a decision to bring suit thus amounts to a
determination by the executive branch that the challenged conduct is
more harmful to the united states than is any potential injury to our
foreign relationships that will follow from the antitrust action. |
|
/23/ because separation of powers concerns infuse the compulsion
defense, the conclusion that the defense is inapplicable in suits by
the united states can be regarded as merely "an application of the
classical common-law maxim that t)he reason of the law ceasing, the
law itself also ceases. for this
reason, the courts in related contexts have found deference to the
executive branch appropriate. application of the principles discussed above to the facts of
this case demonstrates the court of appeals' error. respondents
identified the check price agreements and the five-company rule as
integral parts of petitioners' alleged conspiracy. |
| petitioners
responded that those agreements had been compelled by the government
of japan, and therefore could not serve as a basis for the imposition
of antitrust liability. that document
affirmed that both the check price agreements and certain regulations
of the japan machinery exporters association (which included the
five-company rule) "have come into existence pursuant to the direction
of miti" (pet. |
| after a detailed discussion of miti's powers
and of its involvement in the creation and implementation of the
agreements and regulations at issue, the statement then added (id.
this detailed miti statement clearly establishes that the japanese
government both compelled petitioners to agree on minimum export
prices for televisions and supervised implementation of those check
price agreements. the statement therefore should have precluded
respondents from relying on the agreements as a basis for the alleged
antitrust violation. in rejecting petitioners' defense, however, the
court of appeals never referred explicitly to the miti statement and
largely disregarded its content. |
instead, the court asserted that
"(i)t is possible to conclude that the (japanese) government merely
provided an umbrella under which (petitioners) gained an exemption
from japanese antitrust law, and fixed their own export prices" (pet.
this analysis misstates both the nature of the sovereign compulsion
defense and the substance of the miti statement. /25/ if the court
meant to suggest that the check prices charged by petitioners were not
in fact compelled, its holding unjustifiably disregarded a clear and
dispositive statement to the contrary by the japanese government. |
| nor
is there merit to the court's suggestion that it was free to ignore
the compelled nature of the check price agreements because petitioners
allegedly used those agreements as a cloak for their efforts to fix
prices at lower levels, in violation of both american and japanese
law. |
| while it is true that sovereign compulsion does not shield
conduct violative of foreign as well as american law, here the court
of appeals treated the compelled check price agreements themselves as
evidence supporting "an inference of collective predatory intention"
(pet.
that defense, of course, means only that compelled conduct may not
serve as a predicate for antitrust liability. even in cases involving
such activity, plaintiffs may sustain a claim by adducing sufficient
independent evidence of anticompetitive activities. the insufficiency of
respondents' evidence is exacerbated by the removal of the check price
agreements as a basis for the imposition of treble damages liability
on petitioners.
however, the case has focused almost entirely on television sets. |
|
/2/ during discovery the parties produced hundreds of thousands of
documents and took hundreds of depositions, although respondents took
no substantive deposition of any japanese businessman alleged to have
been involved in the conspiracy (see pet. like the district court, the division found "no
evidence of concerted predatory conduct intended to destroy and
supplant the u. color tv industry, either at an earlier period of
time or at the present time.
/6/ the court of appeals affirmed the grant of summary judgment in
favor of defendants motorola and sears because there was no evidence
that either company was aware of the resale price maintenance
conspiracy in japan, the five-company rule, or the alleged concerted
action by the other defendants to evade the check price agreements
imposed by miti (pet. the court also affirmed
summary judgment in favor of defendant sony on grounds that sony
never gave rebates, never sold at dumping prices, and occupied the
high end of the price spectrum (id. |
|
/7/ none of questions presented in petition explicitly
addressed the antidumping charges. petitioners nevertheless state
that they challenge the antidumping decision insofar as rests on
the same conspiracy evidence as antitrust charges. the
united states takes no position on correctness of court of
appeals' antidumping decision. in in
which this court has approved the drawing of of
conspiracy from parallel behavior, that was inconsistent with
the hypothesis that defendant made an business
decision to as did. although the court of did not
mention cities service, it cited several third circuit decisions that
applied the cities service principle.. .. |
| michigan state senators |