[Temporary file until I have provide HTML coding] Jurisdictional Statement
The action is for damages and injunctive relief under the Robinson-Patman Act, 15 U.S.C.S. <185> 13(f). The basis for the District Court's subject-matter jurisdiction is 15 U.S.C.S. <185> 15, entitled "Suits by persons injured", which provides in relevant part that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found..." Plaintiff has alleged and some of the evidence shows that Defendants-Appellees (hereinafter referred to collectively as "defendants") have been knowingly obtaining a lower price per unit in its interstate purchases of parts from specific auto-parts manufacturers, which at the same time, known to the defendants, are selling the same parts to plaintiffs-appellants (hereinafter, collectively referred to as "plaintiffs") at higher per-unit prices, without applicable defense. Each of the defendants has been transacting business in the Eastern District of New York, which meets the requirements of 15 U.S.C.S. <185> 22, "District in which to sue corporation".
The appeal is from a final judgment entered by the Clerk (SPA-1) after a jury verdict in favor of the defendants (SPA-2). Appellate jurisdiction exists under 28 U.S.C.S. <185> 1291, entitled "Final decisions of district courts", which provides in relevant part: "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." The judgment disposed of all issues as to all parties (including the 22 named plaintiffs) in the corrected 3rd Amended Complaint (A-82). An earlier (2nd Amended Complaint - A-65) included 243 plaintiffs, but to make the case manageable the complaint was dismissed as to 221 of the plaintiffs and the corrected 3rd Amended Complaint was filed eliminating such 221 plaintiffs from the complaint. See stipulation and order (A-71). The stipulation and order (A-72) provides that the dismissed plaintiffs may reinstate their action by the service and filing of a Notice of Reinstatement within 6 months after completion of the trial in this action. As of today, no such reinstatement has been served or filed, although the dismissed plaintiffs do plan to file a timely Notice of Reinstatement. Upon these facts, it is believed that the judgment appealed from (SPA-1) is a final judgment. If not, it is stated, in the alternative, that there is jurisdiction under the collateral order doctrine for determination of the first issue presented for appeal, as an issue which needs to be decided, and unless it is decided in favor of the plaintiffs the dismissed action will not be maintainable and will have to be dismissed, as too burdensome on the plaintiffs therein to litigate. The District Court below required the plaintiffs to ship many thousands of boxes into the Eastern District of New York and to warehouse them in the Eastern District of New York through discovery and trial, at a cost of more than $400,000, running at $45,000 per month. The documents were not needed by defendants, which imposed this requirement on plaintiffs as a means of preventing them, through abusive discovery practices, from obtaining their day in court. Under Sell v. United States, 123 S. Ct. 2174, 2003 U.S. LEXIS 4594 (2003), the District Court's order requiring shipment and storage of the plaintiffs' invoices in the Eastern District of New York, even though the invoices were of no use to the defendants (A232-A235), will conclusively determine the disputed matters for the 221 other plaintiffs; it will resolve an important issue completely separate from the merits of the price-discrimination action; and such order is effectively unreviewable on appeal from a final judgment (assuming, as stated above, that the judgment being appealed from is not a final judgment).
The judgment (SPA-1) was dated and filed on January 28, 2003 and was entered on February 4, 2003. The Notice of Appeal (A-790) was dated and filed on February 26, 2003, within 30 days from the date of the judgment.
By reason of the foregoing, the appeal is from a final judgment that disposes of all parties' claims in the corrected 3rd Amended Complaint (A-82).
Statement of the Issues Presented for Review
The plaintiffs present the following issues for review:
1a. Whether the Court below erred in holding prior to trial that plaintiffs had to ship to, and warehouse in, the Eastern District of New York 3,500 boxes [130 pallets] of invoices having no use use to the defendants (at an initially estimated cost to plaintiffs of about $350,000) and that plaintiffs had to warehouse and make them available to defendants at a $45,000 monthly expense prior to and during the trial -- even after defendants failed to inspect them as represented to the Court when requesting and obtaining the order.
1b. Whether the defendants' litigation tactics were abusive requiring a forfeiture by defendants of their right to defend themselves as to liability in the action or a remand for appropriate relief).
2. Whether the Court below erred in ordering, 1 day before start of trial testimony, that plaintiffs were limited to 5 of their 32 listed witnesses (some of whom were already en route to the trial) and to 5 of their 25 selected auto parts, and that the trial was being bifurcated and limited to 5 days.
3. Whether the Court below erred in holding during the trial, without giving any reasons therefor, that proposed expert witness Wallace Kuralt was being excluded as an expert witness.
4. Whether the Court below erred in holding during the trial that exhibits were inadmissible solely because they were created after the 2/16/00 filing of the original complaint (A-1) or did not refer to 1 of the specific 5 auto parts (instead of the other 25 parts or product line for such parts).
Brief Statement of the Case
The action was commenced on February 16, 2000 as a Robinson-Patman Act, price discrimination action under Section 2(f), 15 U.S.C.S. <185> 13(f), against various major-retailer competitors of the plaintiffs, but not against any manufacturers. The plaintiffs are wholesalers or "wholesale distributor"s called "WD's", which buy auto parts directly from auto-parts manufacturers and resell them to auto-parts jobbers and/or to consumers, in competition with the defendants. Defendants moved to dismiss for failure to state a claim (A-39, #74), and the <185> 2(f) claim was upheld, but a <185> 2(c) claim (under the brokerage section) was dismissed (A-44, #112). Defendants' claim that the action was in reality a prohibited class action was rejected by the District Court. Discovery took place and on September 12, 2002 Judge Wexler was assigned the action (A-52). Judge Wexler held a conference on November 1, 2002 (A-53) at which time he required plaintiffs to ship their invoices (many thousands of boxes) into the Eastern District of New York, to store them at plaintiffs' expense to enable defendants (as defendants represented to the Court they planned to do) to send in a team of 100 persons every day for 60 straight days (starting on November 23, 2002) to analyze the inspect the documents, and for trial to commence on February 21, 2003 (A224-A226 and A227-A239, particularly A-232, <188>9). On the day before the start of trial (opening statements and first witness), Judge Wexler told plaintiffs that they were limited to only 5 of the 25 auto parts at issue; that only 5 plaintiffs could testify instead of the 22 plaintiffs indicated in the 1/17/03 Plaintiffs' Amended Witness List (A-300); that the trial should take place in 5 days; and that the trial would be bifurcated, with liability the first to be tried. The trial lasted five days and the jury found for the defendants (SPA-2). A final judgment on the verdict was entered by the Clerk (SPA-1).
Statement of Facts
The following is a statement of facts relevant to the issues submitted for review, with appropriate references to the record:
1. Warehouse Issue
The plaintiffs (but for the Coalition trade association) were selected from the 243 plaintiffs based on their volume of sales, being the largest of all plaintiffs, which also meant having the largest amount of transactional records. Plaintiffs offered the voluminous records in place (A-230, <188>6), for defendants to inspect, but defendants refused, and obtained an order from Judge Wexler on November 1, 2002 that plaintiffs ship all the invoices in to the Eastern District of New York (by 11/22/02 - A-232, <188>9), to a warehouse obtained and paid for by plaintiffs (A-230, <188>6), to enable the defendants to inspect the records in the warehouse at their expense, every day during a 60-day period (ending at the start of trial on 1/22/03), using a team of 100 persons daily (A-232, <188> 9). Plaintiffs had to arrange for the accommodations for such 100 persons (A-257, <188> 15; A-246, <188> 18). Plaintiffs had to accomplish this formidable task, including finding and leasing a large warehouse, within 3 weeks from November 1st (A-254, <188> 3; A-232, <188>9), which plaintiffs did, at great expense of money and counsel time, during the 3-week period ending 2 months before the start of trial (A-225) and see contemporaneous November 18, 2002 letter (A-191) from Carl E. Person to Magistrate Judge Boyle under section entitled "Additional Economic Warfare Tactics by Defendants - The Warehouse and 25,000 Boxes", in which Person states in part (at A-193):
Additional Economic Warfare Tactics by Defendants - the Warehouse and 25,000 Boxes
My office is performing quite well, I believe. I have obtained the warehouse required by Judge Wexler (on 11/1/02), and signed a lease on 11/12/02 (for 43,000 sq. feet in Brooklyn); I have installed 26 tables and 104 chairs as demanded by defendants, have ensured the adequacy of heat, electricity, and equipment; have brought in coffee, tea, decaf coffee and tea, cocoa, water, cups, filters, coffee machines, bottled water and have the 25,000 to 30,000 boxes of invoices (stacked on pallets) on their way to my Brooklyn warehouse on approximately 40-50 tractor trailers starting from 21 separate locations throughout the U.S. Also, I have brought in a motion picture gaffer (electrician) to ensure the adequacy of lighting for the team which is being formed by defendants to review the invoices. I have a full-time manager working at the warehouse, starting last week, which is equipped with fork lifts and other box handling equipment.
Defendants, it might be noted, have no ability to review these hard-copy invoices (25,000 times 7,000 pages per box, times 37 lines of transaction per page - 6.5 billion lines of transactions) and are making plaintiffs go through this work needlessly. Rather than just scan the invoices where they were located, which would have enabled defendants to read them electronically, they have demanded that plaintiffs produce them in the Eastern District of New York. And plaintiffs are complying.
Although defendants claim they are going to hire 100 paralegals or others each day (working from 8:00 a.m. to 8:00 p.m. 7 days per week for 60 days) to review the 25,000 to 30,000 boxes, it is clear to me that this is only a gesture, and that defendants are only going to be running out the (60-day) clock, trying to put on a show, but knowing that they cannot review 9.6 billion lines of invoice at the rate of 9,000 lines of invoice per paralegal per hour. They would need ten times as many persons. What defendants are trying to do is to place huge economic demands on plaintiffs with the hope that they will be diverted from proving what everyone knows is true, that defendants are rampant violators of the Robinson-Patman Act causing injury to competition, to plaintiffs, to consumers and to the economy. It is important to note that defendants have made no effort to use the existing data processing records of the plaintiffs which have such financial information, which would have been a less costly, more logical way of proving what defendants already know. The invoices will tell defendants that plaintiffs bought their inventory at the prices which they have already disclosed to defendants through plaintiffs' answers to defendants' interrogatories and through production of documents showing their buying group arrangements with various Product-Line Manufacturers. Plaintiffs rented warehouse space in Brooklyn, near the Battery Tunnel, at a cost of $45,000 per month, including a warehouse manager, forklift services, electricity, heat, coffee, water, and portable sanitation services (A224-A226; A228-A236).
Defendants never showed up as planned to inspect the documents (A-225; A229-A230; A232-A235). Instead, they moved for a default judgment against plaintiffs for alleged non-compliance (A210-A215), telling told the Court by affidavit of Mark Goldberg (A216-A223) including color photographs (A220-A223) that the warehouse premises were unfit for human beings to work in.
Plaintiffs spent an extraordinary amount of additional time during this critical pretrial period putting together the evidence to prove that defendants were totally wrong in their charges and never wanted to inspect the documents in the first place (A232-A235). See the declarations of attorney Carl E. Person (A227), paralegal Lu Ann Horstman (A-242) including color photographs (A-249), warehouse manager Kevin Richards (A-254), warehouse owner Sabato F. Catucci (A-260), warehouse personnel manager Brent M. Wilkins (A-263), warehouse invoice reviewer Grace Dimitri (A-266), warehouse invoice reviewer Trina Cantey (A-268), warehouse invoice reviewer Patricia Davidson (A-271), warehouse invoice reviewer Anthony Ponds (A-274), warehouse records reviewer Denise M. Walker (A-277), and Exhibit A to Horstman declaration, maintenance record from portable toilet installer A Royal Flush, Inc. (A240-A241) and statement from 6-year tenant in building, Kevin Sisson (A-280).
Defendants absorbed the time and available funds of plaintiffs through their warehouse caper (A-236, <188>17, A230-A235), and made a series of 3 sanctions motions against plaintiffs under Rules 26(g) and 37(a)(4) (11/11/02 A-180 at A-182; 12/5/02 A-210 at A-212; and 12/6/02 A-213 at A-215), culminating on December 6, 2003 with the sanctions motion alleged supported by the false and misleading Mark Goldberg declaration (A-216).
Plaintiffs responded with 10 declarations, an inspection report and a co-tenant statement (A224-A280). Although defendants represented to Judge Wexler on November 1, 2002 they would spend 12 hours per day for 60 days for 100 persons (or a total of 72,000 hours in the warehouse) reviewing the documents (A-232, <188>9), they only spent 42 hours (A-575, L 2-25), after December 12, 2002 (the date of the Person declaration, A-239) (at least 21 days after the warehouse was ready for them), and determined what plaintiffs had already pointed out and which they obviously knew from looking at invoices produced during earlier discovery and depositions (A-570, L 13-end and A-571, L 2), that the invoices did not state the per unit price on them, that other information was needed to determine the per-unit price of any auto part (A-574, L 1-end and A-575, L 1), the relevant testimony of defendants' expert witness, Laureen Ryan, who never went to the warehouse (A-572).
The cost to plaintiffs and plaintiffs' attorney of the warehouse caper, taking place during the period immediately prior to trial, was to divert plaintiffs' counsel from preparing for trial, and to cause expenditure of more than $400,000 for shipping, warehouse rental and operations, and reshipping, not including the time of counsel, which was formidable.
On the day before trial, when meeting with Judge Wexler, plaintiffs requested that they be given permission to disband the warehouse, to which defendants objected, and Judge Wexler ordered the warehouse continued through the trial. At the end of trial (A-62), starting after January 28, 2003, plaintiffs commenced shutting down the warehouse facility, including the shipping of the 3,500 boxes back to the plaintiffs, the donation of the 26 folding tables and 104 folding chairs to charity, return or disposal of unused water, coffee, other beverages and related equipment, the cleaning up of the warehouse, the closing down of utilities and termination of insurance, and the return of the warehouse to the owner thereof.
Defendants had no need for the documents, and in fact made no use of them, but at the same time would not permit plaintiffs to stop the $45,000 per month running expense when opposing plaintiffs' request on January 21, 2003 to close down the warehouse and return the boxes to the plaintiffs.
Defendants' litigation practice as to the invoices was very hardball and designed to deprive plaintiffs of their two major resources: (i) their attorney's valuable time immediately before trial, and a (ii) very large sum of money (in excess of $400,000) which could have been used by plaintiffs' in better preparing for and conducting the trial.
As pointed out in various documents (A224-A226, A229-A236), defendants should have either inspected the documents (for such 42 hour period) at the plaintiffs' own warehouses outside of the Eastern District of New York to determine if the defendants really intended to review the plaintiffs' invoices en masse, or they should have just ordered the invoices copied and imaged simultaneously, from the 21 different locations for such invoices before they were removed to the Eastern District of New York (A-225, A-234), at a cost substantially less than what they represented to the Court they planned to do with the documents: 72,000 hours of review in the EDNY warehouse, at an estimated cost of $30/hour (including supervisory time), or $2,160,000. Anyone contemplating the expenditure of $2,160,000 would want to take a look at the documents on site (i.e., send someone to review the documents where stored outside of the EDNY for a total of such 42 hours) to see if they wanted to actually spend $2,160,000 to inspect each of the documents. The same type of on-site inspection in the plaintiffs' local storage warehouses should have been made by defendants before obtaining an order requiring plaintiffs to spend more than $400,000 to ship the unnecessary invoices into the EDNY and devote the valuable time of plaintiffs' counsel to the defendants' warehouse caper, and defendants should not have opposed plaintiffs' request to Judge Wexler on January 21, 2003 to disband the warehouse at the start of trial.
Also, defendants could have used plaintiffs' data processing information, but chose not to do so, demanding only plaintiffs' boxes of invoices rather than plaintiffs' electronic data (A-193, last 3 paras.).
At the same time the warehouse caper was being perpetrated on plaintiffs (during the period from November 1, 2003 to and including the January 21, 2003 trial date), defendants were noticing multiple depositions (requiring more than one attorney to appear on the same day to represent the different plaintiffs - see A-186, A-189) and multiple motions for sanctions and other relief (11/11/02 A-180 at A-182; 12/5/02 A-210 at A-212; and 12/6/02 A-213 at A-215), to try to absorb the time of plaintiffs' counsel into diversionary activities and prevent plaintiffs from preparing for trial.
The defendants made a successful economic attack on plaintiffs and their counsel immediately after which plaintiffs lost the trial. The defendants' hardball litigation tactics should not be allowed, and plaintiffs should be granted a reversal of the liability verdict, and a judgment of liability by default as a sanction against defendants.
The additional 221 plaintiffs, whose dismissed case will be reactivated sometime during July, 2003 (by the servicing and filing of a Notice of Reinstatement), will be unable to litigate their claims if this warehouse issue is not resolved by this Court in favor of the plaintiffs. The tactic was very successful for defendants and there is every reason to believe that defendants will continue with such abusive tactics unless this Court decides the issue against the defendants.
2. Trial Restrictions with 1 Day's Notice: 5 Parts,
5 Plaintiffs, 5 Days; Bifurcation
On January 21, 2003, the day of jury selection, Judge Wexler met with counsel and imposed the following limitations on the trial: (i) only 5 of the 25 parts for which the parties had made trial preparation; (ii) only 5 plaintiffs to testify from among the 22 plaintiffs scheduled to testify; (iii) a bifurcated trial (because of the need to have 22 plaintiffs testify as to their respective damages); and (iv) trial to be concluded in 5 days.
Plaintiffs' Amended Witness List dated January 3, 2003 (A-300) shows that plaintiffs intended to put on 38 fact witnesses (including 22 plaintiffs) and 8 expert witnesses, and that they were coming in to trial from all parts of the United States to testify.
Plaintiffs' 2nd Amended Exhibit List dated January 17, 2003 (A-396) shows that plaintiffs had hundreds of exhibits which they planned to offer in evidence at trial. The limitations imposed by Judge Wexler made a shambles of plaintiffs' trial preparation. Exhibits showing that defendants admittedly obtained a better price with respect to a specified part (among the 25 parts) were excluded because the part mentioned was not one of the 5. Plaintiffs had to be chosen the night before the start of testimony (on January 22, 2003) according to how many of the 5 parts they had purchased, which made it difficult to choose plaintiffs from among the 22 plaintiffs, especially when some of the plaintiffs were already en route to the trial. Most of the plaintiffs did not purchase every one of the 25 parts, and it was difficult to select plaintiffs who had purchased 4 or 5 of the same 5 parts. The 5-day limitation precluded plaintiffs from putting on most of their case and resulted in a less than adequate presentation of the facts, opening statement and summation to the jury.
The plaintiffs believed at the start of January 21st that the trial was going to take place as they had prepared for trial, but on such date, one day before opening up to the jury and putting on the first witness, the whole nature of the trial was changed by Judge Wexler's trial restrictions, which prevented plaintiffs from having their day in court. The relevant part of the trial transcript is at A-481, A-501, A-570 and A-592.
3. Exclusion of Plaintiffs' Expert Witness
Wallace H. Kuralt without Stating Any Reasons
Wallace Kuralt reviewed all of the confidential and highly confidential documents produced by AutoZone (A-525) to determine what the financial relationships were between AutoZone and its auto-parts suppliers (A-525). The methodology was to review each document to determine what benefits were being given by auto-parts manufacturers to AutoZone, and what costs AutoZone was incurring, if any, in the process (A-525, A-527).
Mr. Kuralt had 45 years of experience (A-519) in establishing a retail chain of book stores, purchasing from manufacturers (i.e., publishers) as well as wholesalers, using data processing extensively in his business, receiving shipments directly at the specific retail stores as well as using a warehouse to receive books for reshipment by him to his individual stores, dealing with the same issues of price discrimination favoring major retailer competitors, and ultimately losing the competition to the major retailers. A519-A529 and the expert report (A-696) Mr. Kuralt was singularly qualified to be an expert in this action, and had prepared an extensive report detailing what he had found (A-696).
Judge Wexler, without comment, found him unqualified as an expert. (A519-A529 and A-539). The testimony which Mr. Kuralt would have provided at trial, had he been permitted to testify as an expert, easily could have convinced the jury to deliver a plaintiffs' verdict, and the loss of Mr. Kuralt's testimony was very damaging to plaintiffs' case. See his expert report, at A-696).
4. Exclusion of Exhibits: Beyond Date of Filing of Original Complaint;
and Not Specifically Referring to Any of the 5 Designated Parts
Judge Wexler held (A-488, A531-A538, A540-A541, A543-A558, A559-A560) that exhibits dated subsequent to the filing of the original complaint were not relevant (at AutoZone's request) and were to be excluded, when defendants sought to exclude such exhibits; and that any exhibits not referring to any of the 5 parts were to be excluded if the defendants objected to such documents. [Note: Defendant Advance did not object to exhibits dated after the filing of the original complaint, and no appeal is being pursued against defendant Advance as to such issue.]
The effect was devastating because much of the evidence developed by plaintiff on defendants' favored status did not specifically refer to any of the 5 parts by product number (see excluded exhibits Exhibits 226 and 229, A672-A675, which were dated before the filing of the original complaint).
Some of the exhibits not admitted into evidence for the jury (but only for equitable relief) as a result of Judge Wexler's decisions during trial (and reproduced in the Joint Appendix) are as to the AutoZone Defendants: 175 (A-615), 191 (A-640), 196 (A-653), 197 (A-654), 198 (A-655), 203 (A-659), 204 (A-660), 205 (A-663), 207 (A-664), 208 (A-665), 210 (A-667), 211 (A-669), 226 (A-672), 271 (A-676), 280 (A-685), and 281 (A-687). A description of each of these jury-excluded exhibits is set forth in the Plaintiffs' 2nd Amended Exhibit List dated January 17, 2003 (A-396) and were considered sufficiently important by the plaintiffs to go back to Judge Wexler for reconsideration of his prior rulings, without success.
Also, pursuant to Judge Wexler's 1/21/03 order, announcing his exhibit limitation (i.e., that exhibits must refer to 1 of the 5 auto parts and cannot be dated after the filing of the original complaint), plaintiffs agreed to withdraw the following exhibits listed in the Plaintiffs' 2nd Amended Exhibit List dated January 27, 2003 (A-396): 170, 219, 223, 224, 228, 229, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 242, 243, 244, 246, 247, 249, 250, 253, 268, 270, 279, 283, 284, 285, 290, 298, 299, 300 and 301. [These exhibits are not reproduced in the Joint Appendix.]
The jury-excluded exhibits listed on page 15 (starting with Exhibit 175) show that AutoZone acquired competitors and then calculated the dollar amount for which its competitors were over-paying for inventory (in comparison to AutoZone) and then charged the manufacturers for such overcharges and obtained payment for itself as to the discriminatory overcharges which probably forced the competitor to sell out to AutoZone. Other excluded documents contain admissions from the manufacturer that AutoZone is getting the best price, such as A-654 which states in part: "We compared your overall pricing to our other customers and determined your pricing to be significantly below all others, as it should be. We did find a few individual items above others which when adjusted down brought your overall pricing down by just 1%." (A-654). A-655 entitled "AutoZone Pricing Strategy" was excluded as a document dated after the filing of the original complaint (A-655, 7/3/01). This is an important document because it shows how AutoZone is on its way toward getting parts without paying for them, in what AutoZone calls "Tactics for achieving 100% payables" (A-656). A-203 dated 7/8/02 states that vendors are asking about AutoZone's gathering allowance because AutoZone has had no gatherings. A-660 dated 3/14/01 from Cardone, which states that "you (AZ) are the lowest retail cost in most sku's and markets. I've also taken this new pricing against the lowest retail pricing to ensure you'll have plenty of margin (hopefully more than you are getting now"). Also (A-662) Cardone is "working on a KILLER QUOTE on Power Steering and Racks for you. Since we are going 'deeper than ever before' we are really taking a careful look at each of the top moving sku's and seeing how far we can go." All of the excluded documents were of great importance to the plaintiffs' case, but were excluded mainly because of date, and in some instances (where date was not a problem) because they did not refer to one of the 5 parts.
The excluded documents could have provided plaintiffs with more evidence to encourage the jury to find for the plaintiffs.
Summary of the Argument
1. Warehouse Issue (summary argument)
Plaintiffs argue that defendants used abusive litigation tactics by obtaining an order from Judge Wexler requiring plaintiffs to ship thousands of boxes of useless invoices into the Eastern District of New York, to warehouse them at a cost to plaintiff of more than $400,000, and to saddle plaintiffs' counsel with additional time burdens at a critical time in the case (2-1/2 months away from trial). Defendants deliberately failed to determine whether they could use the documents before requiring their shipment to the Eastern District of New York, and refused to permit plaintiff to disband the costly warehouse after defendants stated that the documents were of no value to them. This is an abusive litigation practice which requires an order vacating the jury verdict and ordering liability of defendants by default as a sanction for their conduct. Also, this warehouse issue is going to preclude the other 221 plaintiffs from having their day in court if it is not resolved in plaintiffs' favor by this Court. Defendants can be expected to use the same abusive litigation strategy if it is not stopped by this Court.
2. Trial Restrictions with 1 Day's Notice: 5 Parts,
5 Plaintiffs, 5 Days; Bifurcation (summary argument)
Requiring plaintiffs on the day prior to the calling of the first witness to reorganize their case to conform to the requirements of 5 parts (instead of the 25), 5 plaintiff witnesses (instead of the scheduled 22 plaintiff witnesses), and 5 trial days instead of plaintiffs' envisioned 6 weeks, and a bifurcated trial as to liability (instead of a single trial) was a denial of due process, and an abuse of discretion. These trial limitations imposed the day before the start of trial testimony resulted in last-minute changes (such as selecting witnesses on the basis of whether they were already in flight, and how many of the 5 same parts the witness represented, with all selected witnesses having to have purchased as many as possible of the same 5 parts; and eliminating many trial exhibits which showed price discrimination as to the other 20 parts, but did not refer specifically to the 5 parts, but entirely relevant to show favored pricing to defendants within the same product lines being purchased by the plaintiffs). Because of the limitation to 5 plaintiff witnesses, the trial was bifurcated to enable all 22 plaintiffs to testify at any trial of damages. The 5 day limitation meant that plaintiffs could not put on the case that they had prepared to put on, consisting of 38 fact witnesses, 8 expert witnesses, and about 6 weeks of trial, and had to hastily, overnight, redo their whole trial, with substantial prejudice to the plaintiffs, including the loss of relevant evidence to show the full extent of favored pricing being extended to defendants within the various product lines of auto parts.
3. Exclusion of Plaintiffs' Expert Witness Wallace H.
Kuralt without Stating Any Reasons (summary argument)
Plaintiffs' proposed expert, Wallace Kuralt, has one of the best backgrounds to understand price discrimination by manufacturers in favor of major retailers. He spent 45 years of his life in building a retail chain of bookstores and then lost his chain to the major retail chains (Barnes & Noble and Borders). Mr. Kuralt read all of the documents produced by AutoZone from the standpoint of determining what benefits if any were being provided by AutoZone to the manufacturer, and what costs if any were AutoZone incurring for the manufacturers. He set forth his findings in his expert report, A-696 (Exhibit 673).
Judge Wexler, during trial, excluded Mr. Kuralt as a witness without any explanation whatsoever. A-539.
The exclusion of Wallace Kuralt as an expert was contrary to law, and was an abuse of discretion.
4. Exclusion of Exhibits: Beyond Date of Filing of Original
Complaint; and Not Specifically Referring to Any of the 5
Designated Parts (summary argument)
Judge Wexler, at the request of defendants AutoZone and Advance, excluded plaintiffs' exhibits which did not specifically refer to any of the 5 parts. Plaintiffs' proposed exhibits (see Plaintiffs' 2nd Amended Exhibit List dated January 17, 2003 - A-396) had many exhibits which did not refer to any of the 5 parts, some of which were unique in that they admitted that AutoZone was getting favored pricing. These documents were excluded by reason of Judge Wexler's ruling. The ruling effectively destroyed plaintiffs' evidence of price discrimination by artificially limiting the discrimination to specific parts when the price discrimination itself, as practiced, was not granted by part. Instead, the discrimination came in through a variety of ways and could only be understood when all aspects were accounted for, added up and allocated per part. For example, defendants were permitted not to pay their bills in full (with the amount unpaid being called "deductions") and defendants were given new-store allowances of so much per store. Thus, any discrimination in price was relevant, even if it did not specifically refer to one of the 5 designated parts.
Also, to exclude exhibits because they are dated after the date of the filing of the original complaint (on February 16, 2000 - A-1) was an abuse of discretion. Plaintiffs sought damages on a continuing basis, and were also seeking injunctive relief (A112-A113). Also, plaintiffs filed various amended complaints into 2002: 7/18/00 A-38; 11/13/01 A-44; 6/10/02 A-49; and 11/8/02 A-53). Thus, exhibits dated after the filing of the complaint were relevant, and the exclusion of such exhibits was an abuse of discretion. In <188><188> 6 (A-84), 85 (A-111) and 86 (A-112) of the corrected 3rd Amended Complaint (A-82), plaintiffs allege that they are entitled to injunctive relief, because the activities of defendants are continuing. During discovery, the AutoZone defendants produced without question or controversy the proposed AutoZone exhibits dated after the date of the filing of the original complaint (on February 16, 2000 - A-1). It should be noted that the corrected 3rd Amended Complaint was served on July 23, 2002 (A-114, cf.. A-53 #171), more than 2 years after the original complaint was filed. In spite of these facts, Judge Wexler held that plaintiffs (AutoZone) exhibits could not be dated after the filing of the original complaint, on February 16, 2000. Plaintiffs argue that this is an abuse of discretion and prejudicial, reversible error.
I. The Court Erred in Requiring Plaintiffs to Transport
and Store Their Invoices in the EDNY through Trial
A. Standard of Review - Abuse of Discretion
This is a factual issue concerning an enormous discovery burden placed on plaintiffs, amounting to more than $400,000, running at a monthly rate of $45,000, and wholly wasted because defendants never intended to use the discovery they required plaintiffs to produce and to continue during trial. The standard for review is abuse of discretion.
American Savings Bank, FSB v. UBS PaineWebber, Inc., 2003 U.S. App. LEXIS 9806, *9 (2d Cir. 2003) held that "A district court abuses its discretion when '(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision -- though not necessarily the product of a legal error or a clearly erroneous factual finding -- cannot be located within the range of permissible decisions.'" Also, see Mercator Corp. v. United States (In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002), 318 F.3d 379, *; 2002 U.S. App. LEXIS 27853, **6-7; 60 Fed. R. Evid. Serv. (Callaghan) 594; 54 Fed. R. Serv. 3d (Callaghan) 824 (2d Cir. 2003) held that "A district court abuses its discretion when "(1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision - though not necessarily the product of a legal error or a clearly erroneous factual finding - cannot be located within the range of permissible decisions." Mercator at p. 383 cited Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001).
In Bronx Household of Faith v. Board of Education, 2003 U.S. App. LEXIS 11379, *12 (2d Cir. 2003), the Court of Appeals states that the abuse of discretion standard is met (as to injunctive relief issues, at least) when the district court bases its ruling on an incorrect legal standard or on a clearly erroneous assessment of the fact.
By the time of trial, the defendants had already concluded that the warehoused invoices were of no value to them because they did not provide the price at which the plaintiffs were buying their auto parts. Also, it is clear that defendants never intended to inspect the documents when requesting and obtaining an order from Judge Wexler on November 1, 2001 requiring plaintiffs to transport and store 35,000 boxes of plaintiffs' invoices to the Eastern District of New York at plaintiffs' expense. In spite of this, the District Judge held one day before the start of trial (on 1/21/03), at the urging of the defendants, that plaintiffs had to maintain their warehouse of invoices in the Eastern District of New York during the trial itself. The record is clear that the warehouse caper was just an abusive litigation technique by the defendants and that by the time of trial there was no valid reason for anyone to require that plaintiffs continue to pay $45,000 per month to store worthless invoices. When the facts became clear that the defendants never intended to inspect the documents as represented to the Court, the Court's orders requiring continued warehouse storage at plaintiffs' expense became an abuse of discretion.
The failure to permit plaintiffs to close the warehouse and return the invoices to the respective plaintiffs was an abuse of discretion, and an abuse which amounted to a violation of the legal standards set forth in the discovery rules, including the limitations set forth in Fed. R. Civ. P. Rule 26(b)(2), such as "(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive" and "(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Also, see Rule 37, Fed.R.Civ.P., entitled "Failure to Make Disclosure or Cooperate in Discovery; Sanctions", imposed an obligation on defendants to do its part of the warehouse discovery program ordered by Judge Wexler. Defendants' failure to perform as represented by it (i.e., 72,000 hours of invoice review by 100 persons working 12 hours per day, 7 days per week, for 60 straight days) is a violation of Rule 37, and therefore a violation of a legal standard for purposes of determining that the District Court erred (abuse-of discretion standard) when failing to order a termination of the warehouse invoice storage at plaintiffs' request.
C. Plaintiffs' Request for Sanctions
By reason of the ruling of the Court requiring plaintiffs to transport and store their invoices in the Eastern District of New York at plaintiffs' expense, there was no opportunity to ask for sanctions. Now that the abuse has been determined, this Court should be able to remedy the abuse by imposing appropriate sanctions under Rule 37(a), Fed. R. Civ. P., or reversing the judgment and remanding to the trial court for appropriate sanctions. The sanction requested by plaintiffs is the entry of a default judgment in favor of the plaintiffs on the issue of liability, either by this Court or upon remand by the District Court. The sanction requested is to enter a default judgment in favor of the plaintiffs on the issue of liability.
II. The Court Erred in Requiring Major Reorganization of the Antitrust
Trial Starting the Day Prior to Opening Statements and First Witness
A. Standard of Review - De Novo
There is a legal issue involved of procedural due process, which means that the decision of the District Court below is to be reviewed de novo. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431, 121 S. Ct. 1678, 149 L. Ed. 2d 674, 2001 U.S. LEXIS 3520 (2001); and United States v. Millan, 4 F.3d 1038, 1043; 1993 U.S. App. LEXIS 22435 (2d Cir. 1993) (review fact findings for clear error and the "ultimate resolution of the constitutional due process issue de novo"). There was no factual finding involved. The relevant documents in making the decision apparently were, or should have been, the 5/16/02 Stipulation (A-71) and pleadings (A82-A179), the witness lists, including A-300, and the exhibit lists, including A-396.
One day before the opening statements and first witness, the District Judge advised the parties that the plaintiffs were limited to 5 plaintiff witnesses, 5 parts (instead of the 25 at issue for trial preparation purposes - see Plaintiffs' Amended Exhibit List dated January 4, 2003 -A316 and Plaintiffs' 2nd Amended Exhibit List dated January 17, 2003 - A396), bifurcated trial (because of the need to have the 22 plaintiffs testify on their respective damages if plaintiffs' prevailed at the bifurcated trial for liability; and 5 days in which to try the case.
The effect upon plaintiffs and their trial preparation (see the Plaintiffs' 2nd Amended Exhibit List dated January 17, 2003 (A-396) and the Plaintiffs' Amended Witness List dated January 3, 2003 (A-300).
Many of the exhibits became "irrelevant" when the Judge ruled during the trial that any exhibits not referring to one of the 5 parts was irrelevant.
Plaintiffs had only a few hours to try to juggle witnesses en route to the trial with the new requirements that the plaintiff testifying have purchased the same 5 parts as the other 4 plaintiffs to be selected during those few hours before the start of trial the next morning.
The bifurcation which resulted encouraged the jury to hold for the defendants, it is quite possible, because they would not have to come back and sit through a trial for damages. Granted, this is speculation, but it is a realistic factor resulting from the bifurcation.
Plaintiffs were prepared for a 6-week trial, and learned that they had to tailor their trial overnight to a 1-week trial.
This lack of reasonable notice is a classic instance of a denial of due process, and requires reversal of the verdict and judgment. "Due process prohibits trial by surprise.", United States v. Chenaur, 552 F.2d 294, 302, 1977 U.S. App. LEXIS 13803, **18 (9th Cir. 1977). "Three days' notice ordinarily is not sufficient time to prepare for most hearings and was woefully inadequate in this case, where the charges involve serious violations of racing rules and regulations." Galvin v. New York Racing Ass'n, 70 F. Supp. 2d 163, 193, 1998 U.S. Dist. LEXIS 22611 (E.D.N.Y. 1998). Also, Galvin cites Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1192, 14 L. Ed. 2d 62 (1965) which states that "A fundamental requirement of due process is 'the opportunity to be heard.' * * * It is an opportunity which must be granted at a meaningful time and in a meaningful manner." Plaintiffs submit that less than a single day's notice to reorganize an antitrust trial of the type required by Judge Wexler is an obvious denial of due process.
III. The Court Erred in Excluding Expert Witness Kuralt, and in
Failing to Disclose Why the Expert Witness Was Excluded
A. Standard of Review - Abuse of Discretion
The standard for review as to each of the issues presented is the abuse-of-discretion standard. General Electric Co. v. Joiner, 522 U.S. 136, 138-139, 139 L. Ed. 2d 508, 514, 118 S. Ct. 512, 515, 1997 U.S. LEXIS 7503 (1997), cited by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238, 1999 U.S. LEXIS 2189 (1999) (decisions to exclude or include expert testimony are reviewed by the abuse-of-discretion standard). Decisions on the admissibility of evidence generally are reviewed under the abuse-of-discretion standard or clearly erroneous standard. MCA, Inc. v. Wilson, 677 F.2d 180, 183, 1981 U.S. App. LEXIS 10906, **8 (2d Cir. 1981) (clearly erroneous standard of review is appropriate for fact issues). Also, see discussion under heading "A. Standard of Review - Abuse of Discretion" under Point I above.
In Joiner, at pp. 140 and 145, supra, the Supreme Court described the reasons of the District Court for excluding the offered expert testimony. Also, most importantly, the Supreme Court determined that the District Court had not been complete in its analysis, and "accordingly reverse[d] the judgment of the Court of Appeals and remand[ed] this case for proceedings consistent with this opinion", Joiner at p. 147. The gatekeeping role of the District Court (Joiner, p. 520, concur. op.) is not carried out if the District Court offers no explanation of why it closed the gate. The review by higher courts is effectively prevented under the abuse-of-discretion standard if the District Court gives no reasons for exclusion.
Plaintiffs argue that the failure to state why an expert witness is not qualified is the violation of a legal standard requiring that the basis for witness exclusion be identified. Accordingly, there is an abuse of discretion by failure to conform to a legal standard (an error of law) as well as amounting to a clearly erroneous factual finding, or a decision which cannot be located within the range of permissible decisions.
Wallace Kuralt reviewed all of AutoZone's documents and based his report on those reviewed documents, stating where in his opinion the documents showed price discrimination favoring AutoZone. His report was detailed and his testimony would have been most useful for plaintiffs to offset the testimony of defendants and their experts. (A519-A529)
However, Judge Wexler excluded Kuralt as an expert witness without providing any reason whatsoever (A-539). This was an abuse of discretion by Judge Wexler. Furthermore, it was an abuse of discretion by the Court not to state why it excluded the expert. Failure to state the basis for exclusion provides no insight into whether the Court acted abusively or not, and is itself an abuse of discretion. See Obianuju Ezeagwuna v. Ashcroft, 301 F.3d 116, 126, 2002 U.S. App. LEXIS 15278, ** 22 (3rd Cir. 2002) ("[the attorney general] abuses his discretion if he does not specify the reasons for refusing to exercise his denial * * * Furthermore, the stated reasons must not be 'arbitrary, irrational, or contrary to law.'").
Because of the importance, time involved, cost and necessity of using expert testimony in antitrust cases, it should be an abuse of discretion for a judge not to state why he is excluding an offered expert witness. Two-days' notice to convert a hearing from one involving a temporary restraining order to one involving a preliminary injunction "would be stretching the requirements of due process" Bailey v. Transportation Communication Employees Union, 45 F.R.D. 444, 445, 1968 U.S. Dist. LEXIS 8754 (N.D. Miss., W.Div. 1968). Three-day notice did not satisfy the due process requirements, and the case was remanded for a hearing on notice "that satisfied the requirements of fairness and was adequate to allow appellant reasonable time for preparation." South Willow Creek Farm v. South Willow Creek, L.L.C., 1999 Bankr. LEXIS 1579, *7 (Bkcy App. Panel for 10th Cir. 1999), citing the landmark case on adequacy of notice and due process, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
In fee awards cases, "it is so essential that district courts articulate specific reasons for fee awards to give us an adequate basis for review. Dissenting opinion in Robinson v. City of Edmond, 160 F.3d 1275, 1289, 1998 U.S. App. LEXIS 28170, ** 45 (10th Cir. 1998), citing Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983).
IV. The Court Erred in Holding During Trial that Exhibits˙Dated after
the Original Filing Date of the Complaint Were Inadmissible and
Exhibits Not Referring to One of the Five Parts Were Inadmissible
A. Standard of Review - Abuse of Discretion
See discussion under heading "A. Standard of Review" under Point I above. Each of the District Court's decisions "rests on an error of law", and is therefore an abuse of discretion.
B. Argument - Error to Set Date for Exhibits at Filing of Original Complaint
The Court erred in holding, during the trial, that any exhibits dated after the filing date of the original complaint (2/16/00) were not admissible to the jury (but were admissible before the Judge as to the injunctive relief sought).
The Court held so in spite of the various amended complaints, including the corrected 3rd Amended Complaint served in July, 2002 (A-82, at A-114), entered on 11/8/02 (A-53).
Plaintiffs in their antitrust action sought injunctive relief for continuing violations of the Robinson-Patman Act, as well as damages for the period subsequent to the filing of the initial complaint. See the following paragraphs of the corrected 3rd Amended Complaint dated July 23, 2002: <188> 6 (A-84); <188> 9 (A-85); <188> 10, fn 2 (A-85), <188> 85 (A111-A112), <188> 86 (A-112), and the prayer for relief (A112-A113). Earlier amended complaints were filed on 7/18/00 A-38; 11/13/01 A-44; 6/10/02 A-49; and 11/8/02 A-53. To exclude evidence because it came into being subsequent to the filing date of the initial complaint, if upheld as a matter of law, would require plaintiffs (and sometimes defendants) to continually file updated supplemental pleadings to ensure they were not prevented from proving their case by such rule, even though there had been a string of amended pleadings providing the same allegations. Discovery took place without questions for several years to provide plaintiffs with the documents which came into existence after the filing of the original complaint, and this would seem to be a waiver by the producing parties of any rule prohibiting evidence created after the filing of the original complaint.
These proposed exhibits were provided by defendants, marked as exhibits, listed in the Plaintiffs' Exhibit Lists, and should be allowed in evidence in absence of some other, valid objection.
William Inglis & Sons Baking Co. v. ITT Continental Baking Company, Inc., 668 F.2d 1014, 1057-58; 1981 U.S. App. LEXIS 18689, **109; 1981-2 Trade Cas. (CCH) P64,229; 1982-1 Trade Cas. (CCH) P64,545 (9th Cir. 1982) held that an amended complaint should be considered a supplemental complaint for the purposes of allowing evidence in relating to the period after the filing of the original complaint, and stated that "The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed. * * * Where, however, the original pleading gave notice that the alleged wrongful conduct was of a continuing nature, supplemental pleadings addressed to the same conduct should not encounter statute of limitations questions.
* * *
n74 Professors Wright and Miller have explained that if the original pleading gave defendant notice that the conduct, transaction, or occurrence is of a continuing nature, he should be prepared to defend against all claims arising out of it, whether they arose before or after the original complaint was filed. There is little basis to distinguish an amended and a supplemental pleading for purposes of relation back if defendant had notice of the subject matter of the dispute and was not prejudiced in preparing his defense. Under these circumstances, the policy against stale claims becomes subsidiary to the policy expressed throughout the rules in favor of allowing a party to set forth all his grievances against another party in one action and resolving them on their merits. 6 C. Wright & A. Miller, supra, <185> 1508, at 556.
We are satisfied that Inglis' original pleadings provided Continental adequate notice of the subject matter of the action. They alleged a continuing course of conduct and contained prayers for injunctive relief as well as for damages. Indeed, Continental's continuing course of conduct after commencement of the action was the subject of a preliminary injunction hearing several years after the original complaint was filed. * * * The supplemental complaint merely restated the allegations of the initial pleadings and further alleged only that the claimed violations had continued. Of course, the complaint was based on new events, but these events are a continuation of the old cause of action. * * *
668 F.2d 1057-1058
A. C. Becken Co. v. Gemex Corp., 199 F. Supp. 544, 553-554; 1961 U.S. Dist. LEXIS 5899, **18-19; 1961 Trade Cas. (CCH) P70,118 (N.D.Ill., East. Div. 1961) (damages period approved for years beyond date of filing of original complaint; and damages allowed for period up to filing of subsequent supplemental complaint).
C. Argument - Error to Require Exhibits Showing
Favored Pricing to Refer to 1 of the 5 Parts
Also, the exclusion of exhibits which did not include one of the 5 parts was an abuse of discretion, particularly because of the lack of reasonable notice to the plaintiffs that their prepared case had to be reorganized in several hours. The lack of reasonable notice was a violation of a legal standard and therefore an abuse of discretion. Bronx Household of Faith v. Board of Education, 2003 U.S. App. LEXIS 11379, *12 (2d Cir. 2003).
Most importantly, as alleged in the corrected 3rd Amended Complaint (A-82) and all prior complaints, price discrimination for any one part has to take into account whatever favored arrangements of value existed between the manufacturer and the defendant competitor. By excluding exhibits which did not name one of the 5 specific parts, the Court was excluding evidence of discriminatory payments or other arrangements which needed to be taken into account when determining whether a manufacturers' dealings with the defendant were discriminatory or not. The actual per-unit price of a specific part was never found on any invoice as to any of the parties. Instead, to determine the price of a specific part there had to be a review of all transactions between manufacturer and the defendant, with the total amount of benefits added up and allocated to purchases to provide a calculated purchase price per item. It was easier to calculate the per-unit price for each of the plaintiffs because they did not have such an array of price-reducing benefits from the manufacturers.
It was an abuse of discretion for the Court to deny admissibility to documents which disclosed favored treatment as to transactions involving other than one of the 5 parts. The plaintiffs and defendants were purchasing product lines from the same manufacturers, and the totality of favored treatment in the purchase of such product line, as to any of the parts in such line, is relevant, whether or not one of the 5 parts is involved in the discriminatory payment. In predatory-pricing analysis under the Robinson-Patman Act and Sherman Act, the entire product line must be included in the analysis. Bayou Bottling, Inc. v. Dr. Pepper Co., 725 F.2d 300, 305 (5th Cir.), cert. denied, 469 U.S. 833, 105 S. Ct. 123, 83 L. Ed. 2d 65 (1984). Also, as to predatory pricing in a product line see Janich Bros., Inc. v. American Distilling Co., 570 F.2d 848, 1977 U.S. App. LEXIS 5646, 1978-1 Trade Cas. (CCH) P61,826 (9th Cir. 1977). The rationale for the predatory-pricing cases is that there has to be a review of dealings in an entire product line to determine if there has been predatory pricing. There is no reason why the same is not true for other types of price discrimination. Plaintiffs have alleged that defendants were purchasing specified product lines (A-94) from specified manufacturers (A-94) at prices about 40% lower (<188> 3, A83-A84) than the price being paid for the same lines by plaintiffs (A-84). Also, plaintiffs listed 30 different ways in which the defendants obtained their favored pricing from the manufacturers (<188> 69A-69DD: A102-A-104), Many of these methods did not involve any specific auto parts, such as gathering allowances (A-102), new warehouse allowances (A-102), slotting allowances (A-103), and deductions (A-103).
The District Court's exclusion of discriminatory payments relating to a product line because they did not mention one of the 5 specific parts prevented plaintiffs from showing the extent of price discrimination within the product line, and then calculating the effect as to the specific 5 parts at issue at the trial, and such ruling prevented plaintiffs from showing instances to the jury where the manufacturers admitted that their prices to AutoZone were more favorable than to any competitors: Ex. 197 dated 3/8/01 (A-654); Ex. 204 dated 3/14/01 (A-660); Ex. 205 dated 5/14/01 (A-663); Ex. 207 dated 10/5/00 (A-664); Ex. 226 dated 2/26/99 (A-672); Ex. 229 dated 4/21/99 (A-675); Ex. 280 dated 12/4/01 (A-685); and Ex. 281 dated 6/20/02 (A-687). Each of the excluded exhibits other than exhibits 226 and 229 are dated after the filing of the original complaint, on February 16, 2000. The other 2 exhibit (226 and 229) did not mention any of the 5 parts. All of these excluded exhibits proved that AutoZone was obtaining discriminatory pricing from the manufacturers in a variety of different ways and were very important to plaintiffs' case. The exhibits need to be read and cannot be adequately summarized (see Exhibit 175 at A-615, for example, entitled "Process Improvement Department Vendor Allowances Audit Report April 2002", which provides an extensive look at AutoZone's present and future vendor allowance programs).
For all the foregoing reasons, plaintiffs seek to have the verdict and judgment reversed, and a new trial, as to all issues. In addition, as to the warehouse issue, plaintiffs seek alternatively to have the verdict and judgment reversed, a default entered as to liability against the defendants (by this Court or by the District Court below), and a trial as to plaintiffs' damages.
Dated: New York, New York
July 9, 2003 __________________________________
Carl E. Person (CP 7637)
Attorney for Plaintiffs-Appellants
325 W. 45th Street - Suite 201
New York, NY˙10036-3803
Tel: (212) 307-4444
CERTIFICATE OF COMPLIANCE
I, Carl E. Person, attorney for Plaintiffs-Appellants, hereby certify that this brief is in compliance with Federal Rule of Appellate Procedure 32(a)(7). This brief is in 14-point Times New Roman font. The brief contains under 14,000 words counted by the Word '97 word-processing system. The specific word count is 9,564.
Dated: New York, New York
July 9, 2003
Carl E. Person (CP 7637)
Attorney for Plaintiffs-Appellants
325 W. 45th Street - Suite 201
New York, NY˙10036-3803
Tel: (212) 307-4444