THE
EIGHTH AND NINTH CIRCUITS WILL UNDULY
ELIMINATE VALID ANTITRUST CONSPIRACY
CASES.

The determination of the proper summary judgment
standard in conspiracy cases based on circumstantial evi-
dence of conspiracy is extremely important. The very
nature of a conspiracy is to be clandestine. Thus, law

enforcers or injured parties usually must rely on circum-
stantial evidence —- and the reasonable inferences that can
be drawn from such evidence -— to establish the existence

of a conspiracy. If an antitrust plaintiff cannot rely on
circumstantial evidence of the alleged conspiracy (and
concomitant reasonable inferences) to carry the plaintiff
beyond the summary judgment stage in every case where
a defendant can articulate a possible non-conspiratorial
explanation for its conduct, such conspiracies will rarely
be successfully challenged or prosecuted. Obviously, any
defendant aware of the antitrust laws will try to disguise
activity that violates these laws as legal conduct to the
greatest extent possible. Consequently, a rule that sub-
stantially eliminates the utility of circumstantial evidence
would significantly hamper enforcement of Section 1 and
its state law analogs.

The summary judgment stage of an antitrust trial is
already a critical hurdle for substantial numbers of plain-
tiffs, particularly in federal court.? Expanding this stan-
dard unduly to foreclose the progress of difficult yet
meritorious cases simply because such cases are based on
circumstantial evidence will chill the public and private

9 See Thomas Greene et al., State Antitrust Law and
Enforcement, PractisinG Law Institute, 1117 PLI/Corp. 957, 980
(May-June 1999) (noting that “[t]he importance of summary
judgment in federal antitrust litigation cannot be minimized”);
and Editors, Judges Versus Juries in Antitrust: Rush to Summary
Judgment, 20 Antitrust L. & Econ. Rev. 1988 No. 2, at 1, 3 (noting
that a preliminary analysis indicated that between one-half to
two-thirds of the 142 antitrust cases decided in 1987 were won
by defendants at the summary judgment stage in federal court)
(cited in id.).

10

enforcement of the antitrust laws. Summary judgment is
an appropriate tool for culling out unsupported cases |
before they reach a factfinder. Yet, the summary judgment \!
standard employed by the Eighth and Ninth Circuits for

antitrust conspiracy cases raises the bar too high and is

untenable, given the importance of circumstantial evi-

dence in antitrust conspiracy cases.

Finally, the existence of a contract, combination or
conspiracy is a threshold requirement for price-fixing and
other violations of Section 1 and its state law analogs.
Obviously then, a legal standard that integrally affects
the ability of law enforcers and plaintiffs to establish the
existence of a conspiracy is of fundamental importance.

Resolution of the current circuit conflicts strongly
warrants grant of certiorari in this case. Specifically, the
range of circumstantial evidence, the detailed analysis by
the en banc court below, including the dissent, provides
this Court with an opportunity to write dispositively on
the treatment of various forms of classic circumstantial
evidence of conspiracy and how the concomitant infer-
ences should be drawn and weighed.

Ill. THE DECISION OF THE EIGHTH CIRCUIT CON-
FLICTS WITH SUPREME COURT PRECEDENT.

Matsushita imposed a heightened evidentiary stan-
dard when dealing with economically implausible allega-
tions. Although the Eighth Circuit professed to follow
Matsushita, it failed to address the economic plausibility
of the plaintiff’s allegations before, as the Eighth Circuit
put it, applying Matsushita “broadly” and summarily dis-
missing plaintiffs’ claims. Pet. App. A-7.

Te a en OT ee nen |

11

This Court reiterated the importance of ascertaining
the economic plausibility of an alleged antitrust claim in
evaluating the supporting evidence in the case of Eastman
Kodak Co. v. Image Tech. Servs., 504 U.S. 451 (1992). In
response to Kodak’s contention that it was entitled to a
legal presumption of lack of market power under the
reasoning in Matsushita, this Court stated:

Plaintiffs in Matsushita attempted to prove the
antitrust conspiracy ‘through evidence of
rebates and other price-cutting activities.’
Because cutting prices to increase business is
‘the very essence of competition,’ the Court was
concerned that mistaken inferences would be
‘especially costly’ and would ‘chill the very con-
duct the antitrust laws are designed to pro-
tect.’ .. . But the facts in this case are just the
opposite. The alleged conduct — higher service
prices and market foreclosure — is facially anti-
competitive and exactly the harm that antitrust
laws aim to prevent. In this situation, Matsushita
does not create any presumption in favor of
summary judgment for the defendant.

Kodak, 504 U.S. at 478 (citations omitted).

The horizontal price-fixing claims alleged by Peti-
tioners in the case below are also “facially anticompeti-
tive” and “exactly the harm that antitrust laws aim to
prevent.” Id. Yet, the Eighth Circuit neither addressed the
differences in the factual allegations present in the case
below and those in Matsushita, nor recognized the lessen-
ing of the evidentiary standards applicable to the evi-
dence in the case below. Although such reasoning may
result from the Eighth Circuit’s concern over deterring
procompetitive behavior, in actuality it may serve to raise

12

the evidentiary bar high enough to allow antitrust viola-
tors to slide summarily under it. This Court obviously
did not intend the reasoning in Matsushita to be taken to
such lengths.

In Kodak, the Court observed, “when we weigh the
risk of deterring procompetitive behavior by proceeding
to trial against the risk that illegal behavior will go
unpunished, the balance tips against summary judg-
ment.” Id. at 479. By failing to take into account the
economic plausibility of the claims alleged in the case
below, the Eighth Circuit unfairly tipped the scale back.

Finally, the Eighth Circuit’s piecemeal method of
analysis also conflicts with this Court’s prior precedent.
In Continental Ore Co. v. Union Carbide & Carbon Corp., 370
U.S. 690 (1962), an antitrust case involving alleged viola-
tions of Section 1 of the Sherman Act, this Court stressed
the necessity for evaluating the plaintiff's evidence of
conspiracy as a whole, stating:

In cases such as this, plaintiffs should be given
the full benefit of their proof without tightly
compartmentalizing the various factual compo-
nents and wiping the slate clean after scrutiny
of each. . . . [T]he character and effect of a
conspiracy are not to be judged by dismember-
ing it and viewing its separate parts, but only by
looking at it as a whole.

Id. at 699 (internal quotation marks and citation omitted).

Indeed, viewing the evidence as a whole is partic-
ularly important in cases involving allegations of conspir-
acy.

'

13

Seemingly innocent or ambiguous behavior can
give rise to a reasonable inference of conspiracy
in light of the background against which the
behavior takes place. Evidence can take on
added meaning when viewed in context with all
the circumstances surrounding a dispute.

Apex Oil Co. v. DiMauro, 822 F.2d 246, 255 (2d Cir. 1987).

In the case below, although the Eighth Circuit pro-
fessed to consider the proof as a whole, it actually evalu-
ated each portion of the evidence individually and
determined that each piece standing alone did not
“exclude the possibility of independent action by the
producers” or did not “rebut the producers’ independent
business justification for their actions.” Pet. App. A-9 -
A-16. This piecemeal approach is contrary to this Court’s
clear precedent.

For these reasons, the Amici States urge the Court to
grant certiorari. This Court should clarify that the appro-
priate analysis is exemplified by the Third Circuit's
approach in Petruzzi’s, 998 F.2d at 1231-33, in which the
range of acceptable inferences varies according to the
plausibility of a plaintiff’s theory and the dangers to
procompetitive conduct associated with such inferences.
Thus, the less plausible the theory or the greater the
dangers, the more unambiguous such evidence must be.
This approach represents a synthesis of the Matsushita
and Kodak decisions. Further, it reconciles the conflicting
demands of Fev. R. Civ. P. 56 standards and the policy
interests of courts and defendants in rooting out implau-
sible antitrust claims early in the judicial process. It also
provides a reasonable standard which will allow law
enforcers to effectively pursue civil law enforcement

14

actions against harmful price-fixing conspiracies under
the Sherman Act and state antitrust laws.

+

CONCLUSION

For the foregoing reasons, the Petition for Writ of
Certiorari sought by Hahnaman Albrecht, Inc., et al.

should be granted.

Respectfully submitted,

Mark Pryor
Attorney General
TeresA BROWN
Counsel of Record
Senior Assistant Attorney
General
323 Center St., Ste. 200
Little Rock, AR 72201
(501) 682-3561

Mike HatcH

Attorney General

Juure Ratston Aoki!
Assistant Attorney General
445 Minnesota St., #1200
St. Paul, MN 55101-2130

— (651) 296-2622

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1059%3A2. Public record. Not legal advice.