IN RE FLAT GLASS ANTITRUST LITIGATION MDL No. 1200 BRIAN S. NELSON, d/b/a Jamestown… v. -- 1 of 38 -- 2 PILKINGTON PLC

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-2920
IN RE FLAT GLASS
ANTITRUST LITIGATION
(MDL No. 1200)
BRIAN S. NELSON, d/b/a Jamestown
Glass Service; MEL’S AUTO GLASS,
INC.; A. WAXMAN & CO., on behalf of
itself, and all others similarly situated;
DESIGNER WINDOWS, INC., on behalf
of itself and all others similarly situated;
MOSES MOORE ALL GLASS
ASPECTS, INC., on behalf of itself and
all others similarly situated; AAA GLASS,
INC., on behalf of itself and all others
similarly situated, d/b/a The Glass Doctor;
THE LURIE COM PANIES, INC.; VSTB
ENTERPRISES, INC., d/b/a Perfecto Auto
Glass & Upholstery and its successors;
PORT CITY GLASS & MIRROR, INC.,
on its own behalf and on behalf of all
others similarly situated; JOHN HEALY,
JR.; COUNTY AUTO GLASS, INC., on
behalf of themselves and all others
s im il a r l y s it ua te d; G ER A R D J.
CLABBERS, on behalf of himself and all
others similarly situated; KIRSCHNER
CORPORATION, INC., t/a Berwyn Glass
Company, on behalf of itself and all others
similarly situated; HARTUNG AGALITE
GLASS CO., d/b/a Hartung Glass
Industries; ALL STAR GLASS, INC., on
behalf of itself and all others similarly
situated; SUPERIOR WINDSHIELD
INSTALLATION, INC., on behalf of
itself and all others similarly situated;
JOVI, INC., on behalf of itself and all
others similarly situated, t/a Easton Area
Glass; ENGINEERED GLASS WALLS,
INC., on behalf of itself and all others
similarly situated; BAILES GLASS CO.;
INTERSTATE GLASS DISTRIBUTORS,
INC., on behalf of itself and all others
similarly situated; ORLANDO AUTO
TOP, INC.; MAYFLOW ER SALES CO.,
INC., on behalf of itself and all others
similarly situated; CARDINAL IG;
REED’S BODY SHOP, INC.; BELETZ
BROTHERS GLASS COM PANY, INC.;
COMPLAST, INC.; WESTERN STATES
GLASS, on behalf of itself and all others
similarly situated; GRIMES AUTO
GLASS, INC.; D&S GLASS SERVICES,
INC.;GEORGE BROWN & SON GLASS
WORKS, INC.; THERMAL CHEK, INC.;
MOBILE GLASS, INC., individually and
as a representative of a class; JELD-WEN,
INC., an Oregon Corporation; JELD-WEN
CANADA LIMITED , a Canadian
corporation; JELD-WEN ARIZONA,
INC., an Arizona corporation; AVANTI
INDUSTRIES, I N C. , a n A rizona
corporation; LAKEWOOD CITY GLASS,
I N C . ; C A R O L I N A M I R R O R ;
ALLSTATE INSURANCE COMPANY;
ALLSTATE INDEMNITY COMPANY
v.

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PILKINGTON PLC; PILKINGTON
LIBBEY-OWENS-FORD CO., INC.;
AFG INDUSTRIES, INC.; GUARDIAN
INDUSTRIES CORPORATION; PPG
INDUSTRIES, INC.; LIBBEY-OWENS-
FORD CO., INC.; ASAHI GLASS CO.,
L T D . ; F O R D M O T O R C O . ;
PILKINGTON HOLDINGS; ASAHI
GLASS AMERICA, INC.
UNITED STATES OF AM ERICA
(Intervenor in D.C.)
(D.C. No. 97-mc-00550)
Class Plaintiffs and Grimes Auto Glass,
Appellants
On Appeal from the United States
District Court for the
Western District of Pennsylvania
(Dist. Court No. 97-mc-00550)
District Judges: Hon. Donetta W.
Ambrose and Hon. Donald E. Ziegler
Argued: June 22, 2004
Before: NYGAARD, MCKEE and
CHERTOFF, Circuit Judges
(Filed: September 29, 2004)
Samuel Issacharoff, Esq.
435 West 116 Street
New York, NY 10027
Daniel E. Bacine, Esq.
Barrack, Rodos & Bacine
2001 Market Street
Philadelphia, PA 19103
Eugene Spector, Esq.
Spector Roseman & Kodroff
1818 Market Street
Philadelphia, PA 19103
Robert N. Kaplan, Esq. (Argued)
Richard J. Kilsheimer, Esq.
Kaplan Fox & Kilsheimer
805 Third Avenue
New York, NY 10022
Michael D. Hausfeld, Esq.
Cohen M ilstein Hausfeld & Toll
1100 New York Avenue, N.W.
Washington, D.C. 20005
Robert Skirnick, Esq.
Meredith Cohen Greenfogel & Skirnick
One Liberty Plaza, 35th Floor
New York, NY 10006
Counsel for Appellants
Paul M. Dodyk, Esq. (Argued)
Peter T. Barbur, Esq.
Lawrence E. Buterman, Esq.
Kelly A. Rocco, Esq.
Cravath, Swaine & M oore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
David J. Armstrong, Esq.

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Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222
Counsel for Appellee PPG
Industries, Inc.
J. Michael Murray, Esq. (Argued)
Berkman, Gordon, Murray & DeVan
55 Public Square, Suite 2121
Cleveland, OH 44113-1949
Counsel for Appellee
Edward Bryant
Michael S. Sommer, Esq.
McDermott, Will & Emery
50 Rockefeller Plaza
New York, NY 10020
Elliot Silverman, Esq. (Argued)
McDermott, Will & Emery
18191 Von Karman Avenue
Irvine, CA 92612
Counsel for Appellee
Ronald W. Skeddle
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
This case addresses the recurring
question of what quantity and quality of
evidence suffices to create a genuine issue
of material fact as to one particular
element of a claim under Section 1 of the
Sherman Act: whether a defendant entered
into an unlawful agreement. Appellants
contend that appellee PPG Industries, Inc.
(“PPG”) conspired with its competitors to
fix the prices of flat glass and automotive
replacement glass in the early 1990s. The
District Court granted PPG’s motion for
summary judgment on the ground that
there was insufficient proof of an
agreement. We will reverse in part, affirm
in part, and remand for additional
proceedings.
I. Background
A. The Flat Glass and Automotive
Replacement Glass Industries
PPG manufactures sheets of glass
through a method called the “float
process.” Molten glass is poured over a
bath of higher-density liquid, such as
molten tin. As the glass floats on top of the
bath, it is polished under controlled
temperatures. Finally, the glass is fed into
an “annealing oven” where it gradually
cools and hardens. See In re Flat Glass
Antitrust Litigation, 191 F.R.D. 472, 476
n.7 (W.D. Pa. 1999). The glass that PPG
produces through the float process—in

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various sizes, thicknesses, and tints, see
Supp. App. 14 n.16; App. 634—is called
“flat glass.”
PPG and a handful of other
firms— Libbey-Owens-Ford Company
(“LOF,” a subsidiary of the British glass
producer P ilkington LLC) ; A FG
Industries, Inc. (“AFG,” a subsidiary of the
Japanese glass producer Asahi Glass Co.);1
Guardian Industries (“Guardian”); and
Ford Motor Co. (“Ford”)—manufacture
well over ninety percent of the flat glass
sold in the United States. In 1995, for
e x a m p l e , P P G a c c o u n t e d f o r
approximately 28% of domestic flat glass
shipments, LOF and AFG each accounted
for 19%, and Guardian and Ford each
accounted for 15%. Supp. App. 20.2
Flat glass produced through the
float process may be sold “as is,” in which
case it is used primarily in construction.
Supp. App. 16. Alternatively, many
different products may be “fabricated”
from flat glass by subjecting it to a variety
of processes. A substantial amount of flat
glass, for example, is fabricated for use in
automobiles. Flat glass may be molded and
combined with other parts to produce
windshields, for example, or side and rear
window s. Supp. App. 19. Some
products—called original equipment
manufacturer products (“OEM” glass
products)—are fabricated for sale to
vehicle manufacturers for use in new
v e h i c l e s . O t h e r p rodu cts— calle d
a u t o m o t i v e r e p l a c e m e n t g l a s s
products—are fabricated for sale and use
as automotive replacement parts. Supp.
App. 25. These are two separate markets.3
1 Asahi also owns a company called
Glaverbel, which was associated with
AFG, and a Canadian-based company
called Glaverbec.
2 A company named Cardinal Glass
Industries (“Cardinal”) accounted for
approximately 3% of domestic flat glass
sales in 1995. Cardinal, which is not a
defendant in this suit, did not produce flat
glass until 1992, when it purchased a flat
glass manufacturing plant that AFG built
for it. Before that time, Cardinal fabricated
products from flat glass it purchased from
PPG and others.
3 The parties fail to adequately
explain the relationship between OEM
glass parts and automotive replacement
parts, which plaintiffs describe as
“identical in composition.” Plaintiffs’ Br.
4. We gather from the record that they
differ in two important respects. First,
generally (but not always) only one OEM
glass producer exists for any particular
product. Thus PPG alone might produce a
particular windshield that a car
manufacturer uses in a particular model
car. In contrast, multiple manufacturers
typically produce any one type of
automotive replacement part. So PPG,
Guardian, and LOF might produce the
automotive replacement part that would
replace the OEM product that only PPG
produced and sold to the car manufacturer.
Second, OEM glass products are sold to a
particular car manufacturer, whereas the

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The automotive replacement glass
market has a four-tier vertical structure.
First, manufacturers—the handful of firms
mentioned above—produce flat glass.
Second, various companies fabricate the
flat glass into different types of automotive
replacement glass products. The major
United States fabricators of automotive
replacement glass products during the
class period were PPG, LOF, Ford,
G u a r d i a n , S a f e l i t e , V i r a c o n ,
Premier/Hordis, and Chrysler. App. 585.
Thus a number of firms, such as PPG, both
manufacture flat glass and fabricate it into
automotive replacement glass products.4
Third, the fabricators sell the parts
by the “truck load” to w hole sale
distributors. The wholesale distributors
then sell the automotive replacement glass
products in less than truckload quantities
to the retail installers that sell the products
directly to car owners.
PPG operates at every level of the
automotive replacement glass market; that
is, PPG is “vertically integrated.” In
addition to manufacturing flat glass and
fabricating automotive replacement glass
products, PPG runs a wholesale
distribution operation that sells less than
truckload quantities to retail installers. Yet
PPG also sells its products to its
downstream competitors. It sells flat glass
to autom otive repla cem ent glass
fabricators, and it sells truckload quantities
of automotive replacement glass products
to wholesale distributors.
B. The Alleged Conspiracies
In 1993, LOF fired two of its
executives—Ronald Skeddle (LOF’s
President and Chief Executive Officer)
and Edward Bryant (LOF’s Executive
Vice President, the company’s second-
highest ranking officer)—and a grand jury
indicted them for conspiracy, mail and
wire fraud, and money laundering. A jury
eventually acquitted them of the charges,
but in the meantime Skeddle and Bryant
alleged that during the early 1990s LOF
had conspired with its competitors to fix
the price of the glass products it sold. See
In re Flat Glass Antitrust Litigation, 288
F.3d 83, 86 (3d Cir. 2002).
Skeddle and Bryant’s allegations
spurred plaintiffs to file several private
antitrust lawsuits against LOF and its
competitors (PPG, AFG, Ford, and
Guardian), and the Judicial Panel on
Multidistrict Litigatio n eve ntu ally
consolidated and transferred the actions to
the Western District of Pennsylvania. After
the District Court certified two subclasses
of plaintiffs, see In re Flat Glass Antitrust
Litigation, 191 F.R.D. 472, 475 (W.D. Pa.
corresponding identical automotive
replacement glass products are sold to
multiple wholesalers and retail installers.
4 Automotive replacement glass
fabricators produced approximately
10,000 different automotive replacement
glass products. No one fabricator
produced all 10,000. PPG produced
approximately 6,000. App. 585.

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1999), plaintiffs reached settlements with
all defendants except PPG.
Plaintiffs allege that PPG and its
competitors conspired to “fix, raise, and
maintain” the prices of flat glass and
automotive replacement glass. The two
alleged conspiracies correspond with the
two subclasses that the District Court
certified. See In re Flat Glass Antitrust
Litigation, 191 F.R.D. at 475. One
subclass consists of individuals and
entities that purchased flat glass or
products fabricated from flat glass from
PPG, LOF, Guardian, Ford, or AFG. The
other subclass consists of individuals and
entities that purchased automotive
replacement glass products from any of
those same firms. Id.
Plaintiffs’ allegations regarding
price-fixing in the market for flat glass are
relatively straightforward. Several times
during the class period, PPG and the other
flat glass producers raised their “list
prices” for flat glass by the same amount
and within very close time frames. Within
a twelve-day period in the summer of
1991, for example, PPG and its
competitors all raised their list prices for
flat glass by the same amounts.5 Plaintiffs
simply contend that PPG and its
competitors agreed to raise their prices,
rather than doing so independently and
with no concerted coordination.
5 The District Court catalogued
these price increases as follows:
July of 1991, all defendants
raised their prices within
days of each other by 7.5-
9%, with an effective date
of July 29 or August 1,
1991; September of 1992,
all defendants raised their
prices within days of each
other by 5-9% with an
effective date of October 1
or October 12; May of
1993, defendants raised
their prices within days of
each other by 5.5% with an
effective date of June 7 or
9; October of 1993,
defendants raised their
prices within days of each
other by 6.5% with an
effective date of October 30
or November 1, 1993; April
of 1994 all defendants
raised their prices by 5-9%
with an effective date of
May 1 or 2; August of 1994,
all defendants raised their
prices by 5-8% with an
effective date of September
19, 1994; March of 1995,
all defendants raised their
prices by 6% with an
effective date of April 3 or
11.
App. 16 n.4 (internal citations to District
Court record omitted).

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Plaintiffs’ allegations regarding
price-fixing in the market for automotive
replacement glass are more complicated.
According to plaintiffs, PPG and other
automotive replacement glass fabricators
used a mechanism, called the “NAGS
Calculator,” to fix prices at supra-
competitive levels.
NAGS, which stands for “National
Auto Glass Specifications,” is a business
that produced a catalogue called the
“ N AG S Calculator.” Th e N A G S
Calculator supplied an identifying number
for each type of automotive replacement
g l a s s p r o d u c t a n d p ro v i d e d a
recommended price for an installer to
charge a car owner for the part. NAGS
came up with its recommended price for
any particular automotive replacement
glass product by taking a truckload
quantity price of that product and
multiplying it by a number (a “multiplier”)
specific to that product. Generally, NAGS
would use the truckload quantity price for
the OEM glass product that the automotive
replacement glass was intended to replace.
According to plaintiffs, PPG and
other automotive replacement glass
manufacturers knew the multipliers that
NAGS used to devise its recommended
prices. Thus PPG could, and plaintiffs
allege did, work backwards from the
recommended price to determine the
truckload price that NAGS used in its
calculation. “If the truckload price used by
NAGS was different from its own
truckload price,” plaintiffs argue, “PPG
then adjusted its truckload price to match
the truckload price used to create the
NAGS price, as did the other [automotive
replacement glass] manufacturers.”
Plaintiffs’ Br. 33. Thus plaintiffs contend
that PPG and its competitors “had an
understanding and acted in concert” to use
the NAGS Calculator to “align their
truckload price lists and stabilize pricing,
and as a benchmark for pricing of
[automotive replacement glass] at less-
than-truckload quantities.” Plaintiffs’ Br.
30.
C. The Present Appeal
The District Court granted PPG’s
motions for summary judgment on both of
plaintiffs’ price-fixing claims. Before
doing so, the Court circumscribed the
evidence it considered when deciding
PPG ’s summ ary judgment motions
through a series of in limine motions. The
Court refused to order Skeddle and Bryant
to testify despite their invocation of their
Fifth Amendment privileges, for example,
and it also excluded many of Skeddle’s
handwritten notes that plaintiffs argue tend
to implicate PPG in a price-fixing
conspiracy.
Plaintiffs appeal from the District
Court’s summary judgment and certain of
its evidentiary decisions. After addressing
the applicable legal standards, we first
address whether summary judgment was
warranted based on the evidence the

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District Court considered.6 We conclude
that the District Court should not have
granted summary judgment on plaintiffs’
flat glass price-fixing claim, and we
address the District Court’s evidentiary
rulings so that the Court can further
consider what evidence a jury may
consider on remand. We affirm summary
judgment on plaintiffs’ automotive
replacement glass conspiracy claim.
II. Discussion
Section 1 of the Sherman Act
provides that “every contract, combination
in the form of trust or otherwise, or
conspiracy, in restraint of trade or
commerce . . . is declared to be illegal.” 15
U.S.C. § 1. Despite its broad language,
Section 1 only prohibits contracts,
combinations, or conspiracies that
unreasonably restrain trade. See InterVest
Inc. v. Bloomberg, L.P., 340 F.3d 144, 158
(3d Cir. 2003). Certain restraints of trade
are per se unreasonable, while others
require more searching analysis under the
“rule of reason.” Id. at 158-59.
Restraints of trade are per se
unreasonable when they are “‘manifestly
anticompetitive’ or ‘would always or
a lm o s t a l w a y s t e n d to r e s t r i c t
competition.’” Rossi v. Standard Roofing,
Inc., 156 F.3d 452, 461 (3d Cir. 1998)
(quoting Business Elecs. Corp. v. Sharp
Elecs. Corp., 485 U.S. 717, 723 (1988)).
Because of their “pernicious effect on
competition and lack of any redeeming
virtue,” Northern Pac. Ry. v. United
States, 356 U.S. 1, 5 (1958), these
restraints of trade are “conclusively
presumed to unreasonably restrain
competition ‘without elaborate inquiry as
to the precise harm [it has] caused or the
business excuse for [its] use.” Rossi, 156
F.3d at 461 (internal citations and
quotations omitted).
Here, plaintiffs allege that PPG
engaged in horizontal price-fixing—i.e.,
“where competitors at the same market
level agree to fix or control the prices they
will charge for their respective goods or
services.” United States v. Brown Univ., 5
F.3d 658, 670 (3d Cir. 1993). Since at
least United States v. Socony-Vacuum Oil
Co., 310 U.S. 150 (1940), the Supreme
Court has held that such restraints of trade
are per se unreasonable. “Whatever
economic justification particular
price-fixing agreements may be thought to
have,” the Court explained, “the law does
not permit an inquiry into their
reasonableness. They are all banned
because of their actual or potential threat
to the central nervous system of the
economy.” 310 U.S. 150, 224 n.59 (1940);
see also Brown Univ., 5 F.3d at 670.
As a result, plaintiffs need only
prove that “the defendants conspired
among each other and that this conspiracy
was the proximate cause of the plaintiff’s
6 We exercise plenary review over
the District Court’s grant of summary
judgment. See, e.g., InterVest Inc. v.
Bloomberg, L.P., 340 F.3d 144, 158 (3d
Cir. 2003).

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injury.” InterVest, 340 F.3d at 159. PPG
does not dispute proximate causation.
Rather, it argues that it did not agree with
its competitors to fix prices.
The existence of an agreement is
“[t]he very essence of a section 1 claim.”
Alvord-Polk, Inc. v. Schumacher & Co.,
37 F.3d 996, 999 (3d Cir. 1994). The
Sherman Act speaks in terms of a
“contract,” “combination” or “conspiracy,”
but courts have interpreted this language to
require “some form of concerted action.”
Id. at 999 & n.1. In other words, there
must be a “‘unity of purpose or a common
design and understanding or a meeting of
minds’” or “‘a conscious commitment to
a common scheme.’” Monsanto Co. v.
Spray-Rite Service Corp., 465 U.S. 752,
764 (1984) (quoting Edward J. Sweeney &
Sons, Inc. v. Texaco, Inc., 637 F.2d 105,
111 (3d Cir. 1980)).
When faced with whether a plaintiff
has offered sufficient proof of an
agreement to preclude summary judgment,
a court must generally apply the same
summary judgment standards that apply in
other contexts. See Intervest, 340 F.3d at
159-60. A court shall render summary
judgment when the evidence shows “that
there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law.” Fed R. Civ.
P. 56(c). In making this determination, a
court must “view the facts and any
reasonable inferences drawn therefrom in
the light most favorable to the party
opposing summary judgment.” Intervest,
340 F.3d at 160. And a court “should not
tightly compartmentalize the evidence put
forward by the nonmovant, but instead
should analyze it as a whole to see if it
supports an inference of concerted action.”
Petruzzi's IGA v. Darling-Delaware, 998
F.2d 1224, 1230 (3d Cir.1993).
Although these normal summary
judgment principles apply in antitrust
cases, an important distinction exists. As
the Supreme Court held in Matsushita
Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986), “antitrust law
limits the range of permissible inferences
from ambiguous evidence in a § 1 case.”
Id. at 588; see also Monsanto Co. v. Spray-
Rite Service Corp., 465 U.S. 752, 763-64
(1984). In other words, certain “inferences
may not be drawn from circumstantial
evidence in an antitrust case.” Intervest,
340 F.3d at 160.7 This higher threshold is
imposed in antitrust cases to avoid
deterring innocent conduct that reflects
enhanced, rather than restrained,
competition.
7 The “strictures of Matsushita do
not apply” when a plaintiff provides direct
evidence of a conspiracy. Petruzzi’s, 998
F.2d at 1233. That is 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.” Id. In
addition, “the focus in Matsushita was on
ambiguous evidence, and what inferences
reasonably could be drawn from that
evidence.” Id. (internal citation omitted).

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We explored “exactly what
inferences are circumscribed in a section 1
case” in our decision in Petruzzi's. There,
w e i d e n t i f i e d “ t w o i m p o r t a n t
circumstances underlying the [Supreme]
Court’s decision in Matsushita”: (1) “the
plaintiffs’ theory of conspiracy was
implausible”; and (2) “permitting an
inference of antitrust conspiracy in the
circumstances ‘would have the effect of
deterring significant procompetitive
conduct.’” 998 F.2d at 1232 (quoting In re
Coordinated Pretrial Proceedings in
Petroleum Prods. Antitrust Litig., 906 F.2d
432, 439 (9th Cir. 1990)) (emphasis in
Petruzzi’s). In other words, “the Court
stated that the acceptable inferences which
can be drawn from circumstantial evidence
vary with the plausibility of the plaintiffs’
theory and the dangers associated with
such inferences.” Id.; see also Matsushita,
475 U.S. at 587 (“[I]f the factual context
r e n d e r s [ t h e p l a i n t i f f ' s ] c l a i m
implausible— if the claim is one that
simply makes no economic sense—[a
plaintiff] must come forward with more
persuasive evidence to support [its] claim
than would otherwise be necessary.”)
(citations omitted).
The plaintiffs in Matsushita alleged
that the defendants conspired to engage in
predatory pricing, the practice by which “a
firm sets its prices temporarily below
costs, with the hope that the low price will
drive a competitor out of business, after
which the ‘predatory’ firm will raise its
prices so high that it will recoup its
temporary losses and earn additional
profit, all before new firms, attracted by
the high prices, enter its market and force
prices down.” Clamp-All Corp., 851 F.2d
at 483. Courts and commentators alike
have come to regard predatory pricing as a
relatively speculative phenomenon,
particularly when its success requires
collusion among multiple firms. See
Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209,
226-27 (1993). Inferences about predatory
pricing are also inherently weak because
the behavior of firms engaged in predatory
pricing would largely mirror how firms in
a competitive market act: by cutting prices.
See Matsushita, 475 U .S. at 594
(“[C]utting prices in order to increase
business often is the very essence of
competition.”). Thus inferring from
ambiguous evidence that firms are
engaging in predatory pricing would “chill
procompetitive behavior.” Petruzzi’s, 998
F.2d at 1232.
In Petruzzi’s, by contrast, the
plaintiff alleged that the defendants
conspired to alloc ate cu sto mers .
“[P]laintiff’s theory of conspiracy is not
implausible,” we explained, rather it made
“perfect economic sense.” 998 F.2d at
1232. In addition, the challenged activities
could not reasonably be perceived as
procompetitive. Id. (“After all, refusing to
bid on accounts hardly can be labeled as
the ‘very essence of competition.’”)
(quoting Matsushita, 475 U.S. at 594). As
a result of those circumstances, we
concluded that “more liberal inferences
from the evidence should be permitted
than in Matsushita because the attendant
dangers from drawing inferences

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recognized in Matsushita are not present.”
Id.; see also Intervest, 340 F.3d at 162;
Alvord-Polk, Inc., 37 F.3d at 1001 (“[T]he
meaning we ascribe to circumstantial
evidence will vary depending on the
challenged conduct.”).8
Here, like in Petruzzi’s, plaintiffs’
theory of conspiracy—an agreement
among oligopolists to fix prices at a
supracompetitive level—makes perfect
economic sense. In addition, absent
increases in marginal cost or demand,
raising prices generally does not
approximate—and cannot be mistaken
as—competitive conduct.
Yet despite the absence of the
Matsushita Court’s concerns, this Court
and others have been cautious in accepting
inferences from circumstantial evidence in
cases involving allegations of horizontal
price-fixing among oligopolists. See
Williamson Oil Co. v. Philip Morris USA,
R.J., 346 F.3d 1287, 1300-01 (11th Cir.
2003); Blomkest Fertilizer, Inc. v. Potash
Corp. of Saskatchewan, 203 F.3d 1028,
1042-43 (8th Cir. 2000); In re Baby Food
Antitrust Litigation, 166 F.3d 112, 121-22
(3d Cir. 1999); Clamp-All Corp. v. Cast
Iron Soil Pipe Institute, 851 F.2d 478, 484
(1st Cir. 1988); Apex Oil Co. v. DiMaurio,
822 F.2d 246, 253-54 (2d Cir. 1987); see
also Petruzzi’s, 998 F.3d at 1232-33.9 The
basis for this circumspect approach is the
theory of “interdependence.” See Donald
F. Turner, The Definition of Agreement
Under the Sherman Act: Conscious
Parallelism and Refusals to Deal, 75 Harv.
L. Rev. 655, 662-63 (1962).
8 As one prominent antitrust
commentator has explained:
Matsushita spoke in the
context of a highly
improbable twenty-year-
long predatory pricing
conspiracy and required
high-quality evidence to
permit such a conspiracy to
be presented to a jury. . . .
However, Matsushita itself
said little about proof
requirements in a case
where underlying structural
evidence indicates that the
offense is quite plausible
and would be profitable for
the defendants.
Herbert Hovenkamp, The Rationalization
of Antitrust, 116 Harv. L. Rev. 917, 925-
26 (2003) (reviewing Richard A. Posner,
Antitrust Law (2d ed. 2001)).
9 A leading antitrust scholar, who
now authors the Areeda treatise, has
characterized these cases at least in part as
“an unfortunate misinterpretation” of
Matsushita. Herbert Hovenkamp, The
Rationalization of Antitrust, 116 Harv. L.
Rev. at 925 (“[U]nfortunately, many courts
have read M atsushita as requiring a certain
quantum evidence of verbal agreement
before summ ary judgment can be
avoided.”).

-- 11 of 38 --

12
The theory of interdependence
posits the following: In a market with
many firms, the effects of any single firm’s
price and output decisions “would be so
diffused among its numerous competitors
that they would not be aware of any
change.” Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 1429, at 206
(2nd ed. 2000). In a highly concentrated
market (i.e., a market dominated by few
firms), however, any single firm’s “price
and output decisions will have a noticeable
impact on the market and on its rivals.” Id.
Thus when a firm in a concentrated market
(i.e., an “oligopolist”) is deciding on a
course of action, “any rational decision
must take into account the anticipated
reaction of the other [] firms.” Id. at 207.10
The result, according to the theory
of interdependence, is that firms in a
concentrated market may maintain their
prices at supracompetitive levels, or even
raise them to those levels, without
engaging in any overt concerted action.
We quote the Areeda treatise at length:
The first firm in a five-firm
oligopoly, Alpha, may be
eager to lower its price
somewhat in order to
expand its sales. However, it
knows that the other four
f ir m s would probably
respond to a price cut by
reducing their prices to
maintain their previous
market shares. Unless Alpha
believes that it can conceal
its price reduction for a time
o r o t h e r w i s e g a i n a
substantial advantage from
being the first to move, the
price reduction would
merely reduce Alpha’s
profits and the profits of the
other firms as well.
S u c h “ o l i g o p o l i s t i c
rationality” cannot only
forestall rivalrous price
reductions, it can also
provide for price increases
through, for example, price
leadership. If the price had
for some reason been less
than X [the price a
monopolist would charge to
maximize profits], firm Beta
might announce its decision
to raise its price to X
effective immediately, or in
several days, or next season.
The other four firms may
10 “For example, in a market of one
hundred sellers of equal size, an expansion
in output of 20 percent by one of them
will result in an average fall in output of
only about .2 percent for each of the
others, so a seller need not worry in
making his pricing decisions about the
reactions of his rivals.” Richard A. Posner,
Antitrust Law 56 (2nd ed. 2001). But if
“there are three sellers of equal size, a 20
percent expansion in the sales of one will
cause the sales of each of the others to fall
by an average of 10 percent—a sales loss
the victims can hardly overlook.” Id.

-- 12 of 38 --

13
each choose to follow
Beta’s lead; if they do not
increase their prices to
Beta’s level, Beta may be
forced to reduce its price
to their level. Because
each of the other firms
knows this, each will
consider whether it is
better off when all are
charging the old price or
price X. They will
obviously choose X when
they believe that it will
m a x i m i z e i n d u s t r y
profits.
Id. at 207-08.
Despite the noncompetitive nature
of such conduct, which we have come to
call “conscious parallelism,” we have held
that the Sherman Act does not proscribe it.
See In re Baby Foods, 166 F.3d at 121-22.
There are two primary bases for this
approach, both embodied in a line of
scholarship that started with Donald
Turner in 1962 and continued in large part
in Phillip Areeda’s influential antitrust
treatise. First, there exists the notion that
interdependent behavior is not an
“agreement” within the term’s meaning
under the Sherman Act. See Turner, supra,
at 663-65; but see Posner, Antitrust Law,
supra, at 94-95. Second, Turner and
Areeda argued that judicial remedies are
i n c a p a b l e o f a d d r e s s i n g t h e
anticompetitive effects of consciously
parallel pricing. Turner, supra, at 669-71,
Areeda, Antitrust Law, supra, ¶¶ 1432d5-
1432f, at 232-36; but see Posner, supra, at
98. Indeed, the Supreme Court has
described conscious parallelism in dicta as
“the process, not in itself unlawful, by
which firms in a concentrated market
might in effect share monopoly power,
setting their prices at a profit-maximizing,
supracompetitive level by recognizing
their shared economic interests and their
interdependence with respect to price and
output decisions.” Brooke Group Ltd. v.
Brown & Williamson Tobacco Corp., 509
U.S. 209, 227 (1993) (emphasis added).
As a result, we have required that
plaintiffs basing a claim of collusion on
inferences from consciously parallel
behavior show that certain “plus factors”
also exist. See In re Baby Food, 166 F.3d
at 122; Petruzzi’s, 998 F.2d at 1243.11
Existence of these plus factors tends to
ensure that courts punish “concerted
action”—an actual agreement—instead of
the “unilateral, independent conduct of
competitors.” In re Baby Food, 166 F.3d at
11 Thus in order to establish illegal
concerted action based on “consciously
parallel behavior, a plaintiff must show (1)
that the defendants’ behavior was parallel;
(2) that the defendants were conscious of
each other’s conduct and that this
awareness was an element in their
decision-making process; and (3) certain
‘plus’ factors.” Petruzzi’s, 998 F.2d at
1242, quoted in Intervest, 340 F.3d at 165.
It is undisputed that the first two
circumstances exist here, and we therefore
concentrate on the third and final.

-- 13 of 38 --

14
122. In other words, the factors serve as
proxies for direct evidence of an
agreement.
The question then becomes, what
are “plus factors” that suffice to defeat
summary judgment? There is no finite set
of such criteria; no exhaustive list exists.
See Id.; Areeda, supra, ¶ 1434a, at 241-42.
We have identified, however, at least three
such plus factors: (1) evidence that the
defendant had a motive to enter into a
price fixing conspiracy; (2) evidence that
the defendant acted contrary to its
interests; and (3) “evidence implying a
traditional conspiracy.” Petruzzi’s, 998
F.2d at 1244.
In the context of parallel pricing,
the first two factors largely restate the
phenomenon of interdependence. We
candidly acknowledged as much in In re
Baby Food, 166 F.3d at 122. See also
Areeda, supra, ¶ 1434c1, at 245
(“‘[C]onspiratorial motivation’ and ‘acts
against self-interest’ often do no more than
restate interdependence.”); Posner, supra,
at 100. Evidence that the defendant had a
motive to enter into a price fixing
conspiracy means evidence that the
industry is conducive to oligopolistic price
fixing, either interdependently or through
a more express form of collusion. In other
words, it is “evidence that the structure of
the market was such as to make secret
price fixing feasible.” In re High Fructose
Corn Syrup Antitrust Litigation, 295 F.3d
651, 655 (7th Cir. 2002). Evidence that the
defendant acted contrary to its interests
means evidence of conduct that would be
irrational assuming that the defendant
operated in a competitive market. In a
competitive industry, for example, a firm
would cut its price with the hope of
increasing its market share if its
competitors were setting prices above
marginal costs. Put differently, in
analyzing this factor a court looks to
“evidence that the market behaved in a
noncompetitive manner.” Id.
These two plus factors are
important to a court’s analysis, because
their existence tends to eliminate the
possibility of mistaking the workings of a
competitive market—where firms might
increase price when, for example, demand
i n c r e a s e s — w i t h i n t e rd e p e n d e n t ,
supracompetitive pricing. But since these
factors often restate interdependence (at
least in the context of an alleged price-
fixing conspiracy), they m ay not
suffice—by themselves—to defeat
summary judgment on a claim of
h o r i z o n t a l p r i c e - f i x i n g a m o n g
oligopolists.1 2 The most important
12 Neither factor is “strictly
necessary.” In re High Fructose Corn
Syrup Antitrust Litigation, 295 F.3d 651,
655 (7th Cir. 2002). Thus this type of
economic evidence is neither necessary
nor sufficient to conclude that sufficient
proof of an agreement exists to preclude
summary judgment, but it is relevant and
courts should as a general matter consider
it.
We also observe that certain types

-- 14 of 38 --

15
evidence will generally be non-economic
evidence “that there was an actual,
manifest agreement not to compete.” Id. at
661. That evide nce m ay involv e
“customary indications of traditional
conspiracy,”or “proof that the defendants
got together and exchanged assurances of
common action or otherwise adopted a
common plan even though no meetings,
conversations, or exchanged documents
are shown.” Areeda, supra, ¶ 1434b, at
243; see also Petruzzi’s, 998 F.2d at 1244.
We turn to whether plaintiffs here
have adduced sufficient evidence of plus
factors to preclude summary judgment on
their two separate antitrust claims.
A. Flat Glass
We first note that plaintiffs have
offered substantial evidence tending to
show that PPG had a motive to enter into
a price fixing conspiracy because
conditions existed in the flat glass industry
that were conducive to collusion. As we
have described, the flat glass market is
concentrated; there are a handful of sellers
and there is no “fringe market” of smaller
firms. Flat glass is sold primarily on the
basis of price, and although it may vary in
tint or thickness it is generally a
standardized product. Importantly, the
demand for flat glass was in decline during
the start of the 1990s and PPG and its
competitors had e xces s cap acity.
Normally, reduced demand and excess
supply are economic conditions that favor
price cuts, rather than price increases.
There are also high fixed costs in the
industry. See App. 635. Suffice it to say,
the flat glass industry is in many respects a
text book example of an industry
susceptible to efforts to maintain
supracompetitive prices. See generally
Richard A. Posner, Antitrust Law 69-79
(2d ed. 2001). PPG concedes as much. See
Tr. of Oral Argument 21-22.
Similarly, there is evidence in the
record indicating that the price increases
PPG and its competitors implemented
were inconsistent with competition in the
industry. In other words, there is evidence
of anti-competitive behavior and that PPG
acted “contrary to its interests.” The entry
of Cardinal into the market, for example,
tends to indicate that flat glass producers
were charging supracompetitive prices.
See Posner, supra, at 89 (“The charging of
a monopoly price will attract new
competitors to a market who perceive
opportunities for unusual profits by reason
of the abnormally high price.”). More
important, no evidence suggests that the
increase in list prices was correlated with
any changes in costs or demand. Indeed, in
of “actions against self interest” may do
m o r e t h a n r e s t a t e e co n o m i c
interdependence. For example, non-price
acts against self-interest, such as
apparently unilateral exchanges of
confidential price information, cannot
simply be explained as a result of
oligopolostic interdependence. See
Blomkest Fertilizer, Inc., 203 F.3d at
1046-47 (Gibson, J., dissenting).

-- 15 of 38 --

16
July of 1992 a PPG executive noted that
“[n]o one . . . believes that demand will be
robust enough to support a price increase
without significant discipline on the part of
all float producers.” App. 5841. After the
flat glass producers implemented a price
increase in September of 1992, the same
executive noted that “[b]asic supply and
demand do not support this [1992]
increase.” App. 5908.
All the above indicates that the
price increases were collusive, but not
whether the collusion was merely
interdependent or the result of an actual
agreement. We therefore consider whether
sufficient “traditio nal” conspiracy
evidence exists from which a reasonably
jury could infer that an agreement existed.
Plaintiffs argue that evidence that PPG’s
competitors entered into an agreement—at
least amongst themselves—tends to show
that PPG too entered the same agreement.
They also argue that other circumstantial
evidence shows—or at least a finder of
fact could infer—that PPG agreed to raise
the price of flat glass three specific times:
June-July of 1991, September-October of
1992, and May-June of 1993.
As a preliminary matter, however,
we address an argument that pervades
PPG’s briefs, both before us and before the
District Court. PPG contends that
regardless of the flat glass producers’ list
prices, the actual transactional prices—that
is, the prices at which flat glass producers
a c t u a l l y s o l d t h e i r p r o d u c t t o
customers—declined during the period of
the alleged conspiracy. Insofar as PPG
argues that plaintiffs cannot establish
liability as a matter of law for that reason,
it is simply wrong.13 “An agreement to fix
13 PPG argued before the District
Court, for example, that “controlling case
law precludes an antitrust plaintiff from
avoiding summary judgment by reliance
on evidence relating to list prices.” App.
667. PPG misstates the law. Declining
transaction prices will tend to support a
conclusion that competitors did not enter
into an agreement to fix prices where the
other record evidence also fails to
sufficiently prove an agreement. See, e.g.,
Clamp-All Corp., 851 F.2d at 484 (“[T]he
fact that [the defendants] often set prices
that deviated from their price lists helps
support the inference that the similarity of
price lists reflects individual decisions to
copy, rather than any more formal pricing
agreement.”). Our decision in In re Baby
Food is not to the contrary. In the specific
factual setting of that case—involving
“hundreds of products” and multiple
complicated discounts and price
promotions—we concluded that plaintiffs’
and their experts’ use of list price data was
insufficient to show that parallel pricing
had occurred. 166 F.3d at 128-29.
Significantly, the defendants made
“similar pricing decisions” 15.5% of the
time and priced their products differently
84.5% of the time. Id. at 128. The District
Court therefore concluded, in a portion of
its decision that we cited with approval,
that the plaintiffs were “unable to show
that defendants’ prices moved in a parallel
fashion. That is true both for list prices

-- 16 of 38 --

17
prices is . . . a per se violation of the
Sherman Act even if most or for that
matter all transactions occurred at lower
prices.” In re High Fructose Corn Syrup,
295 F.3d at 656.
PPG does not—it cannot—seriously
contend that the flat glass producers
increased their list prices with no intention
of affecting transaction prices. “[S]ellers
would not bother to fix list prices if they
thought there would be no effect on
transaction prices.” Id. Thus declining
transaction prices despite an agreement to
fix list prices would constitute a failed
attempt to fix prices. But a horizontal
agreement to fix prices need not succeed
for sellers to be liable under the Sherman
Act; it is the attempt that the Sherman Act
proscribes. See Socony-Vacuum Oil Co.,
310 U.S. at 224 n.59.
1. Evidence of an Agreement
Among PPG’s Competitors
The District Court concluded that
the record “undoubtedly evidences that
several of the settling defendants
conspired to fix prices.” App. 46. We
agree. The most compelling basis for this
conclusion is a document that LOF
submitted to the Department of Justice’s
Antitrust Division in 1995.
The Antitrust Division had a
“Corporate Leniency Policy” in effect at
the time under which the DOJ accorded
“leniency to corporations reporting their
illegal antitrust activity at an early stage, if
they meet certain conditions.” App. 6459.
Among the policy’s requirements was that
the cooperating corporation “report[] the
wrongdoing with candor and completeness
and provide[] full, continuing and
complete cooperation that advances the
Division in its investigation.” App. 6460.
LOF sought leniency under the
policy in 1995, but the Antitrust Division
concluded that LOF had not been
sufficiently forthcoming with information
of its wrongdoing. “We are surprised that
you consider our proffer, which described
an agreed upon, across the board price
increase for the entire United States,” LOF
responded, “to be less than a ‘full and
complete disclosure.’” App. 5003.
LOF’s response to the Antitrust
Division does not directly state that it
agreed with PPG to raise prices. But a
reasonable factfinder could infer such an
agreement from LOF’s reference to an
“across the board” price increase. Black’s
Law Dictionary defines “across-the-board”
as “[a]pplying to all classes, categories, or
groups.” Black’s Law Dictionary 24 (7th
ed. 1999). One reasonable interpretation of
LOF’s statement is that LOF agreed with
one or more competitor to increase the
price of all types of flat glass. Another is
that LOF agreed with all its competitors to
increase prices on one or more category of
flat glass. And yet another is that LOF
and transaction prices.” Id.

-- 17 of 38 --

18
agreed with all its competitors to increase
the price of all types of flat glass.14
PPG argues that under our decision
in In re Baby Food, “the fact that some
other glass producers may have attempted
to fix prices in this case is irrelevant.” PPG
Brief 82. We disagree. Even if LOF’s
statement—and any other evidence—tends
to show that PPG’s competitors agreed
among themselves to raise prices but does
not directly implicate PPG, it is surely not
irrelevant to whether PPG entered an
agreement. If six firms act in parallel
fashion and there is evidence that five of
the firms entered into an agreement, for
example, it is reasonable to infer that the
sixth firm acted consistent with the other
five firms’ actions because it was also a
party to the agreement. That is especially
so if the sister firm’s behavior mirrored
that of the five conceded coconspirators.
In some circumstances, to be sure, such
evidence might not be sufficient alone to
defeat summary judgment. See In re Citric
Acid Litig., 191 F.3d 1090, 1106 (9th Cir.
1999). But we need not determine whether
it can be here, because plaintiffs argue that
additional evidence supports their
contention that PPG entered into an
agreement.
2. The June-July 1991 Increase
On June 7, 1991, AFG announced
that it was raising the price of its flat glass.
The price increase was to become effective
on July 15, 1991. App. 3552. Neither PPG
nor any of AFG’s other competitors raised
their prices in response.15
Also on June 7, 1991, top
executives from Pilkington’s various
businesses (including LOF) met in the
United Kingdom. Minutes from the
meeting state: “There were indications that
a price increase of approximately 8%
would hold” in the United States. App.
3868.
A week later, on June 13, 1991, two
of LOF’s board members (Tomoaki Abe
and Mr. M atsumora ) traveled to
Pennsylvania to play golf with Robert
Duncan, the Vice President of PPG’s Glass
Group. The night before they played golf,
Abe’s administrative assistant sent him a
fax relating a message from Glen
Nightingale, the Pilkington executive
based in London with responsibility for
LOF.16 The fax stated: “M r. Nightingale
14 PPG does not argue that LOF’s
proffer is not admissible, and we therefore
assume that it is for purposes of this
decision. In any case, however, we would
reach the same result even if we did not
consider LOF’s proffer.
15 AFG raised the price of its
“pattern glass” by 4%, its “thin glass
products” by 5%, its “gray and bronze
thicknesses” by 9%, and its “4mm-12mm”
also by 9%. App. 3552.
16 LOF’s proffer to the DOJ
identified Nightingale as an individual
“involved in the 1992 activities.” App.
5003. It also stated that Nightingale had

-- 18 of 38 --

19
requests that you call him on Friday
morning [June 14] before you leave your
hotel room—it will only take two minutes.
He seemed rather firm. . .” App. 3890.
Two weeks later, on June 28, 1991,
PPG announced a 7.5-9% price
increase—an amount different than the
price increase AFG announced on June 7,
but notably approximately 8%— to be
effective July 29, 1991. App. 5833. PPG’s
competitors eventually followed suit with
virtually identical price increases, to be
effective either July 29 or August 1, 1991.
Ford announced its price increase on July
1, app. 3472; LOF announced its price
increase on July 8, app. 3474; Guardian
announced on July 9, app. 3482; and AFG
rescinded its June 7 increase and
announced a price increase in line with
PPG’s on July 10, app. 3551.
A copy of PPG’s June 28, 1991
announcement produced from the files of
John Frazier (manager of PPG’s
Knoxville, Tennessee branch) contains a
typewritten note on it stating: “ALL
OTHER MAJOR GLASS SUPPLIERS
ARE CONCURRENTLY RAISING
PRICES THE SAM E PERCENTAGE.”
App. 5833. Evidence suggests that Frazier
received this document, together with the
typewritten notation, sometime before
PPG’s competitors had actually matched
PPG’s price increase.17
On July 2, 1991, a Ford executive
sent an email to his regional managers
stating that “[w]e must have total support
of this industry pricing action and focus
our attention on implementing the price
increase in an intelligent manner. The
actions being taken are important to the
industry and will improve the commercial
glass profitability.” App. 3553. As of that
day, however, neither LOF nor Guardian
had announced a price increase. They
announced increases on July 8 and July 9,
respectively.
A PPG internal document dated
September 6, 1991 stated that the “price
increase was implemented without any
problems.” App. 5831. A similar
document, dated September 3, 1991, stated
that “[t]he industry price increase was
implemented in August by all primary
“discussions with [an AFG executive] that
resulted in a price move.” App. 5004.
Nightingale invoked his Fifth Amendment
privilege against self incrimination when
plaintiffs sought to depose him.
17 PPG on the other hand argues
that there is evidence suggesting that
someone typed the note on the June 28
announcement after its competitors
announced their price increases. PPG is
undoubtedly correct; this document’s time
frame is a disputed fact and a finder of fact
could reasonably reach the conclusion
PPG urges us to draw. But a fact finder
could also reasonably conclude the
opposite, and it is black letter law that we
must draw all reasonable inferences in
plaintiffs’ favor at this point in the
proceedings.

-- 19 of 38 --

20
manufacturers, although varying degrees
of protection were offered by our
competition.” App. 5731. An internal LOF
document from November of 1991,
however, stated that the “[p]rice increase
of 8/19/91 is unraveling at several key
acco unts d u e t o A F G /G laverbec/
Guardian’s failure to hold the line on
pricing and PPG’s price protected annual
contracts through the year end.” App.
1712.
To summarize: AFG raised its
prices, but no one followed suit. LOF
executives expressed their opinion at a
board meeting that an 8% increase in flat
glass prices would “hold.” Two board
members met with a PPG executive one
week later. Two weeks after the meeting,
PPG raised its flat glass prices by
essentially the same amount that LOF
executives thought would “hold.” An
internal PPG memorandum, which might
have been produced prior to any other firm
announcing an increase in its flat glass
prices, states that other flat glass producers
were “concurrently raising prices the same
percentage.” The flat glass manufacturers
initially felt that the price increase had
gone successfully, but they later felt it was
unsuccessful because at least some of
them failed to “hold the line.”
3. The September-October 1992
Price Increase
A July 1, 1992 entry in the pocket
calendar for a Ford Regional Sales
Manager indicated that LOF was going to
announce a price increase on Sept. 22,
1992, effective Oct. 1, 1992, with
increases of 9% on clear and tinted glass
and 5% on “Eclipse” glass. App. 3628. A
few weeks later, on July 24, 1992, Joseph
Hudson—PPG’s Eastern Zone Manager
for Flat Glass Products, app. 5908—
noted: “No one, however, believes that
demand will be robust enough to support a
price increa se w ithout s ignificant
discipline on the part of all float
producers.” App. 5841.18
18 A fuller excerpt from the cited
portion of the record states:
Glaverbec appears to have
quieted down just a bit in
terms of new aggressive
pricing, seemingly for the
first time to be content with
current absurdly low prices.
Significantly, for the first
time, Glaverbec is reported
to have said that their tank is
sold out. All producers,
including PPG, continue to
r e a c t s e l e c t i v e l y t o
Glaverbec’s pricing and
attempt to protect selected
customers and selected
markets.
Discussion and rumors
surrounding a possible price
increase later in the year are
widespread in the market
place. No one, however,
believes that demand will be
robust enough to support a

-- 20 of 38 --

21
In September of 1992, however, the
competitors announced a 5-9% price
increase: AFG announced its price
increase on September 15, 1992, to be
effective October 1, app. 3545; Guardian
announced a price increase on September
21, to be effective October 9, app. 3547;
LOF announced on September 22, to be
effective October 1, app. 3476; and both
PPG and Ford announced their prices
increases on September 23, to be effective
October 12, app. 3475, 3549. On
September 24, AFG changed the effective
date of its price increase from October 1 to
October 12. App. 3550.
Between September 22 and
September 26, 1992, soon after the price
increases were announced, sen ior
executives from the various competitors
(PPG, Ford, Guardian, and Pilkington)
attended a “Glass Fair” meeting in
Germany. A Pilkington executive reported
the following in a letter to LOF’s Skeddle:
I was pleased to learn during
the Glass Fair that an
attempt to raise prices by
9% in the United States had
been initially supported by
a ll s u p p l ie r s i n t h e
marketplace. During the
Fair, I also had the
opportunity to meet with
Russ Ebeid of Guardian
who assured me that they
were fully supportive of the
price increase proposition.
Clearly, this could make
quite a difference to your
results if the price increase
can stick.
App. 3895. This excerpt was removed
from a later version of the letter. App.
7194.19
Finally, during the same time period
in September of 1992, PPG’s Hudson
reiterated his July comment that a price
increase would not be consistent with
market conditions. According to Hudson,
“[b]asic supply and demand do not support
this [1992] increase.” App. 5908.20
p r i c e i n c r e a s e
without significant
discipline on the part
of all float producers.
App. 5841.
19 Even if this statement does not
unambiguously tend to show that flat glass
producers agreed ahead of time to raise
prices, it at least tends to show that there
was an agreement to maintain higher
prices despite competitive demands (i.e. to
“make it stick”).
20 The full excerpt from the record
reads:
Certainly the hot topic on
the pricing front is the
industry increase announced
during September to be
effective in October. Basic
supply and demand do not

-- 21 of 38 --

22
To summarize: A Ford Regional
Sales Manager was aware of the precise
date when LOF was going to announce a
price increase almost three months ahead
of time, as well as the precise amounts of
the increase. A PPG executive believed
that the market would not support a price
increase. Nonetheless, PPG and its
competitors raised their prices by the same
amount, all within eight days of each
other. Soon after the price increases were
announced, executives from the various
flat glass producers attended a trade show
at which a executive from Guardian
assured an executive from Pilkington that
Guardian was “fully supportive of the
price increase proposition.”
4. The May-June 1993
Price Increase
In December of 1992, AFG’s Roger
Kennedy told LOF’s Roger Teat that AFG
was “considering another increase in May
or June [of 1993] of about 5 or 6%.” App.
3720, 3456, 3458-59. Teat reported this to
superiors at LOF with pricing authority.
App. 3721-23, 3456-58.21
LOF’s preliminary budget for fiscal
year 1994, dated January 21, 1993, refers
to a “May-June ‘93 price increase.” App.
6432. Similarly, an LOF “CEO’s Review
Report” from March 30, 1993 stated that
there would be “a U.S. domestic price
increase in the May-June timeframe.” App.
4031.22 And LOF’s revised budget (dated
support this increase,
so it will require
discipline on the part
o f e a c h
m a n u f a c t u r e r .
G l a v e r b e c ,
Guardian’s mirror
o p e r a t i o n s a n d
AFG’s distribution
arm are keys to the
s u c c e s s o f t h e
increase.
App. 5908.
21 Kennedy was an officer and
director of AFG. Although Teat did not
have pricing authority, his precise position
at LOF is unclear from the record.
22 A fuller excerpt stated:
A price increase has been
initiated in Eastern Canada
by PPG to be effective
March 22; 7% increase for
all clear, uncased product
(2.3mm through 6.0mm)
and a 9% increase for clear
c a s e d p r o d u c t . It is
anticipated that this increase
will be a lead into a U.S.
domestic price increase in
the May-June timeframe.
LOF is follow ing the
Canadian lead and including
heavy clear and tint product
with the increase.
App. 4031.

-- 22 of 38 --

23
April 5, 1993) also referred to a “May-
June price increase.” App. 4669.23
A few months later, on April 16,
1 9 9 3 , A F G f a x e d t o P P G a
“prepublication” copy of its May 17, 1993
5.5% price increase announcement (to be
effective in June). App. 6369.24 It also
faxed a copy to Guardian. App. 3711.
PPG announced a 5.5% price
increase on May 12, 1993, almost a week
before AFG was going to announce its
price increase. App. 5840. The rest of
PPG’s competitors quickly followed suit.
LOF, AFG, and Ford announced five days
later, on M ay 17, 1993. App. 3477, 3708,
3478. Guardian announced on May 19,
1993. App. 6105.
After the price increases went into
effect, John Musser (from PPG) reported
that “[t]he price increase of 5.5%
announced in early May by all major float
producers for an implementation on or
about June 7 has had the effect of
stabilizing prices.” App. 5906.25 In a
23 In addition, Ford’s business plan
(dated April 29, 1993) also referred to a
5% price increase. App. 3698. Under the
heading “Possible Opportunities and
Improvements,” it stated: “A 5% market
price increase spurred by cyclical recovery
with increased industry capacity utilization
would increase profits by almost $3
million.” App. 3697-98.
24 PPG urges that AFG did not send
the fax on April 16, 1993, arguing that the
most likely explanation for the date’s
appearance on the fax is that the fax
machine malfunctioned. PPG is free to
make this argument to a jury, but surely a
reasonable finder of fact could infer that
the date on the fax means that it was sent
on that day.
25 A fuller excerpt stated:
The price increase of 5.5%
announced in early May by
all major float producers for
an implementation on or
about June 7 has had the
effect of stabilizing prices.
Overall customer reaction to
the increase has been
favorable, particularly in the
mirror and distributor/
fabricator segments. Sash
accounts who are not price
protected are resisting the
increased [sic], to a degree.
The modest amount of the
increase, the perceived cost
justification for the increase,
and the firmness to date of
all f lo a t p r o d u ce r s,
however, are all positive
factors which project that
the announced prices will
hold. The highest degree of
uncertainty resides on the
West Coast, which has the
lowest level of industry
capacity utilization.
App. 5906.

-- 23 of 38 --

24
similar vein, an LOF report (dated June 21,
1993) stated: “Price increase is in effect
from all major manufacturers. We are
monitoring the market to make sure that all
stick to the rules and will report any and
all information we hear about.” App. 3732.
PPG’s Central Zone Manager,
Thomas Merlitti, stated on June 25, 1993
that “[t]he price increase implemented in
June remains firmly in place as all major
flat glass producers are holding firm.”
App. 3507. And Hudson of PPG reported:
“The increase which was effective June 7
has been a nearly complete success.” App.
5794.
To summarize: AFG and LOF
discussed a May-June 1993 price increase
during the preceding December, and LOF
accounted for such an increase in its
forthcoming budget. In April, AFG faxed
to PPG a copy of the increase it planned to
announce on May 17. PPG announced an
identical increase on May 12, and the rest
of the flat glass producers followed with
identical price increases. LOF was
“monitoring the market to make sure that
all stick to the rules.” The flat glass
producers all “held firm,” and executives
from the firms generally considered the
price increase a “success.”
5. Analytical Summary
The above evidence is sufficient to
provide a finder of fact with a basis to
reasonably conclude that PPG agreed with
the other flat glass producers to raise
prices. Put differently, there is “evidence
that would enable a reasonable jury to
reject the hypothesis that the defendants
foreswore price competition without
actually agreeing to do so.” In re High
Fructose Corn Syrup, 295 F.3d at 661
(citing Matsushita, 475 U.S. at 488).
First, there is the evidence—
including LOF’s assertion that there was
an “across the board” agreement to
increase prices—that PPG’s competitors
entered into an agreement. And viewed
collectively and holistically, there is
evidence tending to show that PPG was a
party to an agreement to raise the price of
flat glass on three occasions.
PPG urges us to take a different
approach. It appears to propose that we
consider each individual piece of evidence
and disregard it if we could feasibly
interpret it as consistent with the absence
of an agreement to raise prices. With
regard to the announcement that stated “all
oth er major glass suppliers are
concurrently raising prices by the same
percentage,” for example, PPG argues that
the “facts suggest that the notation was
placed on the announcement after all glass
p r o d u c e r s h a d i s s u e d t h e i r
announcements.” PPG Br. 25 (emphasis
added). Similarly, PPG contends that the
“most likely explanation” for the date that
appears on an AFG price announcement
found in PPG’s files “is that the date stamp
mechanism malfunctioned.” PPG Br. 43.
We echo the Seventh Circuit’s admonition
in In re High Fructose Corn Syrup that the
“statement of facts in the defendants’ brief
combines a recital of the facts favorable to

-- 24 of 38 --

25
the defendants with an interpretation
favorable to them of the remaining
evidence; and that is the character of a trial
brief rather than of a brief defending a
grant of summary judgment.” 295 F.3d at
655. PPG’s arguments are well-suited for
an argument before a jury, but they are
irrelevant to our consideration in the
present posture of this case.
Alternatively, PPG appears to
contend that we should disregard certain
categories of evidence, from various
periods of time, because such evidence
does not in isolation lead inexorably to the
conclusion that PPG entered into an
agreement. Tr. of Oral Argument 25. PPG
argues, for example, that competitors’
possession of each others’ price increase
announcements or meetings among
competitors’ executives cannot suffice to
preclude summary judgment. To be sure,
the mere presence of such evidence does
not require a court to deny summary
judgment. In In re Baby Food, we
observed that “[w]e do not believe that the
mere p ossession o f com petitiv e
memoranda is evidence of concerted
action to fix prices.” 166 F.3d at 126. But
the price-exchange evidence in In re Baby
Food was far less compelling than in this
case. The In re Baby Food plaintiffs relied
upon testimony of competitors’ price
information gathered by low-level sales
employees in unsystematic fashion.
Plaintiffs pointed to a few competitors’
memos in sales files, but there was no
evidence of how the documents got there.
Additional evidence documented some
awareness of competitors’ price increase
plans. Notably, these scraps of evidence of
foreknowledge were not correlated to any
actual concerted price increase activity
among all competitors.
We made two salient points in
reviewing this evidence and rejecting the
inference of agreement. First, we noted
that price discussion among low level sales
people has little probative weight; we
distinguished the far different situation
where upper level executives have secret
conversations about price. Id. at 125 & n.8
(“Evidence of sporadic exchanges of shop
talk among field sales representatives who
lack pricing authority is insufficient to
survive summary judgment.”). Second, and
more important, we emphasized that “there
must be evidence that the exchanges of
information had an impact on pricing
decisions.” Id. at 125. The reason for this
requirement is that exchanges of price
information may be compatible with
competition, because they may “‘increase
economic efficiency and render markets
more, rather than less, competitive.’” Id.
(quoting United States v. United States
Gypsum Co., 438 U.S. 422, 443 n.16
(1978)). The In re Baby Food plaintiffs
simply could not correlate information
exchanges with specific collusive
behavior. Rather, they made the more
amorphous claim that the exchanges of
information “impacted the market as a
whole.” Id.
The exchanges of information here,
by contrast, are qualitatively different from
those in In re Baby Food, particularly
when considered in the context of other

-- 25 of 38 --

26
evidence. First, there is evidence tending
to show that the exchanges occurred at a
higher level of the flat glass producers’
structural hierarchy. Second, and more
importantly, a finder of fact could
reasonably infer that the flat glass
producers used the information to
implement collusive price increases; that
is, “the exchanges of information had an
impact on pricing decisions.” A court must
look to the evidence as a whole and
consider any single piece of evidence in
the context of other evidence. See Big
Apple BMW, Inc. v. BMW of North
America, Inc., 974 F.2d 1358, 1364-65 (3d
Cir. 1992), cited in In re Baby Food, 166
F.3d at 124. So, for example, there is
evidence that AFG faxed to PPG a copy of
a planned future increase that it had not
announced publicly, PPG announced an
identical increase before AFG, and the rest
of the flat glass producers followed with
identical price increases. It would take no
stretch of the imagination for a fact finder
to infer from this evidence—one piece of
which is PPG’s possession of a
“competitive memoranda”—that PPG
engaged in concerted action to fix prices.
In sum, here the exchanges of
information are more tightly linked with
concerted behavior and therefore they
appear more purposive. Several of the key
documents emphasize that the relevant
price increases were not economically
justified or supportable, but required
competitors to hold the line. Others
suggest not just foreknowledge of a single
competitor’s pricing plans, but of the plans
of multiple competitors. Predictions of
price behavior were followed by actual
price changes. The inference of concerted
rather than interdependent action is
therefore stronger. In other words, these
facts take the exchanges of pricing
information outside the realm of “mere
possession.” In re Baby Food, 166 F.3d at
126.
We need not speculate as to
whether something less than the evidence
in this record—two rate increases, for
instance, rather than three— would suffice
to deny summary judgment. The evidence
here, in its totality, is sufficient to go to a
jury.
B. Automotive Replacement Glass
As described above, PPG and other
automotive replacement glass producers
supplied NAGS with their truckload list
prices for various automotive replacement
glass products. NAGS would select a
particular truckload price—usually the
truckload price of the identical OEM glass
product—to devise recommended retail
prices for the products. NAGS devised the
recommended price by using a particular
“multiplier” for each type of product.26
The glass producers knew the multipliers
NAGS used, and were able to calculate
backwards to the truckload price that
NAGS had utilized. The producers would
then align their truckload list prices with
26 The multiplier for domestic
windshields, for example, was 4.06. App.
2980.

-- 26 of 38 --

27
the price that NAGS had used. As a result,
the automotive replacement glass
producers often increased their prices in
parallel fashion.27
Plaintiffs argue that the evidence
shows that PPG and other automotive
replacement glass producers agreed to
raise their prices. They provide evidence
that although it was against PPG’s official
policy, PPG provided its truckload pricing
information to NAGS. Plaintiffs also refer
to the NAGS website, which at one point
stated: “[M]anufacturers were in conflict
over their published list prices. As a
neutral party NAGS was asked to assign
list prices to NAGS part numbers,
establishing the NAGS List Price.” App.
6444-45.28 In addition, a chart that LOF
devised depicts the process. It indicates
that producers gave their truckload prices
to NAGS, NAGS selected a particular
truckload price, the producers issued a
“new pricing schedule adjusted to
NAGS,” and as a result “industry pricing
stabilize[d].” App. 4939.
We understand why the NAGS
Calculator would raise suspicion in
plaintiffs’ minds, and why plaintiffs would
seek discovery regarding PPG’s use of the
calculator. Cf. Areeda, supra, ¶ 1435g, at
264-65 (discussing the use of “pricing
manuals”). But publication of pricing
information can have a pro-competitive
effect. As we note above, we should
therefore hesitate to rest on inference of
improper collusion from this ambiguous,
or even pro-competitive, fact. See, e.g., In
re Baby Food, 166 F.3d at 126; Petruzzi’s,
998 F.2d at 1232. After conducting
discovery, plaintiffs have failed to adduce
sufficient evidence to create a genuine
issue of material fact. First, there is no
evidence that PPG or any other
automotive replacement glass producer
exerted influence over the truckload prices
that NAGS selected to formulate
recommended prices. And there is no
27 PPG, Ford and LOF increased
the price of windshields by 7% and
tempered parts by 8%, for example, in
February-March of 1992. App. 5913,
5917, 7184. Similarly, in January-
February of 1992 they increased
windshield prices by 9% and tempered
parts by 10%. App. 4899, 7192, 7187.
28 A fuller excerpt states:
In the 1950s, manufacturers
were in conflict over their
published list prices. As a
neutral party NAGS was
asked to assign list prices to
NAGS part numbers,
establishing the NAGS List
Price. These prices reflected
the industry practice of
discounting and were based
on manufacturers’ truckload
prices. NAGS started
publishing the part numbers
with prices, establishing the
‘NAGS calculator’.
App. 6444-45 (emphasis added).

-- 27 of 38 --

28
evidence—unlike the evidence we
described above regarding flat glass list
prices—that the automotive replacement
glass manufacturers agreed to adjust their
list prices according to the NAGS
recommended price. We will therefore
affirm summary judgment on this claim.
C. Evidentiary Rulings
The District Court excluded several
categories of evidence before it decided
PPG’s motions for summary judgment.
Plaintiffs appeal from four of the District
Court’s evidentiary determinations. We
address them in turn.29
1. Fifth Amendment
When plaintiffs sought to depose
Skeddle and Bryant—the former LOF
executives who were charged with crimes
and who alleged that LOF engaged in
illegal antitrust activity—they both
asserted their Fifth Amendment privilege
against self incrimination. The District
Court denied plaintiffs’ motion in which
they urged the Court to compel Skeddle
and Bryant to testify. Plaintiffs now
challenge the District Court’s ruling on
appe al. We review the Co urt’s
determination for an abuse of discretion.
See United States v. Castro, 129 F.3d 226,
229 (1st Cir. 1997).
As a general matter, a court should
allow a witness to invoke his Fifth
Amendment privilege only if the hazard of
incrimination is “substantial and ‘real,’
and not merely trifling or imaginary.”
United States v. Apfelbaum, 445 U.S. 115,
128 (1980) (citation omitted). Yet “the
trial judge should order the witness to
answer questions only if it is perfectly
clear, from a careful consideration of all
the circumstances in the case that the
answer cannot possibly tend to incriminate
the witness.” United States v. Washington,
318 F.3d 845, 856 (8th Cir.), cert. denied,
124 S. Ct. 251 (2003) (internal quotations
and citations omitted); see also United
States v. Yurasovich, 580 F.2d 1212,
1215-16 (3d Cir. 1978) (“To support a
contempt citation for a refusal to testify on
Fifth Amendment grounds . . . it must be
‘Perfectly clear from a care ful
consideration of all the circumstances in
the case, that the witness (who invokes the
privilege) is mistaken, and that the
answer(s) cannot Possibly have such a
tendency to incriminate.’”).
Plaintiffs argue that the Court erred
because (1) all relevant statutes of
limitations have run; and (2) the relevant
prosecutorial authorities have stated that
they do not intend to bring criminal
charges against Skeddle or Bryant. It is
irrelevant, however, that prosecutorial
29 We do not address the District
Court’s other evidentiary rulings, such as
its decision to exclude the transcript of
Skeddle’s grand jury testimony. Plaintiffs
opine that the District Court erred when it
excluded the testimony, but they do not
appeal from that decision. Plaintiffs’ Br.
18.

-- 28 of 38 --

29
authorities have stated that they do not
intend to prosecute Skeddle or Bryant. See
Matter of Special Federal Grand Jury, 819
F.2d 56, 58 (3d Cir. 1987) (“[A] promise
by the government not to use the testimony
to be compelled, even if approved by a
court, does not strip the recipient of the
protection of that privilege.”). And
Skeddle and Bryant have sufficiently
refuted plaintiffs’ statute of limitations
argument. To be sure,“if a prosecution for
a crime, concerning which the witness is
interrogated, is barred by the statute of
limitations, he is compellable to answer.”
Brown v. Walker, 161 U.S. 591, 598
(1896). But, contrary to plaintiffs’
assertion, Skeddle and Bryant have
identified several state statute of
limitations that have not run. In Michigan,
for example, a defendant’s absence from
the state tolls the statute of limitation for
certain of the state’s antitrust laws. See
Mich. Comp. Laws. Ann. §§ 445.781,
767.24(5). The District Court did not
abuse its discretion by declining to compel
Skeddle and Bryant to testify.
2. Skeddle’s Notes
Over the course of the litigation,
plaintiffs obtained a large collection of
Ronald Skeddle’s handwritten notes. The
notes fall into two general categories:
notes that LOF provided to plaintiffs
during discovery and notes that the DOJ
produced to plaintiffs pursuant to an order
of the District Court. App. 10746, 11154.
Skeddle originally provided the latter
notes, which the parties have come to call
the “Queen’s File,” to a grand jury
empaneled in the spring of 1996 to
investigate Skeddle’s (and others)
allegations of wrongdoing in the flat glass
industry.30
PPG filed two separate in limine
motions seeking to exclude both
categories of notes, and the District Court
granted its motions because it determined
that the notes contain “multiple levels of
hearsay” and did not fall within any
exception to the hearsay rule. App. 47-48,
56-58. “[W]e review the district court's
decisions to admit or exclude evidence for
abuse of discretion, although our review is
plenary as to the interpretation or
application of a legal standard underlying
such a decision.” Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1293 (3d Cir.
1997) (citations omitted).
a. Non-Queen’s File Notes
Plaintiffs argue that many portions
of Skeddle’s notes tend to support their
contentions that PPG agreed with its
competitors to increase prices on at least
two of the three occasions we discussed
above. With respect to the June-July 1991
price increase, plaintiffs reference a May
31, 1991 note that states: “Glen
30 There is apparently some amount
of overlap between the two categories of
notes: LOF had already produced a
portion of the notes that plaintiffs also
obtained as part of the Queen’s File. App.
11154 n.3.

-- 29 of 38 --

30
[Nightingale] heard that Glaverbec wants
to move upwards in N.E. Reg’s.” App.
4567. Similarly, a note that plaintiffs argue
Skeddle wrote no later than May of 1991
states that Jim Collins, a PPG Regional
Sales Manager, “mentioned that PPG is
looking at the possibility of an inc this
summer.” App. 3938.
With regard to the September-
October 1992 price increase, plaintiffs
refer to notes that purportedly memorialize
conversations Skeddle had with Glen
Nightingale, of Pilkington. First, a note
dated February 6, 1992 provides: “Clearly
Glen has had discussions w AFG,
Guardian, & probably indirectly w PPG
(crystal tower) re price increases, and is
asking me now to supply him info so that
he can initiate more detailed discussions
with his contacts.” App. 3877. And a note
that plaintiffs contend pertains to a
meeting Ske ddle h ad w ith G len
Nightingale on April 29, 1992 states:
Glen indicated he would
make contacts w AFG and
Glaverbel/Glaverbec to see
if he could get them to agree
to come off their silly low
prices and if he could
initiate a general price
increase w/in the next 2
months.
He indicated he would get
back to me to indicate his
findings/effect following his
calls.
App. 4581. Another note also ostensibly
memorializing a conversation Skeddle had
with Glen Nightingale states that
Nightingale met with AFG’s Dee
Hubbard. The note mentions an
“incremental increase” and states that
“AFG will lead—before Labor Day.” App.
3891.
Similarly, a note from a meeting
Skeddle had with LOF board member
Tomoaki Abe and dated November 17,
1992 contains the notation: “Mtgs. w PPG,
Guardian re lic’g, prices, etc.” App. 10602.
Finally, a note that plaintiffs contend
memorializes a July 13, 1992 conversation
with Nightingale states:
Glen then related his
information on N orth
American flat glass pricing
— the info came from
Hubbard of AFG, and the
top guy at Glaverbel (Asahi)
who control Glaverbec in
Canada, [illegible] controls
AFG in the states.
The indication is that new
“ t a rg e t s ” h a v e b e e n
established for AFG and
Glaverbec in Canada @
~ 7 % a b o v e r e c e n t
experience—letters will be
forthcoming to the general
mkt place explaining new
prices as follows:
[chart omitted]

-- 30 of 38 --

31
These prices should go into
effect 17th July.
Glen then related that
Hubbard & he have “talked”
and have together convinced
PPG to take the lead in
putting up the price by ~7%
with letter to go out in Sept.
92, to take effect Oct. 1,
1992—with PPG taking the
lead.
App. 3893.
Plaintiffs argue that these
statements are admissible because they are
statements of coconspirators under Federal
Rule of Evidence 801(d)(2)(E) and
therefore not hearsay. Alternatively, they
argue that even if the statements are
hearsay they are admissible as statements
against interest under Federal Rule of
Evidence 804(b)(3).
We first consider whether the
District Court erred in concluding that the
statements were not admissible as against
interest under Rule 804(b)(3). A hearsay
statement is nonetheless admissible if (1)
“the declarant is unavailable as a witness,”
United States v. Boyce, 849 F.2d 833, 836
(3d Cir. 1988); (2) “the statement is so far
contrary to his pecuniary, proprietary or
penal interest that ‘a reasonable person in
the declarant's position would not have
made the statement unless believing it to
be true,’” id. (quoting Fed. R. Evid.
804(b)(3)); (3) “the trustworthiness and
reliability of the statemen t [is]
corroborated by the ‘to tal ity o f
circumstances’ in the case,” id.; and (4) the
declarant had personal knowledge (i.e., he
perceived the facts to which the statement
relates), see United States v. Ammar, 714
F.2d 238, 254 (3d Cir. 1983); 5 Jack B.
Weinstein et al., Weinstein’s Federal
Evidence § 804.06[4] (2d ed. 2003).31 The
31 Federal Rule of Evidence
804(b)(3) provides:
(b) Hearsay exceptions. The
following are not excluded
by the hearsay rule if the
declarant is unavailable as a
witness:
. . . .
(3) Statement against
interest. A statement which
was at the time of its
making so far contrary to
the declarant's pecuniary or
proprietary interest, or so far
tended to subject the
declarant to civil or criminal
liability, or to render invalid
a claim by the declarant
against another, that a
reasonable person in the
declarant's position would
not have made the statement
unless believing it to be
true. A statement tending to
expose the declarant to
criminal liability and
offered to exculpate the
accused is not admissible
u n l e ss c o r r o b o r a t i n g

-- 31 of 38 --

32
second and third requirements are
“somewhat redundant” and often require
“‘a sensitive analysis of the circumstances
in which the statement was made and the
precise nature of the statement.’” Boyce,
849 F.2d at 836 (quoting United States v.
Palumbo, 639 F.2d 123, 127 (3d Cir.
1981)); see also United States v. Moses,
148 F.3d 277, 280 (3d Cir. 1998) (“This
determination must be made ‘by viewing
[the statement] in context’ and ‘in light of
all the surrounding circumstances.’”)
(quoting Williamson v. United States, 512
U.S. 594, 603-604 (1994)).
Here, the District Court concluded
t h a t S k e d d l e’s state m e n t s w e r e
inadmissible because they “have not been
corroborated by the totality of the
circumstances.” App. 47. Because this was
the total of the District Court’s analysis,
the precise basis for this conclusion is
unclear. In its in limine motion before the
District Court, PPG appears to have
offered three reasons why the totality of
the circumstances do not corroborate
Skeddle’s statements: (1) actual events did
not occur precisely as the notes indicated
they would (e.g., PPG did not “lead” the
September 1992 price increase); (2)
Skeddle’s notes tend to implicate others
besides himself; and (3) Skeddle may not
have written the notes contemporaneously
with the events he described in them. App.
10748-50.
The first two factors do not
sufficiently impugn Skeddle’s statements.
To the contrary, discrepancies between
Skeddle’s statements and later actual
events could tend to reinforce their
veracity; statements that exactly mirrored
what occurred would arguably be more
suspect. And there is no per se rule that
statements implicating another person in
misconduct are not against the interest of
the declarant. See Moses, 148 F.3d at 280.
We do not agree with PPG’s assertion that
the statements, which relate the
inculpatory statements of his superiors
(such as Nightingale), do not also
inculpate Skeddle. Skeddle was the
President of LOF at the time of the alleged
conspiracy. Discussions to increase prices
and Skeddle’s knowledge of those
discussions blanket him with antitrust
liability. Indeed, such liability likely forms
the basis for Skeddle’s invocation of his
Fifth Amendment privilege against self
incrimination.
We agree, however, that a finding
that Skeddle’s notes were not
contemporaneous would support a
conclusion that the statements are not
reliable or corroborated by the
circumstances clearly
i n d i c a t e t h e
trustworthiness of
the statement.
Fed. R. Evid. 804(b)(3). We note that the
Confrontation Clause raises some
additional issues about admissibility of
such testimony in a criminal case, but
those concerns are irrelevant in this civil
case. See Crawford v. Washington, 123 S.
Ct. 1354 (2004).

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33
circumstances. Skeddle left LOF under a
cloud o f mutual disaffectio n.
Consequently, documenting LOF
wrongdoing during a time when LOF was
alleging that Skeddle himself had engaged
in wrongdoing would tend to impugn
Skeddle’s motives and therefore also the
reliability of the statements. But it is not
clear that the District Court excluded
Skeddle’s notes because it found that they
were not contemporaneous. Moreover, it is
not clear that the record supports such a
conclusion; on their face, many of the
notes give no indication that they were ex
post fabrications.
The District Court’s summary
disposition of PPG’s in limine motion
hinders our ability to determine whether it
abused its discretion. Cf. Becker v. ARCO
Chemical Co., 207 F.3d 176, 181 (3d Cir.
2000) (“Where, however, the district court
fails to explain its grounds for denying a
Rule 403 objection and its reasons for
doing so are not otherwise apparent from
the record, there is no way to review its
discretion.”). Since we conclude that a
jury could find an agreement existed even
absent Skeddle’s notes and we would
remand on that basis alone, we believe the
best course is to allow the District Court to
consider these evidentiary matters in the
first instance. We will therefore remand
the District Court’s determination that
Skeddle’s statements were not against self
interest so that the Court can consider its
rulings in light of our decision and more
fully explain any bases for its rulings.32
Similarly, we will also remand the
District Court’s determination that the
statements in Skeddle’s notes were not
statements of co-conspirators. “In order for
an out-of-court statement to be admissible
pursuant to Rule 801(d)(2)(E), the district
court must find by a preponderance of the
evidence that: (1) a conspiracy existed; (2)
the declarant and the party against whom
the statement is offered were members of
the conspiracy; (3) the statement was made
in the course of the conspiracy; and (4) the
statement was made in furtherance of the
conspiracy.” United States v. Ellis, 156
32 In this regard, the District Court
should determine whether, because the
statements at issue were diary entries,
Skeddle believed that they would be seen
by anyone. This may bear on whether they
qualify as statements against interest.
See Zenith Radio Corp. v. Matsushita
Electric Industrial Co., 505 F. Supp. 1190,
1259-60 (E.D. Pa. 1981), issue aff’d In re
Japanese Electronic Products Antitrust
Litigation, 723 F.2d 238, 300 (3d Cir.
1983), rev’d on other grounds sub. nom
Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986).
We do not categorically hold that diary
entries cannot satisfy the requirements of
Rule 804(b)(3), see Walker v. Lockhart,
763 F.2d 942, 951 n.18 (8th Cir. 1985) (en
banc), but we do believe that a searching
inquiry is appropriate here, In re Japanese
Electronic Products, 723 F.2d at 300.

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34
F.3d 493, 496 (3d Cir. 1998).33
Here, the District Court determined
that plaintiffs had not satisfied the second
requirement. It concluded that the
statements in Skeddle’s notes were not
admissible as co-conspirator statements
because “plaintiffs have failed to adduce
sufficient evidence that PPG was a co-
conspirator in the alleged price-fixing
conspiracy.” App. 48.34 In other words,
although the Court concluded that there
was evidence that a conspiracy existed, see
app. 46, it found that there was insufficient
evidence that PPG was a party to the
conspiracy.
It was plaintiffs’ burden to show by
a preponderance of the evidence that the
statements in Skeddle’s notes were made
in the course of and in furtherance of a
conspiracy of which the declarant and PPG
were members. See United States v.
McGlory, 968 F.2d 309, 334 (3d Cir.
1992) (citing Bourjaily v. United States,
483 U.S. 171, 175 (1987)); 5 Jack B.
Weinstein et al., Weinstein’s Federal
Evidence § 801.34[6][a] (2d ed. 2003).
And it was the District Court’s role to
determine whether plaintiffs satisfied their
burden. See Bourjaily, 483 U.S. at 175;
Ammar, 714 F.2d at 247 n.5. In making
this factual determination, a district court
is not bound by the rules of evidence. See
Bourjaily, 483 U.S. at 178-79; Fed. R.
Evid. 104(a). Thus a district court can
consider hearsay and other inadmissible
evidence. See McGlory, 968 F.2d at 334.
And it must consider the content of the
alleged coconspirator statement as well,
although the statements require
independent corroboration. See Fed. R.
Evid. 801(d)(2)(E) (“The contents of the
statement shall be considered but are not
alone sufficient to establish . . . the
existence of the conspiracy and the
participation therein of the declarant and
the party against whom the statement is
offered . . . .”).
The Court’s summary disposition
again hampers our review of its decision
for an abuse of discretion, however, which
is the standard of review we must apply to
its Rule 801(d)(2)(E) determinations. See,
e.g., United States v. Local 560 (I.B.T.),
974 F.2d 315, 337 (1992). Insofar as the
Court based its determination on a
conclusion that there was insufficient
33 There is no requirement that the
declarant be speaking from personal
knowledge. See United States v. Ammar,
714 F.2d 238, 254 (3d Cir. 1983); 5 Jack
B. Weinstein et al., Weinstein’s Federal
Evidence § 801.23[2] (2d ed. 2003).
34 The District Court characterized
the admissibility of coconspirator
statements as an “exception to the hearsay
rule.” Rules 803 and 804 set forth
exceptions to the hearsay rule; that is, they
explain when statements are admissible
even though they qualify as hearsay. Rule
801(d), however, sets forth statements that
are admissible because they do not
constitute hearsay, including statements
“by a coconspirator of a party during the
course and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(E).

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35
evidence from which a jury could
conclude that PPG entered into an
agreement to fix prices, the District Court
erred for the reasons we set forth above.
But simply because a jury could find by a
preponderance of the evidence that PPG
entered into a conspiracy, it is not the case
that the District Court must find that
plaintiffs showed by a preponderance of
the evidence that PPG entered into an
agreement. Any particular factual
determination requires making a number
of more particularized factual
determinations and weighing the relevant
importance of those determinations. And
two factfinders could feasibly reach
different conclusion, especially under a
preponderance of the evidence standard.
To be sure, however, “the Federal Rules
of Evidence are to be liberally construed
in favor of admissibility.” United States v.
Pelullo, 964 F.2d 193, 204 (3d Cir. 1992).
Because we will remand plaintiffs’
flat glass price fixing claim for further
proceedings, we again conclude that the
best course is to remand the District
Court’s determination that the statements
in Skeddle’s notes were not coconspirator
statements. See In re Japanese Electronics
Products Antitrust Litigation, 723 F.2d
238, 263 (3d Cir. 1983) (remanding Rule
801(2)(E) determination to be
reconsidered), rev’d on other grounds sub.
nom. Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986).
Thus the District Court can consider
whether the statements in Skeddle’s notes
are coconspirator statements with the
benefit of our discussion of the evidence
tending to implicate PPG in a price-fixing
conspiracy, and can further explain any
bases it might have for its reasoning.35
Finally, we note that many of the
notes contain multiple levels of hearsay.
See, e.g., Carden v. Westinghouse Elec.
Corp., 850 F.2d 996, 1001-02 (3d Cir.
1988); Fed. R. Evid. 805. One note states,
for example, that Nightingale “related”
that he and an AFG executive “convinced
PPG to take the lead in putting up the price
by ~7% with letter to go out in Sept. 92, to
take effect Oct. 1, 1992—with PPG taking
the lead.” App. 3893. The note itself
(Skeddle’s statement) and Nightingale’s
assertion that he convinced PPG to take
the lead in increasing prices are both out-
of-court statements that plaintiffs seek to
use to prove the truth of the matter
asserted. Either or both might be
admissible as statements of coconspirators
as well as statements against interest.
Again, we think the District Court should
make these determinations in the first
instance, taking into account our
35 PPG argues that the District
Court concluded that the statements in
Skeddle’s notes were not in furtherance of
any conspiracy, ostensibly because—as
PPG argues—Skeddle did not create the
notes at the same time as the events he
purports to describe in them. But nothing
in the Court’s decision indicates that this
was a basis for its determination that the
statements were inadmissible. The District
Court will surely consider PPG’s
arguments in this regard on remand.

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36
discussion in this opinion.
b. Queen’s File Notes
The District Court concluded that
the statements in the Queen’s File notes,
like the statements in the other Skeddle
notes, were not ad missible as
coconspirator statements because
“plaintiffs have failed to adduce sufficient
evidence that PPG was a co-conspirator in
the alleged price-fixing conspiracy.” App.
57. It also concluded that the statements
were hearsay and the Queen’s File was not
admissible under the statement against
interest exception because “the statements
contained therein are not contrary to
Skeddle’s pecuniary or penal interest” and
because “the documents’ trustworthiness
and reliability are questionable given the
totality of the circumstances.” App. 57.36
Since this was the sum of the
District Court’s reasoning, we turn to
PPG’s arguments before the District Court
to discern the bases for the Court’s
decision. Cf. United States v .
Himmelwright, 42 F.3d 777, 781 (3d Cir.
1994) (looking to whether bases for
district court’s decision was “apparent
from the record” where the court did not
explain the grounds for its decision). PPG
argued that most of the notes in the
Queen’s File “were written after Mr.
Skeddle’s termination as chief executive
officer of LOF on May 10, 1993, when he,
Edward Bryant (then LOF’s head of
manufacturing operations), and Darryl
Costin (then LOF’s head of technical
operations) were fired amidst allegations
of actionable self-dealing.” App. 11154.
Many of the notes appear, on their face, to
support PPG’s contention. They are
written in the third-person, for example,
and they refer to events that post-date
Skeddle’s termination. See, e.g., Supp.
App. 437. One note, for instance, refers to
the “summer of 1993” in the past tense.
App. 11154.
If the District Court concluded that
the notes were not contemporaneous, it
could have concluded that the statements
contained therein were not in furtherance
of a conspiracy or corroborated by the
totality of the circumstances; that is, it
could have concluded that the statements
were not admissible as coconspirator
statements or statements against interest. If
we could conclude that the District Court
excluded all the Queen’s File notes on that
basis, we would affirm the District Court’s
decision. But PPG concedes that not all
the Queen’s File notes appear to be non-
contemporaneous. See PPG Br. 94, Tr. of
Oral Argument 46. We will therefore
36 The District Court also concluded
that the Queen’s File and non-Queen’s
File notes did not fall within the business
records exception of Rule 803(6). App.
47, 56-57. And the Court found that the
“Queen’s File does not qualify as an
admission by a party opponent under
Rules 801(d)(2)(A), (B), (C), or (D).”
App. 57-58. Plaintiffs do not argue that
the District Court erred in these
determinations, and we therefore do not
address them.

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37
remand the District Court’s decision to
exclude the Queen’s File notes for the
same reasons we remand its determination
to exclude Skeddle’s other notes. We
think it best for the District Court to have
the opportunity to make these evidentiary
determinations with the benefit of our
discussion here.
3. Evidence Concerning
OEM Glass
As we explained above, PPG and
others fabricated flat glass into products
for use in automobiles. Some of those
products—called “original equipment
m a n u f a c t u r e r ” g l a s s ( “ O E M
glass”)—were fabricated for use in new
automobiles. Others were fabricated for
use as automotive replacement parts. The
latter products—called automotive
replacement glass—are the same as OEM
glass products, but the markets for the two
are distinct.
In order to prove that PPG
conspired to fix the price of flat glass,
plaintiffs offered evidence that they argue
shows that PPG conspired with LOF to fix
the price of OEM glass products.
Specifically, plaintiffs argue that meetings
and conversations occurred between
Edw ard Bryant— w ho was LOF’s
Executive Vice President in charge of the
firm’s flat glass, automotive replacement
glass, and OEM businesses—and Frank
Archinaco (the head of PPG’s automotive
replacement glass and OEM businesses).
These meetings and discussions were
private and occurred, according to
plaintiffs, at “opportune times” for price
fixing.
The District Court concluded that
while the evidence constituted “other bad
acts” evidence under Federal Rule of
Evidence Rule 404(b), it was admissible
for other acceptable purposes (e.g. motive,
opportunity, or intent). Yet the Court
excluded the evidence because it
determine that the evidence’s probative
value was substantially outweighed by the
danger of unfair prejudice. App. 54-55.
This is a standard Rule 403 balance, which
we review with “substantial deference.”
McQueeney v. Wilmington Trust Co., 779
F.2d 916, 922 (3d Cir. 1985).37
While evidence that PPG and LOF
conspired together in the OEM market
would be relevant to plaintiffs’ claim that
PPG also conspired to fix prices in the
market for flat glass, see In re High
Fructose Corn Syrup, 295 F.3d at 661
(noting that defendant conceded to having
37 PPG also argues that we should
affirm the District Court’s decision
because a reasonable jury could not
conclude that PPG committed the “other
bad acts”—conspiring in the OEM
market—that plaintiffs argue tend to show
that PPG conspired to fix the prices of flat
glass. See Huddleston v. United States,
485 U.S. 681, 689 (1988). The District
Court did not exclude the OEM glass
evidence on that basis, however, and we
need not address PPG’s argument since
we affirm on other grounds.

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38
fixed prices on related products during the
same time frame as the alleged
conspiracy), Areeda, supra, ¶ 1421, at 145,
plaintiffs’ evidence here is not particularly
probative of any OEM glass conspiracy.
The weakness of this evidence also
mitigates any danger of unfair prejudice.
But we cannot say that the District Court
abused its discretion in weighing these
countervailing considerations, and we will
therefore affirm the Court’s decision to
exclude the OEM glass evidence.
III. Conclusion
We will affirm the District Court’s
decision granting summary judgment on
plaintiffs’ claim that PPG conspired to fix
the prices of automotive replacement
glass. We conclude, however, that there is
sufficient evidence in the record—not
taking into account evidence the District
Court excluded— from which a reasonable
jury could find that PPG conspired to fix
the prices of flat glass. We will therefore
reverse the District Court’s judgment and
remand for further proceedings. In
addition, we will affirm the District
Court’s decisions declining to compel
Skeddle and Bryant to testify and
excluding evidence regarding OEM glass.
But we will remand the Court’s decision to
exclude Skeddle’s notes so that the Court
can consider its ruling in light of our
opinion here and have a further
opportunity to explain the bases for its
decisions.

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