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Alakayak v. British Columbia Packers (5/31/2002) sp-5575
Alakayak v. British Columbia Packers (5/31/2002) sp-5575
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LOUIE ALAKAYAK; WASSILLIE )
ANDREWS; PETER CHERNISHOFF; ) Supreme Court Nos. S-9259/9359
AGNES HANSEN; JERRY L. )
HATTON; and CHRISTINE MONROE, ) Superior Court No.
on behalf of themselves and ) 3AN-95-4676 CI
all others similarly )
situated; CARL W. EVON and ) O P I N I O N
DAVID D. TARABOCHIA, )
) [No. 5575 - May 31, 2002]
Appellants and )
Cross-Appellees, )
)
v. )
)
BRITISH COLUMBIA PACKERS, )
LIMITED; ICICLE SEAFOODS, )
INC.; MARUBENI CORPORATION; )
MARUBENI AMERICA CORPORATION; )
NELBRO PACKING COMPANY; )
NICHIREI CORPORATION; NICHIRO )
CORPORATION; NIPPON SUISAN )
KAISHA, LTD.; NORTH PACIFIC )
PROCESSORS, INC.; OCEAN )
BEAUTY SEAFOODS, INC.; OKAYA )
& COMPANY, LTD.; OKAYA (USA), )
INC.; OKAYA (CANADA) COMPANY, )
LTD.; PETER PAN SEAFOODS, )
INC.; TRIDENT SEAFOODS )
CORPORATION; UNISEA, INC.; )
WARDS COVE PACKING COMPANY; )
)
Appellees and )
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski, Judge.
Appearances: Phillip Paul Weidner, Phillip
Paul Weidner & Associates, Inc., Anchorage,
Bruce F. Stanford, Law Offices of Bruce F.
Stanford, Anchorage, Stephen D. Susman and
Parker C. Folse III, Susman Godfrey, L.L.P.,
Seattle, Washington, and Frederick P. Furth
and Bruce J. Wecker, The Furth Firm, San
Francisco, California, for Appellants and
Cross-Appellees. Douglas J. Serdahely,
Patton Boggs, L.L.P., Anchorage, Liaison
Counsel for Certain of Processor Appellees
and Cross-Appellants British Columbia
Packers, Limited, Nelbro Packing Company,
Icicle Seafoods, Inc., North Pacific
Processors, Inc., Unisea, Inc., and Wards
Cove Packing Company. James N. Reeves,
Dorsey & Whitney, L.L.P., Anchorage, and
Richard M. Clinton and Joseph Klein, Dorsey &
Whitney, L.L.P., Seattle, Washington, for
Appellees and Cross-Appellants Nichirei
Corporation and Unisea, Inc., and also on
behalf of all importer Appellees and Cross-
Appellants Marubeni Corporation, Marubeni
America Corporation, Nichirei Corporation,
Nichiro Corporation, Nippon Suisan Kaisha,
Ltd., Okaya & Company, Ltd., Okaya (USA),
Inc., and Okaya (Canada) Company, Ltd.
William M. Wuestenfeld and Michael D. Corey,
Sandberg, Wuestenfeld & Corey, Anchorage,
Dexter A. Washburn, Law Offices of Dexter A.
Washburn, Seattle, Washington, and Geoffrey
P. Knudsen, Law Offices of Geoffrey P.
Knudsen, Seattle, Washington, for Appellees
and Cross-Appellants British Columbia
Packers, Limited and Nelbro Packing Company.
Robert L. Richmond and Daniel T. Quinn,
Richmond & Quinn, Anchorage, and James L.
Magee and David C. Lundsgaard, Graham & Dunn,
Seattle, Washington, for Appellee and Cross-
Appellant Icicle Seafoods, Inc. James N.
Leik, Perkins Coie, L.L.P., Anchorage, and
David J. Burman and Brent Snyder, Perkins
Coie, L.L.P., Seattle, Washington, for
Appellees and Cross-Appellants Marubeni
Corporation, Marubeni America Corporation,
and North Pacific Processors, Inc. David B.
Ruskin, Anchorage, and Michael E. Kipling,
Phillip H. Ginsberg, and Carl J. Marquardt,
Stokes Lawrence, P.S., Seattle, Washington,
for Appellees and Cross-Appellants Nichiro
Corporation and Peter Pan Seafoods, Inc.
Clay A. Young, Delaney, Wiles, Hayes, Gerety
& Ellis, P.C., Anchorage, and Albert R.
Malanca, Thomas J. Greenan, and Kenneth
Kieffer, Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, Tacoma, Washington, for
Appellee and Cross-Appellant Nippon Suisan
Kaisha, Ltd. Kenneth P. Eggers, Groh Eggers,
L.L.C., Anchorage, and Robert J. Adolph,
Adolph & Gamache, P.S., Seattle, Washington,
for Appellee and Cross Appellant Ocean Beauty
Seafoods, Inc. Mark E. Ashburn, Ashburn &
Mason, Anchorage, and Richard E. Donovan and
Nicholas J. Panarella, Kelley, Drye & Warren,
L.L.P., New York, New York, for Appellees and
Cross-Appellants Okaya & Co., Ltd., Okaya
(USA), Inc., and Okaya (Canada) Co., Ltd.
Jeffrey M. Feldman, Susan Orlansky, and Ruth
Botstein, Feldman & Orlansky, Anchorage, and
Ralph Palumbo and Lynn M. Engel, Summit Law
Group, Seattle, Washington, for Appellee and
Cross-Appellant Trident Seafoods, Inc. Bruce
E. Falconer, Hicks, Boyd, Chandler &
Falconer, Anchorage, and Douglas M. Fryer and
Jeffrey L. Jernegan, Mikkelborg, Broz, Wells
& Fryer, Seattle, Washington, for Appellee
and Cross-Appellant Wards Cove Packing
Company. Richard J. Todd, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Amici Curiae
States of Alaska, Hawaii, Minnesota, Nevada,
New Mexico, and West Virginia.
Before: Fabe, Chief Justice, Matthews, and
Bryner, Justices. [Eastaugh and Carpeneti,
Justices, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
A class of commercial sockeye salmon fishers who fished
in Bristol Bay between 1989 and 1995 brought an antitrust action
under the Alaska Antitrust Act against salmon processors and
importers who allegedly conspired to depress the prices paid to
fishers for raw salmon. After the class settled with some
defendants, the superior court granted summary judgment as to all
other defendants, holding that the plaintiffs had failed to
present evidence sufficient to raise a genuine issue of fact as
to whether a price-fixing conspiracy existed. After summary
judgment was entered, the prevailing defendants requested an
award of attorney's fees and costs under Alaska Civil Rules 79
and 82; however, the superior court denied this request. The
plaintiff class now appeals the grant of summary judgment. The
defendants cross-appeal the denial of attorney's fees, as well as
the superior court's ruling construing the statute of limitations
for antitrust actions, AS 45.50.588, to allow the plaintiffs to
recover damages sustained during the course of the entire alleged
conspiracy.
II. FACTS AND PROCEEDINGS
A. Characteristics of the Bristol Bay Sockeye Salmon
Industry
The plaintiffs in this case are a class of commercial
fishers who held limited entry permits and fished for sockeye
salmon in the Bristol Bay fishery during the seven seasons
between 1989 and 1995. The thirteen defendants are processors of
salmon, who purchased the raw salmon directly from the fishers,
as well as importers, who purchased processed salmon from the
processors for later importation and distribution in Japan. The
processor defendants are: British Columbia Packers, Ltd./Nelbro
Packing Co. (Nelbro);1 Icicle Seafoods, Inc.; North Pacific
Processors, Inc. (NPPI); Unisea, Inc.; Wards Cove Packing Co.;
Trident Seafoods Corp.; Peter Pan Seafoods, Inc.; and Ocean
Beauty Seafoods, Inc. The importer defendants are: Marubeni
Corp./Marubeni American Corp. (Marubeni); Nippon Suisan Kaisha,
Ltd. (Nissui); Nichirei Corp.; Okaya & Co., Ltd./Okaya (USA),
Inc./Okaya (Canada), Ltd. (Okaya); and Nichiro Corp.
Most fishers in Bristol Bay enter into unwritten
agreements with processors to be part of a processor's "fleet."
The processors commonly guarantee that they will purchase some or
all of their fleet's harvested salmon and provide important
services to their fleet, including fuel and provisioning. Many
fishers switch from one processor's fleet to another between
seasons.
The processors buy the raw salmon from the fishers at a
single, homogeneous price per pound that does not change
depending on the size, sex, or quality of the salmon harvested.
The price paid per pound by the processors to the fishers varied
between processors, but the prices generally had three
components: (i) an initial in-season2 price, with or without
adjustments during the season, (ii) a post-season "adjustment,"
and (iii) a "loyalty bonus."3 The defendant processors are all
within the top ten largest processors operating in Bristol Bay,
who collectively bought between 70.7% and 77.2% of the total
salmon output between 1989 and 1995. The defendant importers
together purchased between 21.7% and 36.4% of the Bristol Bay
salmon between 1989 and 1995.
The procedure for setting the prices paid for raw
salmon varied from season to season and from processor to
processor. Some processors announced an in-season price before
the season opened, while others required their fleets to fish on
an "open ticket," with only a nominal price or even no announced
in-season price at the start of the season. Once announced, the
in-season price was sometimes adjusted during the season. After
the season ended, the processors would sometimes issue a post-
season "adjustment" to the in-season price, which would replace
or modify the prices already set for the season. In addition,
some processors also issued to some or all of their fishers a
"production" bonus, based on a fisher's number or volume of
deliveries, and a "loyalty" bonus, based on factors determined by
the processor. During the season, the in-season prices paid by
different processors were a topic of frequent discussion among
fishers, who found out about the prices through word of mouth,
from local media, from processor postings on tenders receiving
fish, and on company bulletin boards.
After the raw salmon was purchased and processed by the
processors, it was in turn resold to importers. All of the
importer defendants in this appeal purchased salmon for export to
Japan. These Japanese importers maintain access to the Bristol
Bay salmon through contracts with processors and through direct
ownership -- three of the importer defendants own three of the
processor defendants.4
B. The Alleged Conspiracy
From 1984 to 1988 total prices paid by the defendant
processors for raw salmon in Bristol Bay climbed dramatically
until they reached over $2.00 per pound. In the 1989 season
these prices fell to about an average of $1.33 per pound; between
1989 and 1995 the average never rose above this level, falling to
about $0.63 per pound in 1995.5
The defendants presented evidence supporting an
innocent explanation for the decline. An expert witness for the
defendants maintains that the decline was caused by a worldwide
salmon glut that began in 1988. And, a U.S. General Accounting
Office report gave three reasons for the decline in prices: the
large size of the Bristol Bay catch, a glut in Japan, and the
importance of farmed salmon in the Japanese market.
However, the plaintiffs claim that this decline in
prices paid to fishers is the result of a price-fixing conspiracy
between all or many of the large processors in collusion with
importers. The plaintiffs contend that there is both direct and
circumstantial evidence of this conspiracy.
C. The Elements of the Alleged Conspiracy
The plaintiffs make three general claims: (1) that the
processors agreed among themselves to fix current and future
prices for raw salmon; (2) that the major processors and
importers engaged in strong-arm tactics to force smaller
processors to accept lower prices; and (3) that importers
attempted to manage, organize, and coordinate processor efforts
to lower prices. The evidence marshaled to support these
theories is briefly summarized here.6
1. Agreements between processors to fix current and
future prices
The plaintiffs claim that evidence in the record shows
that the defendant processors agreed to fix current and future
prices at various times between 1989 and 1995.
a. Torres statement concerning 1991 actions
In a deposition, NPPI employee Robert Torres was asked
about the processors' offer of a $0.70 in-season price on or
about July 3, 1991. Torres stated that on or about July 3,
"[b]asically everybody" offered that price, and added, "[w]ell,
they just agreed that they'll pay 70 cents."
b. "Price verification" phone calls
The processors engaged in "price verification" phone
calls to verify each other's posted in-season prices. Processor
employees and officers testified that in these phone calls they
called each other simply to confirm rumors of the prices that
other processors were offering as in-season prices.
A Nelbro representative testified that these calls were
"fairly common." These calls were generally limited to a request
to verify a posted price and either a yes or no answer or a
refusal to respond. However, some of the written notes made by
participants in these conversations do indicate that other topics
-- such as the general characteristics of the run or the season,
and perhaps in-season processor prices generally -- were
sometimes discussed.7 Also, a former employee of a nonparty
processor claimed that price verification discussions "would
usually lead into general discussions about the grounds prices
being paid by all processors of Bristol Bay sockeye." This was
generally confirmed by another nonparty processor who described
his price verification conversations with nonparties as well as
with Trident and Ocean Beauty.8 Also, another nonparty processor
claimed that during a price verification with Nelbro, the Nelbro
representative mentioned that "he had confirmed with Trident that
[Trident was] paying $1.00."
c. Actions during the 1991 strike
The plaintiffs also claim that the processors engaged
in certain collusive price-fixing actions during the 1991 season.
During this season there was a "strike" after several major
processors attempted to force the fishers to accept open tickets
and the fishers refused to fish.9
On June 24, 1991, apparently after the strike was
underway, handwritten notes by a Wards Cove employee indicate
that Wards Cove and Nelbro representatives talked about making a
"statement" about the strike; however, the record does not reveal
the content, subject, or outcome of that telephone call.
On June 29 a Nelbro representative met with his fishers
and asked them to fish under an open ticket, explaining that the
importers who were going to buy fish from the processors were
only willing to do so during the 1991 season at very low prices.
The representative testified that he told his fishers: "The
Japanese have indicated that our market with them is going to
have to drop drastically." The representative indicated that he
was in fact referring to the importer buyers. Other processors
apparently also attempted to convince their fishers to fish under
open tickets or at low in-season prices.
In the face of continued refusals to fish, the
processors offered higher in-season prices. On June 29 Wards
Cove and Peter Pan offered an in-season price of $0.50, but these
offers were not accepted, although some Peter Pan fishers
apparently did set out to fish. The next day, Ocean Beauty
offered an in-season price of $0.65 to its fishers, and this
offer was accepted.
On July 1 Trident and Peter Pan matched Ocean Beauty's
price, offering an in-season price of $0.65; however, the offers
were not accepted by the fishers. Wards Cove made the same offer
on July 2, and their fishers indicated that they would discuss
the offer in a meeting.
The in-season price eventually settled at $0.70 for the
defendant processors, ending the strike.10 Nelbro offered $0.70
on July 2, which was also initially refused, but was accepted the
next day. Wards Cove also offered $0.70 on July 3, based on
inaccurate information that Peter Pan posted $0.70. The fishers
accepted the Wards Cove offer on or about July 3.
NPPI also settled with its fishers at $0.70 after
withdrawing a higher offer. NPPI offered its fishers $0.75 on
July 3 through a fisher intermediary. However, this deal was
conditioned on a promise that the offer would not be released to
the media. Before Nelbro's fishers had accepted Nelbro's $0.70
offer, Nelbro learned about NPPI's $0.75 offer, as well as a
rumored $0.75 offer by another nonparty processor. However, the
Nelbro representative called NPPI and the other processor to
confirm the price, and both processors denied it. NPPI's $0.75
offer was leaked to the media, and even though the fishers tried
to accept the offer, NPPI rescinded it later on July 3. The NPPI
fishers then accepted a $0.70 offer from NPPI, apparently also on
July 3.
d. Discussion of future in-season prices
The plaintiffs also claim that there is evidence that
the processors discussed future prices for in-season prices that
had not yet been set.
First, the record contains evidence of some discussion
among the importer defendants that may concern a drive to lower
in-season prices for the 1989 season. At the start of the 1989
season, four of the defendant processors (Nelbro, NPPI, Peter
Pan, and Trident) posted prices of $1.25, while the three others
(Icicle, Ocean Beauty, and Wards Cove) had open tickets. On June
10 Icicle posted a price of $1.00. Later, the processors who
posted $1.25 prices all adjusted their in-season prices downward,
non-retroactively, to $1.00 on June 24 (Peter Pan and Trident)
and 25 (Nelbro and NPPI). On June 25 Wards Cove matched the
$1.00 price by announcing its first in-season price of $1.00,
while on June 26 Ocean Beauty joined the downward trend by
adjusting to $1.10.
There is evidence that suggests that there was some
discussion of the 1989 prices in advance of these events.
Employees of Nelbro predicted, based on prices established in
other fisheries with earlier seasons, that the price in Bristol
Bay would be $1.25. Some importer employees reported a "desire"
or "intention" on the part of the processors to bring prices down
from the initial $1.25 level; one Nissui employee stated in a
memorandum written on June 20: "There is a desire to start under
$1.00. There is also an intention to bring the current price of
$1.25 down later after seeing how the fishing is going." Another
Nissui document stated that the major processors "show signs that
their [in-season] prices will start at $1.00/lb." In addition,
on May 18 and June 22 there may have been some conversations
between Nelbro, Peter Pan, and Marubeni employees about
conditions for the run and possible pricing ranges.
For the 1990 season, the defendant processors all
posted in-season prices of $1.00, with the exception of Ocean
Beauty, which posted a price of $1.30. Three of the processors
(Nelbro, Trident, and Wards Cove) all posted on the same day,
July 1, while Peter Pan posted the next day.
There may have been discussions of this $1.00 price in
advance of July 1. The record contains telexes from the nonparty
importer Mitsui which document individual meetings that occurred
on June 26, 1990, between Mitsui and Wards Cove, and Icicle,
where in-season prices may have been discussed. A document that
may or may not refer to that meeting notes that "Bristol Ground
Price dropping down to 1.00" from one or more of the processors.11
Also, handwritten notes indicate that a Nelbro representative
discussed possible in-season prices with representatives from
Marubeni (on May 23) and a nonparty importer (on June 6). One or
both participants may have predicted prices of $0.75-$1.00 or
$0.80-$1.00.12 After talking to another Nelbro employee, the
Nelbro representative wrote, on June 29, that "a major advance at
1.00 is most likely." On July 1, the day that the in-season
prices were set by Nelbro, Trident, and Wards Cove, the $1.00
figure for Nelbro and Trident was apparently known a few hours or
minutes in advance by representatives of Nelbro and Unisea.13
Also, further discussions about this $1.00 price
continued after July 1. Nelbro employees discussing the matter
with each other noted that the $1.00 price was holding: "F.P.
still posted at 1.00 . . . P.Pan." An internal importer telex
from Mitsui stated that "fishermen's price for major packers are
fixed at USD1.00 until further notice."
There is also evidence in the record concerning
discussions of prices in advance of the 1992 season. All of the
processors apparently started the season with open tickets,14
although there is conflicting evidence as to Peter Pan's actions.
Between June 15 and July 7 processors offered in-season prices of
$1.00-$1.05. Some written notes of a June 17, 1992 conversation
between Nelbro and Peter Pan employees contain a statement that
may concern discussion of the 1992 in-season prices: "Bay--
advance 1.00; close 22nd."
e. Joint agreement to keep prices low in other
fisheries
The record also contains evidence of discussions
between processors and importers of prices in fisheries other
than Bristol Bay.
The False Pass salmon run was considered by the
processors to be a benchmark for Bristol Bay because the salmon
run in False Pass occurs earlier than the Bristol Bay run and
because many fish caught there were fish actually en route to the
Bristol Bay salmon run. One nonparty importer's telex -- from an
unknown year -- includes the statement:
[T]here is a rumor that two major companies,
Peter Pan and Trident, are engaged in . . .
laying the groundwork so as to suppress the
fish price to a maximum of $1.00-0.70 in
False Pass . . . . [A] high fish price could
very well be considered a suicidal act for
the processors themselves. Therefore, we are
speculating here that there won't be anything
odd about major processors actually taking
action to keep the fish price as low as
possible in order to prevent them from going
down all together.
In a memorandum between representatives of Peter Pan
and Nichiro, Peter Pan's corporate parent, the Peter Pan
representative complained about the actions of an importer and
processor in False Pass. The memo states: "It has come to my
attention . . . that [Shin Nishoku, a nonparty importer] is going
to show [Peter Pan and Trident] how to buy Red Salmon in False
Pass. One company that we know of who will be selling to him is
New West Fisheries. . . . [C]ould you please be kind enough to
check this out at your end because as you know high prices again
in False Pass will not help False Pass or Bristol Bay."
In 1992 in False Pass, some processors were apparently
concerned over Mitsui's plan to have a "cost plus" contract with
a nonparty processor, Yard Arm Knot (YAK). One nonparty
processor stated the concern to Mitsui that this contract might
raise prices. However, Mitsui's contract contained "price
conditions" that contained a ceiling linked to pricing by Peter
Pan and Trident; otherwise the contract was in fact a "cost plus"
contract.15 Other processors may also have complained.
There is also evidence of some discussion of prices in
the Kodiak fishery in 1991. As reported by a Mitsui telex, a
Wards Cove representative complained to Mitsui of high prices
paid by Ocean Beauty in Kodiak ($0.92-$0.95): "[Ocean Beauty]
started paying this price and W.Cove followed. [Wards Cove] is
wondering who are buyers of [Ocean Beauty's] sockeye."16
Nicherei, a defendant importer who bought from Ocean Beauty,
apparently met with Ocean Beauty in an attempt to lower the
price. Wards Cove later announced its lowered price in Kodiak as
$0.80. This $0.80 may have been common in Kodiak, since a Mitsui
document noted that "we heard that [Kodiak] fish price falling
down to . . . 0.80." A Mitsui employee claimed that this $0.80
price required a lowered $0.50 price in Bristol Bay.
2. Strong-arm tactics employed against minor
processors
The second category of evidence concerns alleged
efforts by importers and processors to force smaller processors
to offer lower prices to their fishers.
a. Pressure applied on nonparty processor
Woodbine
Woodbine Alaska Fish Co. (Woodbine), which was at one
time but is no longer a defendant, is a small processor that
offered higher prices to aggressively attract fishers from the
other processors. For the 1990 and 1991 seasons, Mitsui was a
major buyer of Woodbine's processed salmon. In 1990 Mitsui was
the principal buyer; in 1991 it bought about fifty percent of
Woodbine's salmon. Woodbine and Mitsui had a "cost plus" contract
for some quantity of salmon processed on Woodbine's floating
processor.
Mitsui and Woodbine representatives had conversations
in 1990 and 1991 in which Mitsui told Woodbine that Woodbine's in-
season prices were too high and that other processors were paying
lower in-season prices.17 Mitsui told Woodbine that other
processors had complained to Mitsui about Woodbine's high prices
-- in particular, Trident and Wards Cove.18 Also, there is
evidence that Icicle and Nelbro representatives were concerned.19
Mitsui also threatened Woodbine with ending their business
relationship because of the high in-season prices.20 The Mitsui
representative claimed that Mitsui might be forced to stop doing
business with Woodbine because other processors had threatened to
stop selling to Mitsui.21
In response to this pressure, Woodbine did lower its in-
season prices during the 1990 and 1991 seasons because of concern
that Mitsui could withdraw funding assistance "or discontinue
purchasing [Woodbine's] products."22 In 1991 and 1992 its prices
-- respectively, $0.70 and $1.00 -- matched those of the
defendant processors.
However, after 1992 Mitsui ceased to be a significant
buyer of Woodbine's salmon. After the 1992 season Mitsui refused
to commit to preseason contracts and bought salmon from Woodbine
in only "relatively minor" spot sales. A Woodbine representative
implied that she believed that Mitsui took these actions because
Mitsui shifted much of its buying to Wards Cove and that Mitsui
responded to pressure applied by Wards Cove.23
b. Pressure applied on nonparty processor
Baypack
Baypack is a small processor that began operations in
Bristol Bay in 1995. Baypack had a contract with Nelbro to
market Baypack's salmon output. However, just before Baypack's
floating processor vessel arrived in Bristol Bay, a Nelbro
representative began to state concerns about Baypack's high in-
season prices. The Nelbro representative claimed that there was
an "uprising" among Nelbro fishers when the fishers found out
that Baypack fishers might get more money than Nelbro fishers.24
The Nelbro representative also stated that Baypack's higher
prices would "damage" Nelbro's "neighbors" -- Ocean Beauty,
Trident, and Unisea -- by "taking away their fishermen." The
Nelbro representative told Baypack that a Trident representative
had said that "he was going to bury [Baypack]." The Nelbro
representative later stated to the Baypack representative: "What
the hell are you doing screwing up the industry by paying $1.10 a
pound in Ugashik?"
Also, a Baypack representative testified that more than
halfway through the season he had "an enraged one-sided
discussion" with a Nelbro representative in which the Nelbro
representative "accused [Baypack] of screwing up the industry by
paying an outrageous cash price." However, despite this
pressure, there is no evidence in the record that Baypack
responded by lowering its prices.
c. Pressure applied on nonparty importer Shin
Nishoku and a nonparty processor
A Peter Pan memorandum indicates that Peter Pan was
concerned about the high prices paid by nonparty importer Shin
Nishoku and a nonparty processor during the 1990 season. The
processor was using a steamer supplied by Nichiro for these
operations. The memorandum indicates that a Peter Pan
representative contacted Nichiro and "expressed in the strongest
possible terms that that relationship is total contrary to the
good of Peter Pan and must be broken off or the result of [the
nonparty processor] paying very high raw fish prices could have
tremendous financial impact on Peter Pan." The Peter Pan
representative testified that Nichiro terminated its services to
the small processor under pressure from Peter Pan; however, the
Peter Pan representative claimed that the services were
terminated because they were "illegal." Later the processor
"went broke."
3. Importer management, organization, and
coordination of processor efforts to lower prices
The third category of evidence concerns the importers'
alleged efforts to manage the allegedly conspiratorial activities
of the processors.
a. The "Okaya Action Plan" for 1991
In December 1990 there were meetings between (1) Wards
Cove and Okaya representatives (December 4), and (2) Nelbro,
Okaya, and Nichirei representatives (December 6) in which the
processors were presented with documents that the plaintiffs
refer to as the "Okaya Action Plan." The document presented to
Wards Cove stated:
When it comes to '91 Frozen Market Overview,
we feel going will get even tougher . . . .
In a nut shell our market could be
"completely a buyer's market" . . . . The
only possible way to overcome such difficulty
and wipe out the "buyer's market" scar[e]
would be the mutual cooperation among the
packers and the importers in the following
points: (a) Fish price reduction. In the
extreme Bristol Bay Sockeye price may have to
be reduced down drastically."
The same language is contained in the document presented to
Nelbro. In the Wards Cove document, Okaya also stated:
Request for '91[:]
We would like to request you to keep ground
price as much as lower level for [coming]
season, and this eventually keeps reasonable
FOB price to sell in the Japanese market
. . . . We are assure[d] that Wards Cove
Packing as a leader of this industry can
establish reasonable FOB prices by enforcing
to control the ground prices.
The Wards Cove representative testified that he remembered
reading these comments at the December meeting. The Wards Cove
representative claimed that he said at that meeting that what
Okaya was asking "just wasn't possible from a practical
standpoint, [because] we have no control over grounds prices in
Bristol Bay"; and that "besides that, it was illegal."25 Also,
the Okaya employee who drafted the "Action Plan" stated that the
phrase "mutual cooperation" did not mean cooperation to engage in
price-fixing:
Q: Is there anything wrong, in your view,
with packers and importers engaging in
mutual cooperation to reduce grounds
prices or beach prices?
A: . . . one thing I can say for sure --
and I must say for sure -- is that I
have no such intention.
And, the Okaya employee testified that the Okaya representatives
told the Wards Cove representatives to "ignore" the whole section
of the "Action Plan" under the heading "Request for '91."
The document presented to Nelbro was slightly
different, but it also contains the first paragraph mentioned
above from the Wards Cove document. The Nelbro document also
suggests that Nelbro should follow pricing set by Wards Cove:
'91 Okaya's Proposal
. . . .
(B) PRICING; . . . (1) Basic Price: FOB
Prices agreed between Wards Cove Packing and
their traditional biggest buyer (Marubeni)
for the same grades/quality Bristol Bay
Sockeye produced and shipped in the same
manner as NELBRO at the same time of the
season.
. . . .
Historically speaking [Wards Cove's] prices
used to be considered as the leading market
price for the Bristol Bay Sockeye . . . . So
we believe [Wards Cove's] prices can be very
useful for our reasonable pricing for the
Japanese buyers every season. . . . [W]e
don't believe [that Trident and Icicle] have
the fair reputation in the Japanese market
for the reasonable pricing in most cases.
b. Mitsui's 1991 "campaign" to lower in-season
prices
There is some evidence that, in advance of the 1991
season, Mitsui representatives contacted some processors to
express the opinion that in-season prices should be about $0.50.
Mitsui apparently had the intention in February 1991 to visit
processors, including at least all of the defendants except
Nelbro and Ocean Beauty, to find out "what ground price they are
expecting." Mitsui representatives actually did visit Icicle,
Wards Cove, Trident, NPPI, Woodbine, and YAK. As for the meeting
with Trident, a February 12, 1991 internal Mitsui telex notes
that during this visit Trident representatives "agreed" with
Mitsui's "opinion" for a $0.50 price. In a visit with nonparty
processor Lafayette, that processor "agree[d] prices should go
down, but how far is question." Mitsui employees may have
expressed Mitsui's opinion that in-season prices should be about
$0.50 to Wards Cove and nonparty processor Woodbine.26 This
opinion was also expressed in an internal document.27
At the same time, other importers also may have been
expressing "opinions" as to what the 1991 in-season price should
be. A Nelbro employee had a conversation with an unknown person
in which that person told him: "Japan will ask for 10-20% price
reduction, then negotiate + compromise [with fishers]." An
internal telex of a nonparty importer stated: "A lot of people
here in Japan think that the fish price should be $.50-.70, and
most people believe that if it isn't at that price, they won't be
able to expand the sales."
c. 1992 meetings organized by importers
In advance of the 1992 season, importers again
organized meetings with processors in which the importers
apparently advocated lower in-season prices. Okaya and Nelbro
representatives met in December 1991 and the Nelbro
representative's written notes stated: "91 we had low fish price.
It would be bad to show strong interest during fishing season 92
affect fish price. [They] wanted answer now: Said no not now."
During the season, an Okaya report dated June 18, 1992 stated
that "[a] beach price of $1.00 is what we desire, but if not, we
want the beach price to be held to a maximum of $1.25. (In the
worst case, it may be up to $1.30.)" The report noted that
"[t]he price does not get established by Nelbro singularly, nor
does it get dictated by the one-sided opinion of YAK/Dragnet.
Please do not forget the fact that the PRICE LEADER of Alaska . .
. is [Nelbro] vs. Marubeni."28
There may have also been meetings between (1) Nichiro
and Icicle, (2) Nichiro and Trident, and (3) Nichiro, Marubeni,
and NPPI sometime in 1992 in which Nichiro representatives
advocated or predicted an in-season price of $1.00.29
Mitsui also apparently attempted to make its opinions
on the 1992 in-season prices known. An internal Mitsui telex
stated "[w]e better give guidance to U.S. packers [on prices] as
Japanese voices," and another telex asked, from one Mitsui
employee to another, "would you pls give us how market people are
thinking about new price level of Alaskan reds in this coming
season so that we can give such feeling to Wards Cove/YAK/others
as initial input." A May 1992 Mitsui report, which was "used
somehow in explaining situations to packers," stated that "we
believe that packers can sell with fishing ground price at
USD1.00/LB." This report was sent to Wards Cove in June. A
Mitsui employee apparently knew as of June 5, 1992 that
"acc[ording] to packers in [Seattle], they can pay USD1.00/LB to
fishermen for Bristol red salmon . . . ."
d. Trade journal editorials
A June 10, 1989 article in a Japanese trade
publication, Nikkan Hokkai Keizai, entitled "Avoid Excessive
Competition," seems to advocate price-fixing by the processors
and importers operating in Bristol Bay. The article states:
"This year, it is about time when the distribution industry as a
whole, including 'catchers,' review the prices of salmon. . . .
Under these circumstances, some are seriously advocating that,
rather than engaging in a useless purchase quantity contest, it
is time to discern what the right prices should be in light of
excessive supply quantities in the market." There is evidence
that importers read articles like this one and passed them on to
processors.
D. Proceedings Below
A group of plaintiffs commenced this action in June
1995, and a plaintiff class was certified on January 2, 1997.
During the discovery period, on September 21, 1998, the
superior court limited discovery so as to exclude the plaintiffs'
claims of "alter ego" with respect to certain defendants because
those claims were not pled in the plaintiffs' fourth amended
complaint. The plaintiffs appeal this ruling.
On April 28, 1999, the superior court held that the
statute of limitations, AS 45.50.588, did not apply to limit
plaintiffs' damages to those suffered for four years before the
filing of the complaint. All of the defendants have joined a
cross-appeal on this issue, opposed by both the plaintiffs and
amici curiae states including Alaska, Hawaii, Minnesota, Nevada,
New Mexico, and West Virginia.
After the plaintiffs settled with some defendants, the
superior court granted summary judgment as to all other processor
and importer defendants. The defendants moved for costs and
attorney's fees, but the superior court denied that motion. The
superior court issued a final judgment on December 1, 1999. The
plaintiffs appeal the grant of summary judgment, while the
defendants cross-appeal the denial of the motion for attorney's
fees and costs.
Some defendants also moved for summary judgment on the
theory that the plaintiffs had presented no evidence of provable
damages.30 This motion was not ruled on by the superior court.
III. STANDARD OF REVIEW
The standard of review for an appeal from summary
judgment is de novo.31 We will affirm a grant of summary judgment
if there are no genuine issues of material fact and if the movant
is entitled to judgment as a matter of law.32 When making this
determination, we draw all reasonable inferences in favor of the
non-movant.33 If in reviewing a summary judgment we must answer
questions of law, we will adopt the rule of law that is most
persuasive in light of precedent, reason, and policy.34 Moreover,
we may affirm a grant of summary judgment on grounds other than
those advanced by the lower court or parties.35 The movant
bears the initial burden of proving through admissible evidence
(1) the absence of genuine fact disputes, and (2) its entitlement
to judgment as a matter of law.36 Once the movant has established
a prima facie case, the non-movant, in order to prevent entry of
summary judgment, is required "to set forth specific facts
showing that [it] could produce admissible evidence reasonably
tending to dispute or contradict the movant's evidence, and thus
demonstrate that a material issue of fact exists."37
In the course of reviewing the grant of summary
judgment, we must review evidentiary decisions made by the
superior court; these decisions are reviewed for abuse of
discretion.38
We must also consider the issue of whether a claim was
properly pled under Alaska Civil Rule 8(a). Because we are "in
virtually the same position as the trial court in its ability to
assess the adequacy of the pleadings," this issue is reviewed de
novo.39
Finally, we must interpret AS 45.50.588, the statute of
limitations for antitrust actions. This is a question of law
that we will review de novo.40
IV. DISCUSSION
A. Summary Judgment Principles in the Antitrust Context
1. Alaska Statute 45.50.562
Alaska Statute 45.50.562 is the basis for the
plaintiffs' claims in this case. It states that "every contract,
combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce is unlawful."
We have noted that claims brought under AS 45.50.562
are analogous to claims brought under 1 of the federal Sherman
Act,41 and that federal cases construing 1 of the Sherman Act
will be used as a guide.42 Antitrust claims under AS 45.50.562
are either "per se" claims or "rule of reason" claims.43 Per se
claims concern alleged behavior that, if proven, is clearly an
illegal restraint on trade; other types of alleged conduct are
subject to the rule of reason standard in which the factfinder
must determine whether the restraint is unreasonable.44 To
establish a prima facie case under AS 45.50.562, the plaintiff
must prove three elements: "(1) an agreement or conspiracy
involving two or more persons or distinct business entities; (2)
by which the persons or entities intended to harm or restrain
competition; and (3) which actually injures competition."45
The plaintiffs' allegations here are per se allegations
because they are allegations of a conspiracy to fix prices.46 As
we have noted, the usual price-fixing situation is one in which
sellers conspire to fix prices; however, purchasers such as the
processors and importers in this appeal, when "acting in concert
to affect prices," may violate AS 45.50.562.47
We have also noted, when reviewing summary judgment in
cases of this kind, that the particular factual circumstances are
critically important: "Sherman Act cases of this kind generally
must be determined on the facts of each case."48 Summary judgment
"should be used sparingly in antitrust litigation," and "[w]hen
an antitrust plaintiff has established a prima facie case, he
should have an opportunity to prove the necessary supporting
facts at trial."49
2. Alaska summary judgment principles
We will affirm summary judgment if there are no genuine
issues of material fact and if the moving party is entitled to
judgment as a matter of law.50 The non-movant "need not establish
that he will ultimately prevail at trial." That is, the non-
movant is not required to submit evidence that tends to show that
the non-movant could prove its case by satisfying the relevant
burden of proof at trial.51
In making this determination, all reasonable inferences
are made in favor of the non-movant.52 Reasonable inferences are
those inferences that a reasonable factfinder could draw from the
plaintiff's evidence.53 However, the plaintiff must present more
than a "scintilla" of evidence to avoid summary judgment; the
plaintiff must present enough evidence to "reasonably tend[] to
dispute or contradict" the evidence presented by the defendant.54
We have indicated that we will not engage in a weighing
of the evidence on summary judgment; there is a "genuine issue"
of material fact as long as the non-movant has presented some
evidence in support of its legal theory. In Moffatt v. Brown, we
rejected a summary judgment standard for defamation used by
federal courts because it incorporated a substantive evidentiary
standard into the summary judgment analysis, "inevitably
implicat[ing] a weighing of the evidence."55 In Meyer v. State,
Department of Revenue, Child Support Enforcement Division ex rel.
N.G.T., we held that a putative father's sworn denial of
paternity was enough to prevent summary judgment, even in the
face of strong scientific evidence showing his paternity, because
"any evidence sufficient to raise a genuine issue of material
fact precludes a summary finding of paternity."56 As we
reaffirmed, we "do[] not weigh the evidence or witness
credibility on summary judgment."57
3. Federal antitrust decisions
We use federal law as a guide when considering claims
brought under AS 45.50.562.58 Federal courts have noted that the
non-movant's evidence should not be "compartmentalized," but
should be considered as a whole, to determine whether it gives
rise to a reasonable inference of antitrust conspiracy.59 The
plaintiff's evidence of a conspiracy may either be direct or
circumstantial. The difference is that "[d]irect evidence in a
Section 1 conspiracy must be evidence that is explicit and
requires no inferences to establish the proposition or conclusion
being asserted."60 That is, "with direct evidence the fact finder
is not required to make inferences to establish facts."61
Therefore, if the plaintiff presents only circumstantial
evidence, the factfinder must make inferences from that evidence
to find an antitrust conspiracy. A plaintiff is not required to
present any direct evidence, but may support his case solely with
circumstantial evidence.62
If the plaintiff relies on circumstantial evidence, the
United States Supreme Court's decision in Matsushita Electric
Industrial Co. v. Zenith Radio Corp.63 becomes relevant. In
Matsushita, the Court considered an alleged Sherman Act 1
conspiracy in which television manufacturers, in order to reap
monopoly profits later, conspired to engage in predatory pricing
in the U.S. market by conspiring to keep prices low to force
others out of the market.64 The Court reviewed a grant of summary
judgment in favor of the defendants. Noting that reasonable
inferences are to be drawn in favor of the non-moving party, the
Court stated that its earlier decision in Monsanto Co. v. Spray-
Rite Service Corp.65 limited "the range of permissible inferences
from ambiguous evidence in a 1 case":
[C]onduct as consistent with permissible
competition as with illegal conspiracy does
not, standing alone, support an inference of
antitrust conspiracy. To survive a motion
for summary judgment or for a directed
verdict, a plaintiff seeking damages for a
violation of 1 must present evidence "that
tends to exclude the possibility" that the
alleged conspirators acted independently.
[The plaintiff], in other words, must show
that the inference of conspiracy is
reasonable in light of the competing
inferences of independent action or collusive
action that could not have harmed [the
plaintiff].[66]
In Matsushita, the Court went on to apply these principles to
affirm summary judgment because the plaintiffs' evidence, viewed
together, did not give rise to a reasonable inference of
conspiracy: The cost-cutting behavior engaged in by the
defendants was plausibly competitive behavior, and the defendants
had no incentives to join in the alleged conspiracy.67 The Court
also noted that the predatory pricing conspiracy alleged by the
plaintiffs was "economically senseless": The defendants
allegedly conspired to "destroy companies larger and better
established than themselves, a goal that remains far distant more
than two decades after the conspiracy's birth."68 The Court
therefore implied that this "economic senselessness" provided
another basis for its ruling that there was no genuine issue of a
conspiracy for trial.69
Federal courts have interpreted Matsushita to require a
two-part test for summary judgment. Under this test, the court
first determines if the plaintiff's evidence is "ambiguous" --
that is, if the evidence is of conduct that is "as consistent
with permissible competition as with illegal conspiracy."70 If
so, the plaintiff only avoids summary judgment if it submits some
evidence that "tend[s] to exclude the possibility that the
defendants acted independently."71
As the plaintiffs point out, the Matsushita test is
only relevant if the plaintiffs have not presented direct
evidence of a conspiracy because the Matsushita analysis is
concerned with the reasonableness of inferences drawn from
circumstantial evidence. As the Third Circuit Court of Appeals
noted, "if a plaintiff provide[s] direct evidence of a
conspiracy, then the strictures of Matsushita d[o] not apply"
because "no inferences are required from direct evidence to
establish a fact and thus a court need not be concerned about the
reasonableness of the inferences to be drawn from such evidence."72
Moreover, when the plaintiffs' theory of conspiracy
does rely entirely on circumstantial evidence, Matsushita
requires that this evidence "be evaluated in its factual context"
to see if the summary judgment record as a whole provides a
specific factual basis that, if accepted as true, would "'tend to
exclude the possibility' that the alleged conspirators acted
independently."73 We do not read Matsushita to "give every judge
hearing a motion for summary judgment in an antitrust case the
job of determining if the evidence makes the inference of
conspiracy more probable than not."74 In this sense, the case is
consistent with our decisions in Meyer75 and Moffatt,76 which
preclude courts from weighing summary judgment evidence. The
concern in Matsushita is not with the weight of competing
evidence but with the existence of a rational basis for drawing
contextually plausible inferences from circumstantial evidence
that in theory could go either way. The case does not permit
summary judgment to be granted if the record as a whole,
realistically viewed, would allow a reasonable juror to draw
rational inferences in favor of each party depending on the
juror's view of disputed factual evidence rather than abstract
economic theory.
Furthermore, when the plaintiff's theory is
specifically based on "conscious parallelism," there is an
established procedure for determining whether the evidence tends
to exclude the possibility of independent action. A "conscious
parallelism" theory is one in which the plaintiff claims that the
defendants engaged in "consciously parallel" conspiratorial
behavior, such as a group of defendant buyers who engaged in
setting parallel prices.77 As many courts have recognized, a
plaintiff may not rely entirely on evidence of consciously
parallel behavior: "[P]arallel conduct alone will not suffice as
evidence of . . . a conspiracy, even if the defendants knew the
other defendant companies were doing likewise."78 If the
plaintiff's theory is based on conscious parallelism, the
plaintiff must present evidence of one or more "plus factors."79
As the defendants acknowledged at oral argument,80 these plus
factors supply the required evidence that tends to exclude the
possibility of independent action, preventing the imposition of
summary judgment for the defendants.81
The required plus factors may include evidence of: (a)
actions contrary to the defendants' economic interest;82 (b)
motive to enter the conspiracy;83 (c) a traditional conspiracy
agreement;84 (d) interdefendant conspiratorial communications;85 or
(e) attempts to control or influence the behavior of other
nondefendant sellers or buyers who could thwart the conspiracy.86
Once the plaintiff has submitted evidence of "plus factors," the
plaintiff will have demonstrated that there is a material issue
of fact, and summary judgment must be denied.
B. Material Issues of Fact Require Reversal of Summary
Judgment.
The defendants filed both individual and collective
motions for summary judgment, and the superior court granted
summary judgment on the two collective motions filed,
respectively, by the importer defendants and the defendants in
their entirety. Because there are material issues of fact as to
whether a conspiracy to fix prices existed between 1989 and 1995,
we reverse these rulings.
The only ruling that is before us is the superior
court's ruling on the defendants' two collective motions for
summary judgment. The superior court granted summary judgment
for the processors because it held that there were no material
issues of fact on the existence of an antitrust conspiracy joined
by the processor defendants. As for the importers, the superior
court similarly held that there were no material issues of fact
as to whether the importers "collectively" joined an antitrust
conspiracy.
Because the plaintiffs' evidence does create an issue
of fact as to the existence of a price-fixing conspiracy
involving some or all of the defendants, we reverse these
rulings. However, our decision is limited to the existence of
the conspiracy alone. We take no position as to whether some
individual defendants may be entitled to summary judgment because
there is no evidence connecting them to the conspiracy.87
The superior court held that the defendants met their
burden of proof for summary judgment by denying their
participation in any price-fixing conspiracy. As we have noted,
the movant for summary judgment bears the initial burden of
"establishing the absence of a genuine issue as to any material
fact."88 The plaintiffs do not contest the superior court's
ruling that the defendants satisfied their initial burden through
their denials.89 Therefore, the burden shifts to the plaintiffs to
show that there is a material issue of fact for trial.
As discussed above, our analysis of summary judgment in
an antitrust price-fixing conspiracy case requires us to inquire
initially whether the plaintiffs presented direct evidence of a
price-fixing conspiracy; if not, we must further determine if the
plaintiffs' circumstantial evidence is supported by evidence
tending to exclude the possibility of independent action.
Because much of the plaintiffs' evidence in this case tends to
exclude the possibility of independent action, we reverse the
grant of summary judgment below.
1. The plaintiffs have not presented direct evidence
of a price-fixing conspiracy.
The plaintiffs argue that four groups of evidence
constitute direct evidence of conspiracy: (a) price
verifications, (b) pressure applied on Woodbine and Baypack, (c)
NPPI's actions during the 1991 strike, and (d) future price
discussions. Each of these will be considered in turn.
a. Price verifications
As already discussed, the evidence of price
verifications, at most, shows that in-season prices were
verified, and that sometimes "general discussions" about pricing
took place, including discussion of adjustments in preceding
years, the quality of an upcoming salmon run, prices in other
fisheries, and speculation about market conditions for the
upcoming season. None of this constitutes direct evidence of
conspiracy because in order to conclude that there was a
conspiracy, the factfinder would need to infer that these
discussions were part of or included agreements to fix prices.90
b. Pressure applied to nonparty processors
Woodbine and Baypack
The superior court discussed the possibility that
evidence concerning the pressure applied to Woodbine and Baypack
might constitute direct evidence of conspiracy. The superior
court held that this evidence is not direct evidence because
several inferences are required to reach a conclusion that there
is a conspiracy from this evidence.
The plaintiffs presented evidence tending to show that
some processor defendants were concerned about Woodbine's high
prices and that the defendants complained to Mitsui about it.
However, the evidence is inconclusive as to whether these
defendants complained individually or collectively, or whether
they reached any agreement concerning Woodbine. As for Baypack,
there is evidence that Nelbro complained to Baypack, and Nelbro
apparently claimed that Baypack would "damage" other processors.
But the plaintiffs have presented no direct evidence that Nelbro
met with any other processors or came to any agreement with other
processors concerning Baypack. No conclusion of conspiracy is
possible without inferences that the processors coordinated their
actions with other processors in the course of making complaints
about Woodbine and Baypack.
c. NPPI's actions during the 1991 strike
As already discussed, during the 1991 strike NPPI
offered its fishers a $0.75 price on the condition that the price
be kept from the media. Nelbro and Peter Pan representatives
somehow learned of the offer and contacted NPPI to confirm the
price. NPPI subsequently rescinded the offer.
The evidence of NPPI's actions is not direct evidence
of conspiracy because in order to reach a conclusion of
conspiracy the factfinder would have to infer that Nelbro and
Peter Pan's price verifications were part of a tacit agreement to
fix or lower prices.
The plaintiffs also claim that a statement by an NPPI
employee concerning the 1991 strike constitutes direct evidence
of conspiracy. In a deposition, NPPI representative Robert
Torres made the following statement concerning the in-season
prices offered to fishers during the 1991 strike:
A: [I]nitially we offered our fishermen 60
cents. [Later,] [w]e offered 65 cents.
And then about July 2nd we offered 70
cents.
Q: And that's when they went fishing?
A: Well, that's when they all voted -- it
was not -- I think, you know, it was
like . . . they were voting as a group
and they all accepted I guess.
Q: I see. Were there other processors
offering 70 cents at that time or--
A: No. I mean, well, I think 70 cents was
offered about four days . . . before
that by another fish company. And they
rejected it.
Q: Oh, they did?
A: Yes, I think Nelbro offered 70 cents,
but -- in Egegik about the 28th of June.
Q: Okay. Do you recall if any other
processors were offering 70 cents by
around the July 3rd period?
A: Everybody was.
Q: Everybody was?
A: Basically everybody. Well, they just
agreed they'll pay 70 cents.
Q: The fishermen agreed?
A: (No audible response).
In another deposition, Torres was asked about his response to
this last question, and he claimed that he nodded in response.
The Torres statement does not constitute direct
evidence of conspiracy. On its face, the deposition testimony
could be understood to mean that the processors "agreed" between
themselves to pay $0.70. However, the statement is ambiguous
because it could also be understood to mean that the processors
each individually "agreed" with their fisher fleets to pay $0.70,
especially when both deposition excerpts are read together. This
is not direct evidence of conspiracy.
d. Future price discussions
The plaintiffs presented evidence of future price
discussions in advance of the 1989, 1990, and 1992 seasons. In
1989 some processors started the season with in-season prices of
$1.25 but eventually most processors settled at $1.00 on June 24
or June 25. Before the season, Nelbro employees predicted the
$1.25 price; some importer employees predicted it as well and
stated that there was a general desire or intention among
processors to bring that price down to $1.00.
This evidence from the 1989 season is not direct
evidence of conspiracy because the factfinder must infer that
Nelbro's prediction was tied to an agreement or that the general
"desire" or "intention" to lower prices was more than a
unilateral attitude held by one or more processors individually.91
In 1990 most of the processors posted an in-season
price of $1.00. The plaintiffs' evidence shows that before the
season a Nelbro representative separately discussed possible in-
season prices with representatives from Marubeni and a nonparty
importer. Notes from these meetings state simply: "Last Yr. F.P.
1-1.25 . . . 75c -- Likely 1.00" and "B.Bay fish price maybe 80-
90-1.00." After these meetings, a Nelbro representative wrote:
"[A] major advance at 1.00 is most likely." This does not
constitute direct evidence of conspiracy because the notes are
ambiguous and the factfinder would have to infer agreement on
price levels to find a conspiracy.92
In 1992 most of the processors posted in-season prices
of $1.00. Written notes from a June 17, 1992 meeting between
Nelbro and Peter Pan state: "Bay -- advance 1.00; close 22nd."
This statement, like the others considered above, requires an
inference to conclude that this was part of an agreement to fix
pricing.
2. Some of the plaintiffs' evidence tends to exclude
the possibility of independent action.
As discussed earlier, under the Matsushita analysis,
the defendant is not entitled to summary judgment if the
plaintiff presents evidence that tends to exclude the possibility
of independent action. Where the plaintiff's theory is based on
"conscious parallelism," the plaintiff may present evidence that
tends to exclude the possibility of independent action by
submitting evidence that constitutes "plus factors."93 Therefore,
a plaintiff in an antitrust price-fixing case may avoid summary
judgment by presenting evidence that tends to show consciously
parallel behavior in addition to plus factors.
a. Conscious parallelism
Evidence of conscious parallelism is evidence: "(1)
that the defendants' behavior was parallel [and] (2) that the
defendants were conscious of each other's conduct and that this
awareness was an element in their decision-making processes."94
The superior court held that the plaintiffs' evidence
supported a reasonable inference of conscious parallelism because
"the evidence shows that processors' conduct was parallel and
interdependent." The superior court noted that the defendant
processors conceded in the defendants' collective motion for
summary judgment that prices were parallel. Some defendants also
appear to make this concession on appeal.
Even without a concession, conscious parallelism is
established by the plaintiffs' evidence. Evidence in the record
tends to show that, while not perfectly parallel, prices paid by
the defendant processors between 1989 and 1995 were within a
tight range and were often exactly parallel.95 And the evidence
of price verifications tends to show that the defendants were
conscious of each other's conduct and that this awareness was an
element in their decision-making processes. All eight processor
defendants engaged in price verifications. There is also
evidence that the defendant processors' knowledge of each other's
prices was an element in their decision-making. As a Peter Pan
representative explained:
Q: And why do you verify prices that
another [processor] is paying fishermen
in the Bay?
A: We get a lot of information and feedback
from fishermen, and they all seem to
have relatives or friends that fish for
other companies. But sometimes the
information you get from fishermen is
not accurate.
Q: And why would you want to verify what a
competitor is paying?
A: Well, we want to know that the -- the
information is accurate. We certainly
would not want to react to information
that was inaccurate.
Q: When you say you don't want to react to
information that's inaccurate, do you
want to react to what a competitor is
paying?
A: If we want to keep and maintain a
fishing fleet, we have to.
Other testimony also tends to show that processors used the price
verifications in their decision-making. Together with the
evidence of parallel prices, this evidence tends to establish
conscious parallelism.
b. Plus factors
The plaintiffs presented several pieces of evidence
that constitute plus factors. These will be discussed in turn.
i. Torres statement concerning 1991 actions
As already discussed, the statement by NPPI employee
Robert Torres concerning the 1991 strike can be read to state
that the processors "agreed" between themselves to collectively
offer an in-season price of $0.70 to settle the strike. Evidence
of a traditional conspiracy agreement is a plus factor,96 and the
Torres statement qualifies as such because it supports a
reasonable inference that some or all of the defendant processors
agreed to fix prices for raw salmon.
ii. Future price discussions
Some of the plaintiffs' evidence concerning future
price discussions tends to show that defendant processors
communicated their intentions for future prices to other
defendant processors or importers. In particular, in 1989 Nissui
employees made statements tending to show that multiple
processors made communications concerning future prices to them:
"There is a desire to start under $1.00. There is also an
intention to bring the current price of $1.25 down later after
seeing how the fishing is going." Another Nissui document stated
that the major processors "show signs that their [in-season]
price will start at $1.00/lb." Also, the intention to bring the
initial $1.25 price down to $1.00 could have been discussed by
employees of Nelbro and Peter Pan, and Nelbro and Marubeni.
Notes from these stated: "Two-tier price" and "F[ish] P[rice] Bay
. . . 1.00."
In 1990 an employee of a nonparty processor testified
that a Nelbro representative told him on July 1, 1990, the same
day that prices were posted, that Trident had "confirmed" with
Nelbro that "[Trident was] paying $1.00" and that, for the
season, "[t]hey were going to pay between $1.00 and $1.50."
In 1992, five days before Nelbro posted its $1.00
price, notes from a June 17 meeting between Nelbro and Peter Pan
state: "Bay -- advance 1.00; close 22nd," which tends to show
that this price intention was communicated to Peter Pan by
Nelbro.
Evidence of collusive interdefendant communications is
a "plus factor,"97 and the evidence of future price discussions
noted here qualifies as such98 because it tends to show that
defendants communicated to each other their intentions for future
prices, which would be necessary to fix prices for the salmon
that the defendants were buying.
iii. Pressure applied on nonparty processors
Woodbine and Baypack, and on nonparty
importer Shin Nishoku
The plaintiffs' evidence tends to show that defendant
processors applied pressure on smaller processors and importers
in an apparent attempt to force them to lower their prices to the
prices paid by the defendant processors.
In 1990 and 1991 nonparty importer Mitsui told
Woodbine, a small nonparty processor, that its in-season prices
were too high and that Trident and Wards Cove had complained
about these prices.99 Other evidence tends to show that Icicle
and Nelbro were concerned. Mitsui threatened Woodbine with
termination of their business relationship, and Woodbine did
lower the prices as a result, matching the prevailing prices used
by the defendants in 1991 and 1992.
In 1995 Nelbro representatives complained to Baypack,
another small nonparty processor, about its higher in-season
prices. The Nelbro representative told Baypack that Baypack's
higher prices would "damage" Nelbro's "neighbors" -- Ocean
Beauty, Trident, and Unisea -- by "taking away their fishermen."
The Nelbro representative told Baypack that a Trident
representative had said "he was going to bury [Baypack]." Also,
a Nelbro representative "accused [Baypack] of screwing up the
industry by paying an outrageous cash price."
Finally, other evidence concerns pressure exerted in
1990 on nonparty importer Shin Nishoku, which bought fish from a
nonparty processor. The nonparty processor used a tramper
supplied by Nichiro, and a Peter Pan representative expressed
concern to Nichiro about the high prices paid by Shin Nishoku and
its processor. The Peter Pan representative "expressed in the
strongest possible terms that that relationship is total[ly]
contrary to the good of Peter Pan and must be broken off . . . ."
Subsequently, Nichiro terminated its services to the small
processor.
Evidence of attempts to control or influence the
behavior of independent, nondefendant buyers who threaten the
conspiracy is a plus factor,100 and the evidence of pressure
exerted on small processors and importers noted here qualifies as
such.101 This evidence tends to show that defendant processors and
importers collaborated to exert pressure on smaller processors
and importers who offered higher salmon prices and threatened the
stability of the lower prevailing market prices in Bristol Bay.
iv. The "Okaya Action Plan" for 1991
The plaintiffs presented evidence that tends to show
that in December 1990 Okaya representatives presented documents
to Wards Cove and Nelbro that suggested "mutual cooperation"
between processors and importers. The document presented to
Wards Cove noted: "We are assure[d] that Wards Cove Packing as a
leader of this industry can establish reasonable FOB prices by
enforcing to control the ground prices." The document presented
to Nelbro stated that "we believe [Wards Cove's] prices can be
very useful for our reasonable pricing for the Japanese buyers
every season."
As already noted, evidence of a traditional conspiracy
agreement is a "plus factor."102 However, as the defendants point
out, the evidence presented by the plaintiffs does not qualify as
such unless there is evidence of both an invitation to collude,
as well as acceptance of that invitation.103 The plaintiffs'
evidence constitutes a "plus factor" because it tends to show
that there was an invitation to collude and that Wards Cove and
Trident accepted that invitation. The documents presented by
Okaya provide evidence tending to establish the invitation.
Acceptance can reasonably be inferred from the evidence that
Wards Cove set a low initial price in 1991 before other defendant
processors,104 from the evidence that Trident representatives
"agreed" with Mitsui's suggestion of a $0.50 initial price in a
February 1991 meeting, and from the evidence that Trident and
Wards Cove applied pressure on Woodbine by complaining to Mitsui.
Therefore, the evidence concerning the "Okaya Action Plan"
constitutes a "plus factor." The evidence of "plus factors,"
along with the evidence tending to establish "conscious
parallelism," creates issues of material fact that require
reversal of both collective motions for summary judgment.105,106
C. The Plaintiffs Properly Pled Their "Alter Ego" Theory
of Liability.
Because we reverse the grant of summary judgment, we
must reach a second issue raised by the plaintiffs -- whether the
plaintiffs' "alter ego" theory of liability for three importer
defendants was properly pled under Civil Rule 8(a).107 Under this
corporate "alter ego" theory, the plaintiffs seek to hold three
of the defendant importers liable (Marubeni, Nissui, and Nichiro)
for the actions of defendant processors (respectively, NPPI,
Unisea, and Peter Pan) that are wholly owned subsidiaries of
these importers.
The superior court affirmed the discovery master's
order that ruled that the plaintiffs did not properly plead
corporate "alter ego" claims, and therefore discovery was limited
to exclude these claims. The plaintiffs ask us to reverse this
ruling.
In their fourth amended complaint, the plaintiffs did
not explicitly mention any theory of corporate veil piercing.
Instead, the complaint noted in each case that the processor was
the subsidiary or agent of the importer:
Upon information and belief, defendant [NPPI]
is a Washington corporation . . . . Upon
information and belief, until 1994 said
defendant was wholly owned and controlled by,
and/or was the agent of [Marubeni] . . . and
since 1994 has been wholly owned and
controlled by and/or an agent of
principal/defendant [Marubeni] . . . and
another corporate subsidiary of [Marubeni].
The complaint contains similar statements for Peter Pan/Nichiro
and Unisea/Nissui.108 Also, the complaint claims that the
importers were the "principals of," and controlled the actions of
the subsidiaries, and were "liable for the actionable . . .
conduct complained of" on the part of their subsidiaries:
[Marubeni] did exercise or retained the right
to exercise control over and was the
principal of [NPPI]. . . . [Marubeni] has
assumed and/or is responsible for the
liabilities and/or the contingent liabilities
of [NPPI] . . . regardless of the date of the
culpable acts alleged herein, and is liable
for the actionable and culpable conduct
complained of herein.
Similar language exists also for Peter Pan/Nichiro and
Unisea/Nissui.109
Below, the discovery master held that the "alter ego"
claim was not adequately pled. The master determined that our
decision considering similar circumstances in Murat v. F/V
Shelikof Strait110 is distinguishable, and the master noted that
federal cases considering similar circumstances require, at a
minimum, some of the "conclusory references associated with the
corporate piercing doctrine or sufficient factual allegations
from which defendants could infer a piercing claim." Since the
plaintiffs' complaint failed to live up to this standard, the
"alter ego" claims were not adequately pled.
The plaintiffs request reversal of the discovery order.
The defendants, on the other hand, note that the complaint failed
to sue the importer defendants "in their capacities as
shareholders" of the subsidiaries, and they therefore claim that
the discovery order should be upheld.111
The superior court and discovery master did not have
the benefit of our recent decision in McCormick v. City of
Dillingham,112 which requires reversal of the superior court's
ruling in this case. In McCormick, the City of Dillingham sued a
corporation and its shareholder to collect unpaid taxes and fees.113
The superior court conducted a bench trial and pierced the
corporate veil to allow recovery from the shareholder.114 The
shareholder claimed that the corporate veil theory was
inadequately pled, but we rejected that argument.115 The complaint
in McCormick did not specifically request piercing of the
corporate veil.116 However, the initial complaint named the
shareholder as the sole defendant, and an amended complaint named
the corporation as an additional party after the shareholder
"replied that he was only an employee of Hillbilly Enterprises."117
We held that the "alter ego" theory was adequately pled:
[I]f a party has notice of the conduct for
which the opposing party is seeking relief,
the opposing party may recover under any
theory supported by the evidence. . . .
Dillingham alleged in its first complaint
that [the shareholder] had failed to pay city
taxes, fees, and penalties, stating that it
would seek payment from [the shareholder].
[The shareholder] therefore had sufficient
notice.[118]
Like the complaint in McCormick, the complaint in this
appeal did not specifically request piercing of the corporate
veil, but it did name the importers as defendants, and it stated
that it would seek recovery from those defendants for the actions
of the subsidiaries. And the importers certainly "ha[d] notice
of the conduct for which the opposing party is seeking relief,"119
since they were independently sued as conspirators, and the
complaint expressly alleged that they were "responsible for the
liabilities" of their wholly owned subsidiaries and were "liable
for the actionable and culpable conduct" that they allegedly
committed. Therefore, the plaintiffs' "alter ego" theory was
adequately pled.
D. Alaska Statute 45.50.588 Limits the Recoverable Damages
in this Case.
The defendants, as cross-appellants, also appeal the
superior court's ruling allowing the plaintiffs to recover for
damages for conduct that took place beginning in 1989. The
plaintiffs, along with amici curiae States of Alaska, Hawaii,
Minnesota, Nevada, New Mexico, and West Virginia, ask this court
to uphold that ruling.
The plaintiffs brought suit in June 1995. The
plaintiffs seek damages for conduct that took place from 1989
through 1995. The applicable statute of limitations is AS
45.50.588:
An action to enforce a claim arising under AS
45.50.562 - 45.50.596 is barred unless
commenced within four years after the claim
accrues . . . . For the purpose of this
section, a claim for a continuing violation
is considered to accrue at any time during
the period of the violation.
(Emphasis added.) The superior court held that the underlined
portion means that the statute of limitations does not begin to
run until "the last act in furtherance of the conspiracy is
completed." Therefore, "the plaintiffs can recover damages that
occurred more than four years before the filing of the
complaint," including damages for acts in 1989. The superior
court based its decision on the explicit language of AS 45.50.588
and on the rule of statutory construction that no language in the
statute should be rendered meaningless. The defendants appeal
this ruling, claiming that AS 45.50.588 allows the statute of
limitations to be tolled, but that recoverable damages are
limited to those traced to acts that took place only four years
or less before suit was filed.
The defendants claim that the language of AS 45.50.588
"does not address the scope of damages that a plaintiff may
recover" because the last sentence of AS 45.50.588 tolls claims
for continuing violations but is silent as to whether damages may
be recoverable for the whole continuing conspiracy. The
implication is that the language of AS 45.50.588 is ambiguous and
that the legislative history of that statute will be decisive.
The plaintiffs respond by claiming that "[t]he point of
[the statute] is to establish the periods for which damages are
available." The plaintiffs claim that the plain meaning of the
statute gives them "the right to file an action for damages
seeking recovery for injuries caused by a continuing conspiracy
at any time during its continuation." The implication is that
once the plaintiffs file suit, damages for the whole conspiracy
are recoverable. So, the plaintiffs reject the defendants'
attempt to distinguish the right to sue, which is plainly tolled,
from the right to collect damages, which the defendants claim is
not addressed by the plain language of AS 45.50.588.
We agree with the defendants. One of the primary
purposes of a statute of limitations is to prevent past dubious
deeds from hanging like a sword of Damocles over the heads of
potential defendants.120 A corollary of this principle is that a
statute of limitations encourages potential plaintiffs to file
their suits in a timely fashion.121 The language in AS 45.50.588,
providing that "a claim for a continuing violation is considered
to accrue at any time during the period of the violation," does
not, as the superior court held, require that recovery be granted
going all the way back to the initial transgression, which in the
present case would be 1989. Rather, the passage in question
merely holds that the statute of limitations may begin "at any
time" while the violation is ongoing.
We hold that AS 45.50.588 limits recovery for damages
to four years prior to the time at which the suit was filed. A
"continuing violation" means that there are a series of related
acts causing damage to a plaintiff and that each successive act
marks the accrual of a new claim; it does not mean that the
damages suffered before the earliest allowable accrual date under
the applicable statute of limitations may be recovered.122
Moreover, we reject the ruling of the superior court that "[t]he
four year statute of limitations does not begin to run on any
claims arising out of a conspiracy until the last act in
furtherance of the conspiracy is completed." We therefore hold
that the accrual date in AS 45.50.588 lies four years prior to
the date on which the suit is filed, absent another reason that
would result in the tolling of the statute of limitations.
Because this case commenced on June 1, 1995, only those damages
suffered after June 1, 1991 can be recovered if the plaintiffs
prevail at trial.
In reaching this conclusion, we are following the
precedent we established in Oaksmith v. Brusich, where we held
that the purpose of the continuing violation doctrine is to avoid
the sometimes harsh rule that a claim is measured from the
initial wrong:
The court held that Daniel Brusich's actions
constituted a pattern of conduct analogous to
[a] continuing trespass or nuisance
situation[]. . . . Under theories of
continuing trespass or nuisance, each harmful
act constitutes a new cause of action for
statute of limitations purposes and,
therefore, the accrual of a cause of action
is not measured from the date of the initial
trespass so as to bar the entire action.
However, while later continuing acts may
prevent the running of the statute of
limitations on the claim, damages cannot be
recovered for the initial time-barred
acts.[123]
Placing the date of accrual for a continuing violation at the
statutory period prior to the date suit was filed retains the
purpose of a statute of limitations while also giving potential
plaintiffs a reasonable chance at recovery.
We find further support for our conclusion in Zenith
Radio Corp. v. Hazeltine Research,124 a United States Supreme Court
decision interpreting 15 U.S.C. 15b.125 In Zenith, the Court
considered a situation in which a plaintiff brought suit in 1963
for damages suffered between 1959 and 1963.126 Noting that some of
these damages were the result of acts that occurred long before
1959, the Court concluded that suit must commence within the
applicable statute of limitations measured from the injurious
act.127 The Court held that in the course of a "continuing
conspiracy," each act of the conspiracy is a separate cause of
action that accrues for the plaintiff and that the limitations
period starts running on each cause of action as soon as the act
is committed.128 The effect, then, of a continuing violation, is
to provide a new, and perhaps perpetually rolling, date from
which the statute of limitations may begin.129 It does not,
however, suspend or toll the running of the statute of
limitations on those previous events. Consequently, the statute
of limitations functions as an outer limit of the damages that
can be recovered, since any damages suffered prior to that period
are barred by the statute of limitations.130
The Supreme Court reached a similar conclusion in
Hanover Shoe v. United Shoe Machinery.131 There, the Court found
that United Shoe was liable for monopolization by insisting on
leasing its machinery rather than selling it.132 This practice had
been going on continuously since 1912.133 The Court held:
We are not dealing with a violation which, if
it occurs at all, must occur within some
specific and limited time span. . . .
Rather, we are dealing with conduct which
constituted a continuing violation of the
Sherman Act and which inflicted continuing
and accumulating harm on Hanover. Although
Hanover could have sued in 1912 for the
injury then being inflicted, it was equally
entitled to sue in 1955.[134]
The Court also remarked that "Hanover is entitled to damages for
the entire period permitted by the applicable statute of
limitations."135
Applying the reasoning of these decisions to the
present case yields the conclusion that suit for a continuing
violation may take place at any time during which the violation
was ongoing but that recovery is limited to the period prior to
the filing of suit prescribed by the applicable statute of
limitations. This is the holding we reach today.136 The superior
court is directed upon remand to limit any damages calculations
to those damages suffered after June 1, 1991.
V. CONCLUSION
Because the plaintiffs have presented evidence that
raises material issues of fact as to the existence of an
antitrust conspiracy involving some or all of the defendants, we
REVERSE the superior court's ruling granting summary judgment to
all defendants. Because the plaintiffs properly pled their
"alter ego" theory of liability, we REVERSE the superior court's
ruling limiting discovery to exclude this claim. We REVERSE the
holding of the superior court that AS 45.50.588 allows recovery
for damages back to 1989 and hold instead that damages are
limited to the four years prior to the filing of the suit. We
REMAND to the superior court for further proceedings consistent
with this opinion.
_______________________________
1 "British Columbia Packers" and "Nelbro" are essentially
the same entity; British Columbia Packers is the exclusive sales
agent, while Nelbro conducts processing operations.
2 Some documents in the record refer to the in-season
price as the "ground[s]" price, or "ex vessel" price.
3 There were also special premiums paid in certain
circumstances -- for example, for low-volume catches kept fresh
in refrigerated seawater.
4 Marubeni owns NPPI; Nissui owns Unisea; Nichiro owns
Peter Pan.
5 "Averages" of $2.10 (1988), $1.25 (1989), and $0.68-
$1.12 (1990-1995) were calculated by one of the plaintiffs'
experts and were marked as the average "ex vessel" price for
those seasons.
6 Because this is a review of a grant of summary
judgment, we draw all reasonable inferences in favor of the
non-movant, the plaintiffs. See Moore v. Allstate Ins. Co., 995
P.2d 231, 233 (Alaska 2000).
7 Notes from a June 26, 1992 conversation between Nelbro
and Wards Cove representatives state: "[Nelbro's] Trev [Beeston]
calls -- [Peter Pan's] Roos [Van Vactor] thinks large run -- Trev
looking for export tenders; confirm $." The participants
apparently talked briefly about the quality of the upcoming run;
this is confirmed by testimony from one of these representatives.
Another set of similar notes from a June 17, 1992
conversation between Peter Pan and Nelbro representatives
indicate that they discussed the quality and size of the upcoming
run, as well as, possibly, what the in-season price would be:
"Bay -- advance 1.00; close 22nd."
Finally, some notes indicate that there may have been
calls between Unisea and Peter Pan representatives on June 20,
1990 concerning "prices and catch" in other fisheries in Port
Moller and False Pass. The Unisea representative stated that he
made these calls "to give[] us an idea of how the run is shaping
up."
8 This processor representative stated that these topics
included "what were sockeye selling for now, what was the market
doing" and "[t]he market for sockeye in Japan."
9 Defendants prefer to characterize these events as a
"boycott," in which "the fishers demonstrated their considerable
economic power."
10 Ocean Beauty matched this price retroactively. The
parties do not point to anything in the record that shows what
price Unisea paid to settle the strike in 1991.
11 The document is dated June 26, with no year, and in a
deposition a Mitsui employee was unable to provide the year.
12 The notes from the May 23 meeting state, under the
headings "Bene" [Marubeni] and "B.Bay": "Last Yr F.P. 1-1.25
. . . 75c -- Likely 1.00."
The notes from the June 6 meeting state, under the
heading "Taiyo" [employee of nonparty importer]: "B.Bay fish
price maybe 80-90-1.00."
13 A representative of a nonparty processor testified that
on July 1, 1990: "[A Nelbro representative] mentioned that he had
confirmed with Trident that they were paying $1.00. They were
going to pay between $1.00 and $1.50." July 1, 1990 notes from a
Unisea representative contain the notation: "Advised Trident &
Nelbro will announce a 1.00 advance price today."
14 The parties do not point to anything in the record that
shows what prices Unisea paid during the 1992 season.
15 The first document supporting this, a Mitsui telex,
states: "Stop our price conditions is Trident/P.Pan price plus
USC90 or 58.5/LB to be covered everything."
The second document, apparently another Mitsui telex,
states: "We plan to buy at the market price, which is the
P.Pan/Trident price plus. As you already know, we are not having
Chaggee purchase fish at just any price."
16 The Wards Cove representative explained in a deposition
that the high price "bothered [him] . . . [because he] was
getting market price information that didn't appear to [him] to
justify that kind of grounds price." When asked if it bothered
him because it showed that prices in Bristol Bay would be high,
the representative stated, "I don't know if that was my concern."
17 A Woodbine representative testified:
Q: What sort of things did the Mitsui
employees tell you . . . ?
A: Primarily that we were paying too much.
That the other companies weren't paying
as high.
18 A Woodbine representative testified:
Q: So you would have heard . . . statements
about the complaints from the other
processors, several times a week during
the 1990 Bristol Bay salmon season?
A: Right. . . .
. . . .
Q: [D]id the Mitsui employees ever identify
particular other processors who were
making these complaints?
A: Um, the only one that was usually
specifically mentioned was Sam Yoshida
from Wards Cove . . . .
. . . .
Q: . . . [In 1991], did any of those Mitsui
employees identify particular other
companies that had complained to Mitsui
about Woodbine's high grounds prices
. . . ?
A: . . . there was a reference at one point
to Trident and crab; in other words,
that they wanted to buy crab from
Trident, but [Trident] may not sell them
to Mitsui because [Mitsui was] buying
salmon from Woodbine.
In addition, a March 9, 1991 Mitsui telex paraphrased a
Trident representative as saying: "[The Trident representative]
is very critical [of] Japanese buyers who back up small size
operators like [Woodbine]. Those operators always raise
fishermen price and cause a big problem to major operators. He
knows we buy fish from [Woodbine]."
19 An internal Mitsui telex indicates that Mitsui met
separately with Wards Cove, Nelbro, and Icicle representatives to
discuss the situation on June 26, 1990. The processor
representatives expressed concern, and Mitsui stated:
"[E]verybody now knows our business with Woodbine naturally. . .
. I think [Woodbine] will take just reasonable attitude against
fish purchase. And will not be so strong to lead price."
20 The Woodbine representative testified that the Mitsui
representative told her: "The price was too high. We can do
business with Wards Cove. We don't have to do business with
Woodbine."
21 The Woodbine representative testified:
Q: What was the nature of the threats that
were made to you by [Mitsui]?
A: [Mitsui] had told us that, if we didn't
start lowering our price, that some of
the other [processors] were not going to
continue selling products to them.
Q: How many times did [Mitsui] make that
particular threat in [its] discussions
with you?
A: Well . . . the threat may not have been
worded in that exact way, but [Mitsui]
would make reference to them not being
able to buy product from other companies
and that they didn't know if they could
continue buying from us.
22 At one point in the 1990 season, Woodbine was paying
$1.35, which Mitsui told Woodbine was unacceptable, citing their
"cost plus" contract. In response, Woodbine lowered the price to
$1.25.
A May 1991 Mitsui telex states that Mitsui was willing
to buy salmon from Woodbine only if their in-season price was to
be between $0.50-$0.60. A June 1991 telex declares that "we
believe that [the in-season price] should be as low as USC50 in
order to protect packer's profit."
23 The Woodbine representative testified: "It was my
opinion that, after the repeated warnings by Mitsui . . .
especially in referring to Wards Cove, and they also told us that
[Mitsui] had shifted [its buying] to Wards Cove in 1991, that
they were no longer going to do business with us because of
that."
24 However, the Baypack representative claimed that he
hired a private investigator who contacted Nelbro fishers and
found no evidence of any "uprising."
25 However, on another occasion the Wards Cove
representative claimed not to remember any discussion of the
relevant text in the "Action Plan." Also, an Okaya employee who
was apparently at the meeting claimed that he had no memory of
the Wards Cove representative's alleged statements about the
illegality of price-fixing; however, the Okaya employee did
remember that the Wards Cove representative "said something like
it is impossible for Wards Cove to control beach prices."
Another Wards Cove employee testified that the first
representative said at the meeting that "we can't get involved in
pricing; setting fish prices."
26 This April 20, 1991 telex states that Wards Cove
representatives stated that there was "no need to cut fishermen
price as low as USC 50-60-70." The document implies that lower
prices were needed and that this was explained to Wards Cove: "We
explained to [Wards Cove] what you want to explain against such
packers' [action]."
27 This June 10, 1991 telex states: "We believe that
fishermen's price for Bristol Red should be as low as USC50 in
order to protect packer's profit."
28 The report also stated prices that were "[t]he Japan
side's desired price," which presumably referred to the prices to
be paid by Okaya to processors.
29 The plaintiffs claim that other meetings may be
inferred between Nichiro and other importers and processors from
a document from a Nichiro employee detailing that employee's work
responsibilities. However, this document is dated March 1990.
Another similar document dated April 1992 seems to indicate that
a Peter Pan employee did have regular contacts with processors
and importers: "Just before a salmon . . . season began, I
wanted to find out about the movements of [illegible] in
particular and other companies (especially FOB prices). To this
end, I contacted industry people on the attached list." A
Nichiro employee's contact list included representatives of
Icicle, Trident, Wards Cove, Nippon Suisan, and NPPI.
30 The defendants suggest that we could affirm summary
judgment on the basis that plaintiffs have failed to show
provable damages. The defendant importers, in particular, ask us
to consider their entire motion to dismiss for failure to show
damages filed below, and they also include in their brief an
abbreviated version of the argument they made below. The
importers claim that the plaintiffs' expert's theory of damages
is flawed because it assumes that the fishers' profits should be
a constant fifty-six percent share of the wholesale price, which
is implausible because fishers only received such a share between
1986 and 1988, and not before or after. The importers cite their
own expert testimony in opposition to the plaintiff's theory.
This is a factual dispute that is best left to the superior court
to resolve, and will not be addressed by this opinion.
31 See Moore v. Allstate Ins. Co., 995 P.2d 231, 233
(Alaska 2000).
32 See id.
33 See id.
34 See id.
35 See id.
36 See Philbin v. Matanuska-Susitna Borough, 991 P.2d
1263, 1265 (Alaska 1999).
37 Id. at 1265-66 (quotations omitted).
38 See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).
39 Gamble v. Northstore Partnership, 907 P.2d 477, 482
(Alaska 1995).
40 See Gossman v. Greatland Directional Drilling, Inc.,
973 P.2d 93, 95 (Alaska 1999).
41 See 15 U.S.C. 1 (2000).
42 See Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).
43 See id. at 762; Betz v. Chena Hot Springs Group, 742
P.2d 1346, 1349 (Alaska 1987).
44 See Odom, 999 P.2d at 762.
45 See id. at 762 (quoting Oltz v. St. Peter's Community
Hosp., 861 F.2d 1140, 1145 (9th Cir. 1988)).
46 See Betz, 742 P.2d at 1349.
47 KOS ex rel. Sourdough Freight Lines, Inc. v. Alyeska
Pipeline Serv. Co., 676 P.2d 1069, 1072 (Alaska 1983).
48 Odom, 999 P.2d at 762.
49 Id.
50 See Moore v. Allstate Ins. Co., 995 P.2d 231, 233
(Alaska 2000).
51 Gablick v. Wolfe, 469 P.2d 391, 395 (Alaska 1970); see
also Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv.
Co., 584 P.2d 15, 24 (Alaska 1978).
52 See Totem, 584 P.2d at 24.
53 See Holland v. Union Oil Co., 993 P.2d 1026, 1031-32
(Alaska 1999) (inference of "just cause" employment relationship
not reasonable from document because no reasonable juror could
draw that inference); Smith v. State, 921 P.2d 632, 634-36
(Alaska 1996) (inference from evidence that State undertook duty
of care was reasonable because jury could reasonably infer that
State undertook duty); Mulvihill v. Union Oil Co., 859 P.2d 1310,
1314 (Alaska 1993) (inference that defendant undertook duty of
care was not reasonable because "reasonable people could not
differ on the nature and extent of this voluntarily undertaken
duty").
54 Yurioff v. American Honda Motor Co., 803 P.2d 386, 389
(Alaska 1990) (quoting State, Dep't of Highways v. Green, 586
P.2d 595, 606 n.32 (Alaska 1978)); see also French v. Jadon,
Inc., 911 P.2d 20, 25-26 (Alaska 1996) (deposition testimony by
non-movant is not enough to oppose summary judgment when that
testimony is based on unsupported suppositions).
55 751 P.2d 939, 944 (Alaska 1988) (quoting Dairy Stores,
Inc. v. Sentinel Publ'g Co., 516 A.2d 220, 236 (N.J. 1986)). In
Moffatt, we rejected a summary judgment standard in which "the
appropriate summary judgment question will be whether the
evidence in the record could support a reasonable jury finding
either that the plaintiff has shown actual malice by clear and
convincing evidence or that the plaintiff has not." Id. at 942
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56
(1986)).
56 994 P.2d 365, 367 (Alaska 1999) (quotations omitted).
57 Id.
58 See Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).
59 In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d
Cir. 1999); Rossi v. Standard Roofing, Inc., 156 F.3d 452, 466
(3d Cir. 1998); Petruzzi's IGA Supermarkets, Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993).
60 In re Baby Food Antitrust Litig., 166 F.3d at 118; see
also In re Citric Acid Litig., 191 F.3d 1090, 1094 (9th Cir.
1999).
61 In re Baby Food Antitrust Litig., 166 F.3d at 118
(quotation omitted).
62 See Petruzzi's, 998 F.2d at 1230.
63 475 U.S. 574 (1986).
64 Id. at 584.
65 465 U.S. 752 (1984).
66 Matsushita, 475 U.S. at 588.
67 See id. at 595-97.
68 Id. at 597-98.
69 See id.
70 AD/SAT v. Associated Press, 181 F.3d 216, 233 (2d Cir.
1999) (quoting Matsushita, 475 U.S. at 588); see also Ideal Dairy
Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 748 (3d Cir.
1996); Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d 1167,
1171 (7th Cir. 1990); Riverview Investments, Inc. v. Ottawa
Community Improvement Corp., 899 F.2d 474, 483 (6th Cir. 1990);
Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1379
(10th Cir. 1988).
71 AD/SAT v. Associated Press, 181 F.3d 216, 233 (2d Cir.
1999) (quoting Matsushita, 475 U.S. at 588); see also Ideal Dairy
Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 748 (3d Cir.
1996); Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d 1167,
1171 (7th Cir. 1990); Riverview Investments, Inc. v. Ottawa
Community Improvement Corp., 899 F.2d 474, 483 (6th Cir. 1990);
Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1379
(10th Cir. 1988).
The Court in Matsushita also based its decision on
another analysis applied by some courts. The Court held that
summary judgment was proper in part because the alleged
conspiracy was "economically senseless." Matsushita, 475 U.S. at
596-98. Specifically, the predatory pricing scheme alleged was
one that "makes no practical sense" because the goal of the
conspiracy was impossible and the conspirators had no "rational
motive" to engage in the conspiracy. See id.
Other federal decisions applying this analysis indicate
that summary judgment should be granted if the alleged conspiracy
makes no economic sense because the conspirators did not stand to
gain anything from the conspiracy or otherwise lacked a rational
motive to conspire. These decisions indicate that summary
judgment is rarely granted on this basis. See Bridges v. MacLean-
Stevens Studios, Inc., 201 F.3d 6, 14 (1st Cir. 2000) (affirming
summary judgment because an alleged conspiracy was "illogical";
plaintiffs presented no evidence showing that the conspirators
had a motive to conspire); Rossi v. Standard Roofing, Inc., 156
F.3d 452, 474-75 (3d Cir. 1998) (refusing to affirm summary
judgment on the basis of economic senselessness); Ezzo's
Investments, Inc. v. Royal Beauty Supply, Inc., 94 F.3d 1032,
1036 (6th Cir. 1996) (same); Petruzzi's IGA Supermarkets, Inc. v.
Darling-Delaware Co., 998 F.2d 1224, 1232 (3d Cir. 1993) (same);
Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir. 1987) (same).
72 Petruzzi's, 998 F.2d at 1233; see also Mitchael v.
Intracorp, Inc., 179 F.3d 847, 858 (10th Cir. 1999); Rossi, 156
F.3d 452 at 466; Alvord-Polk, Inc. v. F. Schumacher & Co., 37
F.3d 996, 1001 (3d Cir. 1994); Petroleum Prods., 906 F.2d at 441.
73 475 U.S. 587-88 (internal citation omitted).
74 475 U.S. 601 (White, J., dissenting).
75 994 P.2d 365, 367 (Alaska 1999) ("The court does not
weigh the evidence or witness credibility on summary judgment.").
76 751 P.2d 939, 944 (Alaska 1988).
77 See Petruzzi's, 998 F.2d at 1232, 1242 (defendants were
buyers of meat waste products from supermarkets who allegedly
rigged and divided the market to depress prices); In re Beef
Indus. Antitrust Litig., 907 F.2d 510, 513 (5th Cir. 1990)
(defendants were beef packers and processor buyers of cattle who
allegedly depressed cattle prices through price-fixing).
78 Apex Oil, 822 F.2d at 253 (quotation omitted); see also
Blomkest Fertilizer, 203 F.3d at 1032-33; In re Citric Acid
Litig., 191 F.3d at 1102; City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 570-71 (11th Cir. 1998); Mitchael, 179 F.3d
at 859; Petruzzi's, 998 F.2d at 1232; In re Beef Indus. Antitrust
Litig., 907 F.2d at 513-14; Petroleum Prods., 906 F.2d at 444-45;
Market Force, 906 F.2d at 1172; Dunnivant v. Bi-State Auto Parts,
851 F.2d 1575, 1583 (11th Cir. 1988).
79 See Apex Oil, 822 F.2d at 253.
80 Counsel for the defendants stated at oral argument that
"[t]he plaintiff has some burden under federal law to come
forward with . . . evidence . . . that tends to exclude the
possibility of independent action." In response to the question,
"[i]s that like the plus factors?" counsel replied, "that's . . .
exactly correct on that. It is the plus factors . . . ."
81 See Petruzzi's, 998 F.2d at 1232; In re Beef Indus.
Antitrust Litig., 907 F.2d at 514; Petroleum Prods., 906 F.2d at
445.
82 See Blomkest Fertilizer, 203 F.3d at 1037; Harcros
Chems., 158 F.3d at 572-73; Mitchael, 179 F.3d at 859; In re Baby
Food Antitrust Litig., 166 F.3d 112, 122 (3d Cir. 1999);
Petruzzi's, 998 F.2d at 1242, 1245-46; Apex Oil, 822 F.2d at 254.
83 See In re Baby Food, 166 F.3d at 122; Petruzzi's, 998
F.2d at 1243, 1245-46; Apex Oil, 822 F.2d at 254.
84 See Petruzzi's, 998 F.2d at 1242, 1245-46.
85 See Blomkest Fertilizer, 203 F.3d at 1033-37; Petroleum
Prods., 906 F.2d at 445-47, 452-55; Apex Oil, 822 F.2d at 254.
86 See Petroleum Prods., 906 F.2d at 455-60.
87 Therefore, we do not address Ocean Beauty's arguments
that it should individually be granted summary judgment because
its prices were not parallel with those of the other defendant
processors and because the plaintiffs' evidence does not tie
Ocean Beauty to the alleged conspiracy. We leave these issues
for the superior court to decide on remand.
88 See Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d
1169, 1179 (Alaska 2000) (quoting Howarth v. First Nat'l Bank of
Anchorage, 540 P.2d 486, 489 (Alaska 1975)).
89 See Lowe v. Boggess, 375 P.2d 199, 199-200 (Alaska
1962) (where plaintiff alleged unspecified cause of action based
on "conspiratorial activities," defendant satisfied its burden on
summary judgment by simply denying participation in any
conspiratorial activities).
90 The statement by a nonparty processor that during the
1991 season it was attempting to "lower[] the fish price" by
"check[ing] with" each processor is also not direct evidence of
conspiracy because agreement by defendant processors must be
inferred.
91 The plaintiffs also presented the handwritten notes
made by a Nelbro employee which appear to document meetings
between Nelbro and Peter Pan on May 18, 1990, and Nelbro and
Marubeni on June 22, 1990. These notes are mostly illegible, and
they do not directly state that the participants reached any
agreement as to pricing levels or any other issues. The notes
from the May 18 meeting state: "Two-tier price," and the notes
from the June 22 meeting read: "F[ish] P[rice] Bay . . . 1.00."
Inferences are required to conclude from either of these cryptic
remarks that the participants agreed on these prices or engaged
in any other conspiratorial behavior.
92 Other evidence presented by the plaintiffs is also
clearly not direct evidence of conspiracy. The record does not
establish that any future prices were discussed at separate
meetings between Mitsui and Wards Cove, Nelbro, and Icicle, and a
document allegedly tied to this meeting stating, "Bristol Ground
Price dropping down to 1.00" has no year date. Also, the
evidence that Nelbro and Unisea representatives had advance
knowledge of Nelbro's and Trident's in-season pricing is silent
as to whether there was any agreement on pricing.
93 See Petruzzi's IGA Supermarkets, Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1232 (3d Cir. 1993); In re Beef
Indus. Antitrust Litig., 907 F.2d 510, 514 (5th Cir. 1990); In re
Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust
Litig., 906 F.2d 432, 445 (9th Cir. 1990).
94 Petruzzi's, 998 F.2d at 1243.
95 In 1989 in-season prices varied between processor
defendants in a range of $1.00-$1.55, with six of the seven
processor defendants for which information was in the record
posting the same in-season prices of $1.00 for the bulk of the
season, between June 25 and July 23.
In 1990 five of the seven processor defendants posted
initial in-season prices of $1.00, and only Ocean Beauty and
Icicle deviated from these prices during the season.
In 1991 the strike was resolved after six of the seven
processors agreed to pay $0.70. Ocean Beauty matched this price
retroactively.
In 1992 six of the seven processor defendants paid
$1.00 as an in-season price, while Ocean Beauty paid $1.05.
In 1993 all seven processor defendants initially paid
$0.60 as an in-season price, while Ocean Beauty increased its
price during the season to $0.75.
In 1994 in-season prices varied between processor
defendants in a range of $0.55-$1.00, while five of the seven
processor defendants paid initial prices of $0.40-$0.65, and all
seven raised the price to $0.80 as of July 13 and raised the
earlier price retroactively to $0.50-$0.65.
In 1995 in-season prices varied between processor
defendants in a range of $0.70-$0.80, with three processors
paying $0.73 and two paying $0.70 by the end of the season.
96 See Petruzzi's, 998 F.2d at 1244.
97 See Petroleum Prods., 906 F.2d at 445-47, 452-55;
Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203
F.3d 1028, 1033-37 (8th Cir. 2000); Apex Oil Co. v. DiMauro, 822
F.2d 246, 254 (2d Cir. 1987); Wilcox v. First Interstate Bank of
Oregon, 815 F.2d 522 (9th Cir. 1987).
98 Authorities cited by the defendants are irrelevant and
do not stand for the proposition that evidence of verification of
future prices is not a "plus factor." See Blomkest Fertilizer,
203 F.3d at 1033-34 (evidence of price verifications and
discussions at trade shows and in other contexts is not evidence
of conspiracy because there is no evidence that verifications had
impact on pricing); In re Citric Acid Litig., 191 F.3d 1090, 1099
(9th Cir. 1999) (defendant's participation in industry
organization was "legitimate" because it "served the perfectly
legal purpose of guaranteeing the reliability of . . . aggregate
statistics on worldwide market conditions").
99 The superior court held that some of the Woodbine
representative's testimony concerning statements made to her by
Mitsui were inadmissible hearsay. In particular, the superior
court held that testimony concerning statements by Mitsui about
things said to Mitsui by other processors was double hearsay not
covered by any exception. However, the plaintiffs do not rely on
these statements for the truth of the matters asserted; rather,
the plaintiffs seek to use them to show that the statements were
made to exert pressure in the course of an antitrust conspiracy
to fix prices. Therefore, the statements are not hearsay. See
Alaska R. Evid. 801(c); Stewart-Smith Haidinger, Inc. v.
Avi-Truck, Inc., 682 P.2d 1108, 1119 (Alaska 1984) ("Where
testimony is offered to establish that a statement was made,
rather than to prove its truth, the hearsay rule does not
apply.").
100 See Petroleum Prods., 906 F.2d at 455-60.
101 The defendants' claim that this evidence is not direct
evidence of conspiracy is irrelevant because even if there is no
evidence that the smaller processors and importers reached any
agreements with the defendants, the evidence that the defendants
collectively asserted pressure on them alone qualifies as a "plus
factor." Also, the weight of the evidence is irrelevant. The
evidence, even if only of "isolated incident[s]," tends to show
that some defendant processors and importers attempted to
influence the behavior of independent processors and importers
who threatened the conspiracy.
102 See Petruzzi's IGA Supermarkets, Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1244 (3d Cir. 1993).
103 See In re Citric Acid Litig., 191 F.3d at 1098.
104 Evidence in the record indicates that Wards Cove
started the 1991 season with an open ticket, and set an initial
price of $0.50 on June 29. Peter Pan also set an initial price
of $0.50 on that same day. With the exception of Ocean Beauty,
no other defendant processor set an initial price until the next
day, when NPPI matched that price.
105 Because we reverse the grant of summary judgment, we
need not reach the issue of whether the superior court properly
denied the defendants' motion for fees and costs.
106 We reject the importer defendants' arguments that
summary judgment should be affirmed even if the Matsushita
analysis shows that there are material issues of fact as to the
existence of a conspiracy.
First, the importers contend that summary judgment
should be affirmed because the plaintiffs have failed to present
evidence of agreements between importers and processors on
specific prices or price levels. However, the authority cited in
support of this proposition, Business Electronics Corp. v. Sharp
Electronics Corp., applies only to conspiracies consisting of
"vertical restraints." 485 U.S. 717, 735-36 (1988). However,
the conspiracy alleged by the plaintiffs, involving both
processors and importers and supported by evidence in the record,
is a "horizontal," or "interbrand" conspiracy. See Ezzo's
Invests., Inc. v. Royal Beauty Supply, Inc., 243 F.3d 980, 986-87
(6th Cir. 2001); Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 936 (7th
Cir. 2000).
Second, the importers note that it is impossible for an
importer and its subsidiary to conspire to restrain trade. This
is irrelevant, even if true, because the evidence that raises a
material issue of fact concerning a conspiracy tends to show that
importer defendants conspired with processors other than their
subsidiaries.
107 Civil Rule 8(a) provides that "[a] pleading which sets
forth a claim for relief, whether an original claim,
counterclaim, cross-claim or third-party claim, shall contain (1)
a short and plain statement of the claim showing that the pleader
is entitled to relief, and (2) a demand for judgment for the
relief the pleader seeks."
108 "Upon information and belief, defendant [Peter Pan] is
a foreign corporation . . . . Upon information and belief, said
defendant is wholly owned and controlled by, and/or is the agent
of defendant/principal [Nichiro] . . . . Upon information and
belief, defendant [Unisea] is a foreign corporation . . . and is
wholly owned and controlled by, and/or is the agent of
defendant/principal [Nissui]."
109 "[Nichiro] did exercise or retained the right to
exercise control over and was the principal of [Peter Pan]. . . .
[Nichiro] has assumed and/or is responsible for the liabilities
and/or the contingent liabilities of [Peter Pan] . . . regardless
of the date of the culpable acts alleged herein, and is liable
for the actionable and culpable conduct complained of herein. . .
. [Nissui] has assumed and/or is responsible for the liabilities
and/or the contingent liabilities of [Unisea] . . . regardless of
the date of the culpable acts alleged herein, and is liable for
the actionable and culpable conduct complained of herein."
110 793 P.2d 69 (Alaska 1990).
111 The importers also argue that "plaintiffs' alter ego
theory is invalid as a matter of law." However, the superior
court never found that the alter ego theory was invalid on its
merits; it only affirmed a discovery order that found that the
theory was inadequately pled. Thus, the superior court has not
had an opportunity to rule on the factual and legal issues of the
alter ego claim.
112 16 P.3d 735 (Alaska 2001).
113 See id. at 737.
114 See id.
115 See id. at 743.
116 See id.
117 Id. at 743.
118 Id.
119 Id.
120 Poster Exchange, Inc. v. National Screen Serv. Corp.,
517 F.2d 117, 127 (5th Cir. 1975) ("The function of the
limitations statute is simply to pull the blanket of peace over
acts and events which have themselves already slept for the
statutory period, thus barring the proof of wrongs embedded in
time-passed events.").
121 See Haakanson v. Wakefield Seafoods, Inc., 600 P.2d
1087, 1090 (Alaska 1979) ("Statutes of limitation serve . . . 'to
encourage promptness in the prosecution of actions and thus avoid
the injustice which may result from the prosecution of stale
claims. Statutes of limitations attempt to protect against the
difficulties caused by lost evidence, faded memories and
disappearing witnesses.'") (quoting Byrne v. Ogle, 488 P.2d 716,
718 (Alaska 1971)).
122 See Poster Exchange, 517 F.2d at 128 ("[A] newly
accruing claim for damages must be based on some injurious act
actually occurring during the limitations period, not merely the
abatable but unabated inertial consequences of some
pre-limitations action. . . . Poster here is obliged to
demonstrate some act of the defendants during the limitations
period.").
123 744 P.2d 191, 200 n.10 (Alaska 1989) (citations
omitted).
124 401 U.S. 321 (1971).
125 15 U.S.C. 15b provides in relevant part: "Any action
to enforce any cause of action under section 15, 15a, or 15c of
this title shall be forever barred unless commenced within four
years after the cause of action accrued."
There is evidence in the legislative history that the
Alaska Antitrust Act was adopted to be parallel with federal law.
An analysis of the original senate bill, appearing in the Senate
Journal, indicated explicitly that the state statutes were in
part modeled after federal statutes. See Senate Journal, March
31, 1975 at 585-588 ("The operative language of [what would
become AS 45.50.562] is identical to 1 of the Sherman Antitrust
Act. . . . [U]se of the same language in this bill [will] have
the advantage of bringing with it an extensive body of case law
to aid state courts in its interpretation.").
126 See Zenith, 401 U.S. at 333.
127 Id. at 327-28, 338.
128 Id. at 338 ("In the context of a continuing conspiracy
to violate the antitrust laws, such as the conspiracy in the
instant case, this has usually been understood to mean that each
time a plaintiff is injured by an act of the defendants a cause
of action accrues to him to recover the damages caused by that
act and that, as to those damages, the statute of limitations
runs from the commission of the act."); see also Klehr v. A.O.
Smith Corp., 521 U.S. 179, 189 (1997) ("[T]he commission of a
separate new overt act generally does not permit the plaintiff to
recover for the injury caused by old overt acts outside the
limitations period.").
129 Zenith, 401 U.S. at 338-39 ("[E]ach separate cause of
action that so accrues entitles a plaintiff to recover not only
those damages which he has suffered at the date of accrual, but
also those which he will suffer in the future from the particular
invasion.").
130 See 401 U.S. at 339 ("[I]f a plaintiff feels the
adverse impact of an antitrust conspiracy on a particular date, a
cause of action immediately accrues to him to recover all damages
incurred by that date and all provable damages that will flow in
the future from the acts of the conspirators on that date. To
recover those damages, he must sue within the requisite number of
years from the accrual of the action.").
131 392 U.S. 481 (1968).
132 Id. at 487-88.
133 Id. at 502 n.15.
134 Id. (citation omitted).
135 Id. at 502. See also Hennegan v. Pacifico Creative
Service, Inc., 787 F.2d 1299, 1300-01 (9th Cir. 1986) (holding
that plaintiffs could recover for damages from conspiratorial
acts during the statutory period even though the conspiracy was
formed prior to the statute of limitations).
136 Amici curiae States of Alaska, Hawaii, Minnesota,
Nevada, New Mexico, and West Virginia relied upon the holding of
the federal district court in Robert's Waikiki U-Drive, Inc. v.
Budget Rent-a-Car Systems, Inc. involving fly-drive agreements
that were allegedly in violation of a Hawaii antitrust statute,
with the applicable statute of limitations worded similarly to
AS 45.50.588. 491 F. Supp. 1199 (D. Haw. 1980). Hawaii Revised
Statute 480-24 (1976) provides: "Any action to enforce a cause
of action arising under this chapter shall be barred unless
commenced within four years after the cause of action accrues. .
. . For the purpose of this section, a cause of action for a
continuing violation is deemed to accrue at any time during the
period of the violation." The court held that the claim was not
barred by the statute of limitations because it was an alleged
continuing violation that began more than four years before the
plaintiff filed suit. 491 F. Supp. at 1229. The court further
held that damages for any acts that were part of that continuing
violation may be recoverable, even if the acts occurred more than
four years before the suit was filed. Id. The court based its
decision on the plain language of the Hawaii statute, without
reference to its legislative history or any other authorities.
See id. A similar result was reached in Anzai v. Chevron Corp.,
holding that "the language [of Hawaii Revised Statute 480-24]
plainly appears to permit recovery for the entire period of a
continuing conspiracy." 168 F. Supp. 2d 1180, 1183 (D. Haw.
2001). However, the district court also noted that "apparently
no state appellate court from either Hawaii or any of those
eleven other states [with similarly worded continuing violations
statutes] has yet issued a published opinion interpreting the key
language." Id. at 1184. The district court even quoted from the
superior court decision in the present case and noted that this
decision was on appeal to the Alaska Supreme Court. Id. With
due respect to the Hawaii District Court, we disagree with
Robert's and Anzai and believe that they conflict with the
continuing violations doctrine as generally understood and as
reflected in the case law that we have discussed in this opinion.
