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    1494 “lacked visibility and ... (was) living in an uncertain economic environment so... [it ‘was) approaching the next six months with a very conservative outlook and conservative ‘management posture.” MIPS predicted that its technology licensing fees would “remain fairly flat on a year to year basis.” MIPS, however, did not disclose to the market that it was recognizing revenue before the terms of certain contracts had been negotiated, be- fore the deliverables were shipped, and be- fore certain contingencies were satisfied. In fact, the opposite was true. Defendants rep- resented in its Form 10-K that “technology revenue is recognized upon the completion of contract requirements.” Defendants also contend that Ludvigson ‘made cautionary statoments during the April 25, 1991 conference call. Ludvigson's state- ‘ments, however, were too general to trigger the “hespesks caution” doctrine, Ludvigson simply stated that second quarter technology revenue was expected to “decline,” that gross margin would be “flat to slightly down,” and that technology revenue for 1991 “looked a Jot like last year” but “he would be hesitant to put a total number on loss of revenue.” Although these statements referred to MIPS’ ‘projections, there is no evidence that defen- ants disclosed the information that. was re- lied upon to arrive at the internal forecast of a $ millon loss. If anything, Ludvigson’s “cautionary” statements led the analysts to believe that the second quarter earnings would be similar to the first quarter earn- ings. II. Costs ‘The plaintiffs also appeal the district court's order awarding costs to defendants, Because we have reversed in part the district court's grant of summary judgment, we find that plaintiffs’ appoal of the district court's order awarding costs is now moot. CONCLUSION As set forth above, we affirm the grant of summary judgment in favor of defendants Bennion and Jobe and reverse the grant of summary judgment in favor of defendants MIPS, Boesenberg, Miller, and Ludvigson. Beeause of this ruling, we find plaintift's 102 FEDERAL REPORTER, 34 SERIES appeal of the district court's award of costs to be moot. Each side shall bear its own costs on appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. J. William AMAREL; Jack E. Carrieo and Pamela Fawn Carrico; Reason Farms; Starkey Ranch, Ine; Danley Bros, Ine Rodrick Ranch, Inc; Allen Etchepare; ‘A. Charles “Etehevarry; — Sohnrey Ranches; Jay Dee Garr; Maxwell Spyres; Morley Green, aka Nor-Cal Brokerage; Yuba Farms Co; Johnson Equities, Inc; Lambirth, C. Farms, Inc; McKnight, J.H. Ranch, Inc; Larry E. ‘Middleton; Henry C. Moore, Plaintiffs Appellants, Grover CONNELL; Connell Rice and ‘Sugar Co; Joseph L. Alioto, Defendants-Appellees. Nos. 9415808, 95-16121. United States Court of Appeals, Ninth Circuit, Argued and Submitted June 13, Decided Dee. 2, 1996, As Amended Jan, 15, 1997. Independent rie farmers brought ant trust action against vice exporter, its pres dent, and its atomey under Sherman Act and Calforia Cartwvight Act. The United States Distriet. Coure for the Northern Dis- triet of California, Vaughn R, Walker and Barbara A. Caulfield, JJ, entered judgment for defendants, Farmers appealed. The Court of Appeals, Michael Daly Hawkins, Gireuit Judge, held that: (2) farmers had antitrust standing; (@) district judge's deci- son to allow testimony by defense expert AMAREL v. CONNELL 1495, ee 102 F.34.1498 (8G 1996) ‘which contravened another judge's earlier order sanctioning defendants’ repeated dis- covery was not error; (3) defense summary ‘exhibit violated rule requiring admission of ‘materials underlying summary exhibit; (4) lawsuits and counterclaim by defendants ‘were not sham lawsuits under Noerr-Pen- ‘ington doctrine; (6) it was improper for distriet court to enter judgment for rice ex- porter, its president, and its attorney on restraint of trade claims under Sherman Act ‘and California Cartwright Act; and (6) eorpo- rate attorney was entitled to judgment as a matter of law on rice farmers’ claims that attorney masterminded and perpetrated rice exporter's alleged conspiracy to monopolize and restrain trade in rice industry. Affirmed in part and reversed in part. 1. Federal Courts 776 Antitrust standing is 2 question of law reviewable de navo. 2, Monopolies ©=25(1.6) Tssue of antitrust standing may be raised at any stage of litigation, 3. Monopolies €28(1.4) Despite sweeping language of Clayton ‘Act section allowing recovery of treble dam- ages by any person who shall be injured in his business oF property hy reason of any thing forbidden in antitrust. laws, Congress did not intend to provide a private remedy for all injuries that might conesivably be traced to an antitrust violation. Clayton Act, $40), 1KUSCA.§ 1540. 4. Monopolies €28(14, 1.6) Harm to antitrust plaintiff is sufficient ‘to satisfy constitutional standing requirement. of injury in fact, but court must make a further determination of whether plaintiff is ‘a proper party to bring @ private antitrust action, 5, Monopolies ¢=28(1.4, 1.6) Factors to consider in determining whether a plaintiff has antitrust standing are nature of plaintiff's alleged injury, that is, ‘whether it was the type antitrust laws were intended to forestall; directness of the inju speculative measure of the harm; risk of Guplicative recovery; and complexity in-ap- portioning damages. 6. Monopolies 28(1.4, 1.6) Antiteust standing involves case-by- case analysis of plaintiff's harm, alleged wrongdoing by defendants, and the relation- ship between them. 7. Monopolies €=28(1.4) Antitrust plaintiff must prove existence of antitrust injury, which is to say injury of the type antitrust laws were intended to prevent and that flows from that which ‘makes defendants’ acts unlaviul ‘8, Monopolies ©28(1.4) An injury will not qualify a8 antitrust injury unless it is attributable to an anticom- petitive aspect of practice under serutiny, singe it is inimical to antitrust laws to award damages for losses stemming from continued competition. 8. Monopolies €=28(1.4, 1.6) ‘As a corollary to requirement that al lege antitrust injury be related to anticom- petitive behavior for plants to have stand- ing, courts require that injured party be a participant in same market as alleged male- factors 10. Monopolies ©=28(1.6) Independent rice farmers had standing to bring antitrust claims against riee export cr, its president, and its attorney; farmers alleged that they participated in inarket for milled riee by virtue of their participation contracts with independent mills and that defendants’ alloged predatory pricing hharmed them because it depressed prices ‘below their eosts and that defendants, acting in concert with rice cooperatives, conspired to eliminate both independent mills and inde pendent growers. Sherman Act, § 1, as amended, 15 USCA. § 1. 11. Monopolies €=28(1.4) Losees a competitor suffers as a result of predatory pricing is form of antitrust injury because predatory pricing has requi- site anticompetitive effect against. competi- tore, 1496 12, Monopolies ©=28(1.6) ‘When defendants engage in predatory pricing or other anticompetitive acts in an attempt to gain a monopoly, eompetitor who is being driven out of market is the party with standing. 18, Monopolies €28(1.4) A form of antitrust injury is coercive activity that prevents its vietims from mak- ing free choices between market alternatives; such conduct. is inherently destructive of competitive conditions and may be con- demned even without proof of its actual mar- ket effect, and this eategory of antitrust inju- ry includes agreements to restrain trade, 14. Monopolies €28(1.6) Antitrust standing is appropriate in cer- tain cases where plaintiff is a supplier of ‘goods or services who can prove that he suffered lower selling prices or diminished volume or other profit reduction as result of illegal conduet by defendants. 15. Monopolies ©28(1.6) Although a plaintiff normally lacks anti- trust standing where that plaintif's customer is immediate vietim of defendant's conduct, standing is appropriate where that plaintiff also competes with defendant, 16, Monopolies €25(1.4, 1.6) Independent rice farmers were sul ciently direct victims of alleged anticompe tive activities of rice exporter, its president, and its attorney to have antitrust standing; farmers alleged eonspiracy by defendants to eliminate independent farmers and indepen- dent mills through predatorily low prices which depressed their earnings and restraint of trade in milled rice market resulting from defendants’ refusal to supply rice to mills, Shorman Act, § 1, as amended, 15 USCA. $1 11, Federal Courts 822 Court of Appeals reviews challenges to tial court management for abuse of discre- tion, 18, Federal Civil Procedure 1951 District court is generally free to impose reasonable time limits on atrial 102 FEDERAL REPORTER, 34 SERIES 19, Federal Civil Procedure ©1951 ‘Time limits during trial may be used to prevent undue delay, waste of time, or need- less presentation of eumulative evidence. 20, Federal Civil Procedure ©1951 Rigid and inflexible hour limits on trials are generally disfavored, 21. Federal Civil Procedure 1951 ‘Time limits imposed hy district court in antitrust action were reasonable; distriet court based time limits, in part, on parties’ estimates of trial length, after court proposed a six-week trial, with forty hours per side for ‘witness examination, plaintiffs’ counsel asked court for ten more hours to try liability issue, and although court initially rejected this sug gestion, it subsequently gave each side six additional hours for witness examination, and in implementing time limits disteet court was flexible. 22, Federal Courts 825.1 Court of Appeals reviews for abuse of discretion district judge's decision to recon- sider an interlocutory order by another judge of same court. 23, Federal Civil Procedure ©0928 Judges 32 Interlocutory orders and rulings made pretrial by a district judge are subject to ‘modification by district judge at any time prior to final judgment, and may be modified to the same extent if case is reassigned to another judge; there is no imperative duty to follow earlier ruling—only desirability that suitors shall, so far as possible, have reliable guidance on how to conduct their affairs. 24, Federal Civil Procedure €=1267.1, 2011 District court is vested with broad dis- cretion to make discovery and evidentiary rulings conducive to conduet of a fair and orderly trial. 25. Evidence ©546 Federal Civil Procedure ©2011 Within a district court's broad diseretion lies both power to exclude or admit expert testimony, and to exclude testimony of wit- AMAREL v. CONNELL 1497 ‘teas 2 £34 1498 (98 Ci. 1996) nesses whose Use at trial is in bad faith or ‘would unfairly prejudice an opposing party. 3. Federal Civil Procedure €=2015 District court has broad discretion over admission of rebuttal evidence. 21, Judges 32 District judge's decision to allow testi- mony by defense expert which contravened another judge's earlier onder sanctioning de- fendants’ repeated discovery was not error district judge apparently concluded that ref- erence to a writing by expert during exami- nation of plaints’ own expert constituted a salfieiently changed circumstance as to justi fa limited response 28, Federal Civil Procedure 1278 Factors a district court must consider where a party sooks to call a witness who does not appear on witness list are: (1) preja- dice or surprise of party against whom ex- cluded witness testifies; (2) ability of that party to cure prejudice; @) extent to which calling witness would disrupt orderly. and ‘efficent trial; and (4) bad faith or wilfulness in fling to comply with court's order. 29, Federal Courts ©823 Bvidontiary rulings are reviewed for an abuse of diseretion and should not be re- versed absent some prejudice. 30, Evidence 181 ‘A proponent of a summary exhibit must establish a foundation that. (1) underlying, materials on which summary exhibit is based are admissible in evidence, and (2) those underlying materials were made available to ‘opposing party for inspection. Fed.Rules Evid Rule 1006, 28 US.C.A, 31, Evidence 181 Where a party fails to make available materials underlying a summary exhibit, that summary exhibit is inadmissible. Fed.Rules Bvid-Rule 1006, 28 US.C.A. 82, Hvidence 181 Defense exhibit which summarized Cali- fornia vice prices that had been adjusted by defendants’ expert and Thai rice prices, and defendants’ expert’s regression analysis of that price information, violated rule requiring, ‘admission of materials underlying summary exhibit, although exhibit was used to erticize plaintiffs’ expert. study which contained a similar regression analysis, where that analy sis relied on different data and defendants never admitted the underiying data. Fed. Rules Evid Rule 1006, 28 U.S.C.A. 83, Federal Courts €896.1 Error in admitting defendants’ summary exhibit without admission of underlying data, ‘was not prejudicial in antitrust action, given impeaching evidence given by plaintiffs ex: pert in rebuttal. Fed Rules Evid-Rule 1006, BUSCA, 3A, Federal Courts 776 Court of Appeals reviews de nove dis- tuict court's grant of directed verdict. 35, Federal Civil Procedure ©2152 ‘A directed verdict is proper when ovi- dence. permits only one reasonable conchu- 36. Federal Civil Procedure ©2127 (On motion for directed verdit, evidence rust he viewed in light most favorable to nonmoving party, and all reasonable infer- ‘ences must be drawn in favor of that party ‘81. Monopolies 12(16.5) “‘Noorr-Pennington doctrine” provides ‘that those who petition government for re- dress are generally immune from antitrust liability. See publication Words and Phrases for other judicial constructions and det ‘nitions, 38, Monopolies €12(16.5) NocrmPennington doctrine, which pro- vides that those who petition government for redress are generally immune from antitrust liability, encompasses private actions that at= tempt to persuade the legislature or execu tive to take particular action with respeet to flaw that would produce a restraint or a monopély, as well as the approach of citizens to administrative agencies and to courts. 39, Monopolies €12(16.5) Noer-Pennington antitrust immunity does not apply when the activity is a mere 1498 sham to cover an attempt to interfere direct- ly with business relationships of a competi- tor. 40. Monopolies 12(16.5) Lawsuits and counterclaim by rice ex- porter, its president, and its attorney against independent riee mill alleging violation of Department of Agriculture reporting reqgula- tions pertaining to rice sales and antitrust Jaws, and accusing mill of engaging in com- mercial bribery were not sham lawsuits un- der Noerr-Pennington doctrine; exporter, its president, and its attorney relied on eiream- stantial evidence in bringing lawsuits. 41, Monopolies €>12(16.5) Efforts of rice exporter, its president, and its attorney to influenee various Ameri- ‘can and Korean officals—from state depart- ‘ment offcials to members of Congress—was legitimate private action in response to their suspicions of bribery by independent rice mills, and thus, those efforts were shielded by Noerr-Pewnington doctrine from anti- trust lability. 42, Federal Courts 822 Court of Appeals reviews for abuse of diseretion a distriet court's formulation of civil jury instructions. 43, Federal Courts 912 ‘Monopolies ©=28(8) Although distriet court did not adopt antitrust. plaintiffs’ proposed jury instrue- tions with respect to law of subpoensing dip- Jomatie officials, district court’s instructions to jury did not constitute an abuse of discre- tion; by the time it instructed jury, district court had already entered judgment. as a ‘matter of law for defendants on plaintifs’ claims of “sham” litigation, mesning distriet court’ instructions to jury on this peripheral question were of little or no import. 44, Federal Courts 776 Court of Appeals reviews de novo dis- tuict court's decision to enter judgment as a matter of law, and must view conflicting evi- dence in light most favorable to nontaovant, and determine whether proffered result is the only reasonable conclusion 102 FEDERAL REPORTER, 34 SERIES 45. Monopolies ©28(8) Te was improper for district court. to enter judgment for rice exporter, its presi- dent, and its attorney on restraint of trade claims under Sherman Act and California Cartwright Act; distriet court’s entry of judg- ment as 2 matter of law was premised on district court's characterization of rice farm- cers’ theory of ease as attempt by defendants ‘to restrain trade in relevant’ market, but farmers’ theory of case did not condition reeavery on monopoly claims on recovery on restraint of trade claims. Sherman Aet, § 1, as amended, 15 USCA. § 1; West's Ann. CalBus, & ProfCode § 16700 et seq, 46. Monopolies 12(1.3, 1.6), 28(1.4) ‘To establish a Sherman Act violation for attempted monopoliztion, a private plaintiff ‘seeking damages must demonstrate four ele- ) specific intent to control prices or destroy competition; (2) predatory or anti- competitive eonduet directed at aceomplish-- {ng that purpose; (8) a dangerous probability of achieving monopoly power; and (4) casual antitrust injury. Sherman’ Act, § 2, as amended, 15 USCA. § 2. 47, Monopolies €12(1.1) Unlike claims of attempted monopoliza- tion, restraint of trade claims need not estab- lish threshold showing of monopoly control over a relevant market. Sherman Act, $§ 1, 2,8 amended, 15 USCA. §§ 1,2. 48. Monopolies ©12(1.1) To show restraint of trade, a plaintiff ‘must establish a contraet, conspiracy or eom- bination intended to restrain competition and ‘which actually has an anticompetitive effect. Sherman Act, § 1, as amended, 15 US.C.A. $1. 49, Monopolies ©28(1.7) Corporate attorney was entitled to Judg- ‘ment as a matter of law on rice farmers’ claims that attorney masterminded and perpetrated rice exporter’s alleged conspira- cy to monopolize and restrain trade in rice industry over 30 years and orchestrated anti- competitive activities to prevent independent rice mills from competing in market for ex- port of California rice to Korea, where farm- AMAREL v. CONNELL (teas 102 F.3d 1494 (thi ers presented no evidence to support aceusa- tons. 50, Monopolies €=28(1.7) ‘Where plaintiff seeks to impose antitrust liability on an attorney, plaintiff must estab- lish that attorney exerted his influence over a Glient so as to direet client to engage in complained of acts for an anticompetitive purpose. 51. Monopolies ©28(1.7) Individual liability on corporate attorney under antitrust laws ean be imposed only where corporate attomeys are actively and knowingly engaged in a scheme designed to achieve anticompetitive ends, and to support ‘2 determination of lability under this stan- dard, the evidence must demonstrate that attorney exerted his influence so as to shape corporate intentions. 52, Federal Courts €830 Because decision to award costs ordi narily resides in distriet court, Court of Ap- peals reviews such decisions for an abuse of diseretion, Fed Rules Civ.ProcRule 54(@)(), BUSCA. 53, Federal Courts 6933 Court of Appeals’ reversal of district court's judgment for prevailing party in anti- trust action warranted reversal of both un- derlying judgment and taxation of costs un- dertaken pursuant to that judgment. Fed. Rules Civ.ProeRule 54(€)(1), 28 US.C.A. ‘54, Federal Civil Procedure 62727 In the event of a mixed judgment, it is within diserotion of district court to require ceach party to bear its own costs. Howard I. Langer and Kenneth L. Fox, Berger & Montague, Philadelphia, PA, for plaintffs-eppellants. Bugene Crew and Margaret C. McHugh, ‘Townsend, Townsend, Khourie & Crew, San “Honorable James M, Fitzgerald, Senior United States District Judge for the District of Alaska, siting by designation. Because the district cour: ordered separa t ls of plains’ claims and defendants’ counter ‘aims, defendants’ counterclaims remain pend- 1996), bade Francisco, CA; and Mitchell Blumenthal, ‘Sunnyvale, CA, for defendants-appellees. Appeal from the United States District Court for the Northern District of California, Barbara A. Caulfield, District Judge, Presid ing in No, 9415808, Vaughn R. Walker, Dis trict Judge, Presiding in No. 95-16121. D.C. Nos. CV-$9-00558-BAC, — CV-89-00558— RW. Before: SCHROEDER and HAWKINS, Cireait Judges, and FITZGERALD,* District Judge. MICHAEL DALY HAWKINS; Cireait Sudge: ‘This appeal arose out of a complex, lengthy, and bitterly contested antitrust suit. Plaintiffs-appellants, independent. California, ice farmers, appeal the district court's ‘March 1994 judgment for defendants-appel- lees, a rice exporter, its president, and its Inwyer. That judgment was based in part on a jury verdiet for defendants as to plantiis? Section 2 Sherman Act conspiracy claims and violations of the California Unfair Practices ‘Act, and in part on the district court's judg ment as a matter of law for defendants as to plaintiffs’ elaims for conspiracy to restrain trade in violation of Section 1 of the Sherman ‘Act and California's Cartwright Act. ‘The litigants raise mumerous procedural and substantive iaeues on appeal. Defen- dants insist plaintffS lack standing to main- tain this antitrust action, Plaintiffs allege several instances of trial error, challenge the district court's ralings involving antitrust im- ‘munity under the Noerr-Pennington doc ‘rine, and argue that it was error for the district court to enter judgment as a matter of law as to the restraint of trade claims on which the jury was divided. Plaintiffs also appeal the district court's post-trial award to defendants of nearly $100,000 in costs. We have jurisdiction pursuant to 28 USC. $1294 Ing in district court. Jurisdiction is nonetheless sppropriate because ihe district court entered Final judgment for defendants as to. plants’ claims, and certified the judgment for appeal pursuant to Federal Rule’ of Civil Procedure 540), 1500 FACTUAL AND PROCEDURAL HISTORY I. The Rice Industry A. Crisis in the World Rice Market ‘The marketplace can be a harsh teacher and it certainly was here. These events have their beginning in 1980, when a worldwide riee shortage drove priees on the internation- al rice market to record highs. The follow- ing year, many riee farmers reacted to these abnormally high prices by substantially in- creasing rice production. This, in turn, re- sulted in an oversupply of rice and the col- lapse of world rice prices in 1981. ‘The 1980 shortage was especially severe in the Republic of Korea (“Korea”), which had experienced a domestic rice crop falluro as a consequence of bad weather. To meet do- ‘mestie demand, Korea needed to import large quantities of rice. In light of the Kore- an shortage, the United States agreed to the ‘export of one million tons of riee from Japan to Korea, That decision invoked an emer- gency exception to a US-Japan bilateral agreement, executed earlier in 1980, which prohibited Japan from “dumping” rice on markets to which US. companies exported In exchange for this exemption, Korea ‘committed in early 1981 to the purchase of certain rice quotas from the United States: 2) 200,000 tons of 1980 U.S. Southern short grain rice? 2) the remaining balanee of the 1980 California rice crop? and (8) 500,000 tons of the 1981 California vee erop. ‘The current litigation was precipitated hy the alleged actions of eertain participants in the California rice market in responding to Korea's commitment to purchase rice from United States producers. The response transpired against a backdrop of eontinuing 2 Southern short grain rice ie grown in the ‘southern United Stats and resembles the "p0- nies” rice grown in California and Tspan and preferred by Korean consumers 3. "California" see isa variety of “Japonica” rice. 4. Although both parties number plains at eigh teen, nineteen plaintiffs are named, both in the second amended complaint and inthe briefs on 102 FEDERAL REPORTER, 34 SERIES decline in rice prices occasioned by the 1981 ‘world rice surplus B. The Parties Plaintiffs are nineteen independent Cali- fornia rice farmers who grow California rice, hharvest it in “rough” or “paddy” form, and sell it to @ handful of independent rico mills: Pacific International Rice Mills, Ine. PIR- MP, Comet Rice of California, and Grosjean Rice Milling! ‘The independent. rice mills then mill the rice and sell it in milled form, ‘The independent rice growers generally sell paddy rie to the independent mills through “participation contracts,” under which they share profits from the sale of milled rice. ‘The original defendants in this action in- cluded two cooperatives of ice farmers, Farmers Rice Cooperative (“FRC”) and Rice Growers Association of California RGA") These cooperatives grow, mill, and sll vice Plaintiffs allege that these cooperatives rep- resent a vertical integration of all phases of rice production. Three defendants are still party to the action: Connell Rice & Sugar Company (“Connell Rice”), the export mar- keting agent for cooperatives RGA and FRC; Grover Connell, president of Connell Rice; and Joseph L. Alito, a partner in the San Francisco law firm of Alioto & Alioto, past president of RGA, and sometime legal coun- sel to RGA, FRG, and Connell Rice. ©. Rice Sales to Korea 1, 1981-82 rice sales to Korea pursuant to Korea's commitment to purchase 200,- 000 tons of 1980 U.S. Southern short grain rice On Decomber 12, 1980, defendant Connell Rice bid to sell Southern rieo at $515 per ton to Korea. Connell Rice was subsequently lunderbid, however, by an independent rice millPIRMI-—which won the contract to spel. This discrepancy appareniy stems from the second amended complaint, which lists + husband and wife a one plait 5. None of the independent rice mills are parties tw this action, 6. RGA was voluntarily dismissed from this ac: ‘lon, and FRC was never served and was dis mised. AMAREL ¥. CONNELL 1501 eae 102 F898 (HACE 1996) supply Korea with 200,000 tons of 1980 Southern rice at $449.50 per ton. A formal contract was executed January 28, 1981 by PIRMI and the Office of Supply of the Re- public of Korea (“OSROK"), the Korean gov- ernment ageney responsible for the purchase of ree ‘When it came time to perform, PIRMI had insufficient supplies to deliver on the entire 200,000 tons, PLRMI officials blamed this on two things: (1) Connell Rice's purchase of Southern rice (thereby depleting the overall supply of such rice), and (2) Connell Rice's subsequent sale of that riee to OSROK, both ‘occurring just a few days after PIRMY's Jan- uuary 23, 1981 contract with OSROK. On February 8, 1981, OSROK confirmed that it hhad purchased 120,000 tons of Southern rice from Connell Rice at $449.90 per ton. PIR- MI was able to deliver only 105,000 tons of Southern rice to Korea, ‘To make up for the shortfall on its prom- ised delivery of Southern rice to OSROK, PIRMI offered to substitute 1981 California rice for the Southern rice. By letter of January 22, 1982, PIRMI's president offered to sell OSROK 70,000 tons of California rice at $349.90 per ton, a doerease in price of $100 per ton from the Southern riee PIRMI was unable to obtain. On January 25, 1982, while PIRMI was still diseussing this substitution with OS- ROK, Connell Rice, aware that OSROK was negotiating for the purchase of California rice, offered to sell 500,000 tons of California rice at $260 per ton. Plaintiffs later alleged in thelr lawsuit that defendants had conspired to depress the price of California rice, and that this conspir~ ‘acy Was part of a larger, prolonged effort to drive both the independent farmers and the independent mills out of business. They claimed they were damaged by defendants’ alleged predatory pricing, beeduse this prie- ‘ng reduced the return they earned on the 7. Connell Rice apparently provided the $260 price quote in response to OSROK's January 19, 1982 request, by telephone, for a price quote from RGA, Because Connell Rice is RGA's ex port marketing agent, RGA directed OSROK to Contact Connell about the quote. ‘paddy riee they sold to the independent mills for export to Korea, ‘At trial, plaintiffs attempted to establish that $260 per ton was a predatorily low price. ‘A PIRMI official and plaintiffs’ expert wit- ness, an agricultural economist, testified that {$260 was “below the [average] variable cost [of produetion).” Defendant Grover Connell testified, however, that $260 was a competi- tive price, given the oversupply in the world market atthe time. ‘Simultaneous with its $260 bid, Connell Rice made other efforts to sell California rice to Korea, First, Connell Rice's attorney, defendant Joseph Alioto, sent several tele~ ‘grams on Connell Rice's behalf to OSROK and other Korean officals, eluding the Ko- rrean ambassador to the United States, “re- quest{ing] the opportunity to bid or negotiate ‘on the competitive merits of the impending sale of American rice to Korea.” Alioto's telegrams also mentioned “disturbing reports that other Ameriean suppliers are attempting to persuade you to exclude Connell [Rice] from the business and to deny it even the opportunity to bid or negotiate competitively on the forthcoming sale,” and warned that such conduet would be actionable under U.S. antitrast laws. Second, Connell Rice president Grover Connell accused Korean government officials of having accepted bribes from PIRMI in exchange for rice sale contracts. Such state- ments sparked investigations of commercial bribery by both the US. State Department and the Korean National Assembly. When State Department officials asked Grover Connell why he suspected bribery, he cited the difference between the price PIRMT ne- gotiated with OSROK in early 1981 and the dramatically lower prices Connell Rice had i, explaining that he inferred bribery from OSROK's alleged “overpayment” to PIRMLS No evidence of bribery was ever found, how- 8. Several members of Congress apparently took ‘seriously the charge that Korea had paid inflated prices for U.S, rice: ILI members of Congress Signed a leter to the president of Korea, accus- lng the Korean government of “improprieties in the purchase of U.S. ce.” 1502 PIRMI oventuslly negotiated a contract with OSROK for the sale of 70,000 tons of California rice to substitute for the undeliv- ered Southern riee. "The price was $280 per ton, a sharp reduetion in price from PIRMI's original offer of $449.90 per ton. PIRMI officials testified at trial that the substitution of California rice at $280 per ton for South- fem rice at $449.90 per ton eaused them Toeses of $12 million. 2, 1981-82 rice sales to Korea in connec tion with Korea's commitment to pur- ‘chase 500,000 tons of 1980 California Korea counted the 70,000 tons of California. rice it bought from PIRMI toward its eom- ‘mitment to purchase 500,000 tons of the 1981 California rice erop; it algo eounted a 60,000- ton purchase from Agroprom, a Swiss eom- pany, toward that quota. By March 1982, therefore, Korea needed to purehase an addi- tional 370,000 tons to meet its commitment. In March 1982, OSROK solicited bids on its remaining 870,000 ton commitment. Con- nell Rice offered to supply all $70,000 tons at $249 per ton; shortly thereafter, Connell Rice lowered its bid to $246 per ton. Inde- pendent rice mill Comet later matched Con- nell Rice's $246 per ton offer. At tral, plain- tiffs attempted to prove that Connell Rice's price was below the independent farmers’ cost of production and therefore was a preda- tory price. In May 1982, Comet was awarded the en- tire contract to supply Korea with rice at $246 per ton. However, Comet had only 120,000 tons of California rice available to sell. Between May and November of 1982, Comet negotiated with rice cooperatives RGA and FRC in an attempt to purchase the 250,000 tons it needed to meot its commit- ‘ment to Korea. Comet and the cooperatives were never able to agree on a price. Plain- tiffs ater alleged Connell Rice and the eoop- eratives had boycotted and refused to deal with Comet, while defendants insisted that Comet simply rejected the cooperatives’ re- peated offers. Comet eventually satisfied 9. The sole defendants t go total were Connell Rice, Grover Connell, and Joseph allot. RGA ‘and Erecare were voluntarily dismissed with 102 FEDERAL REPORTER, 3d SERIES the contract by renegotiating with Korea to substitute 1982 California rice, Tl, Origins of the Litigation In late 1985, plaintiffs brought federal anti- trust claims and related state-law claims against several defendants: Cornell Rico, Grover Connell, cooperatives FRC and RGA, ‘Joseph Alioto, and James Robert Errecarte, former CEO of RGA? Plaintiffs first cause of action was for mo- ‘opoly, attempted monopoly, and conspiracy to monopolize in violation of Seetion 2 of the Sherman Act, 15 US.C. § 2 Plaintifis al- leged rice cooperatives FRC and RGA were vertically integrated operations that had con- spired with the other defendants to monopo- lize all three markets in the California rice industry: the California paddy rice market, the market for the milling of California rice, and the California milled rice market. First, plaintifs alleged that FRC and RGA “acting jointly as a combination controlled over seventy-five per cent of all paddy rice grown in California” while the independent farmers controlled the remaining twenty-five pper cent. They alleged that the two rice milling cooperatives operated a monopoly or, in the alternative, a combination posing a “dangerous probability” of achieving a mo- nopoly. Second, plaintifis alleged that FRC and RGA “acting jointly as a combination eon- trolled over seventy-five per gent of all milled California vice,” while the three independent rice mills—Comet, PIRMI, and Grosjean— divided the remaining twenty-five per cent of the: milled rice market. Plaintifs alleged FRC and RGA were, together, a monopoly or, in the alternative, a combination with a “dangerous probability” of achieving a mo- nopoly. Third, plaintiffs alleged that FRC and RGA used their monopoly power in pad- dy rice and in milled rice to eontrol the intervening market: the market for rice mill ing, the process whereby paddy rice is eon- verted into milled rice. Finally, plaintiffs alleged that Connell Rice controlled over prejudice in 1986, FRC was apparently never Served and was dismissed in 1986, AMAREL v. CONNELL 1503 ens 102 F.3d 1494 Hh Ce 1996) ninety per cent of the submarket for the ‘export of California riee to Korea during the period 1968 through 1981, and alleged that this degree of control constituted a monopo- ly. Connell Rice was also alleged to have a monopoly in the market for the export of California vice under the P.L. 480 export scheme. ‘Also contained in plaints’ fist cause of action was tho claim thet defendants had a contract, combination, or conspiracy in re- Sraint of trade in violation of Section 1 ofthe Sherman Act, 15 USC. § 1. Plaintiffs al leged a far-reaching, docades-iong conspiracy among defendants to “eliminate independent rice purchasers and independent ice mills from the market for milled California rice and to eliminate independent growers of Cal fornia paddy rice by driving [the] growers from the market or foreing them to become rember af (one of the rice cooperatives” Tn support of their claim, the independent ioe farmers alleged a long history of anti- competitive behavior by the rice coopera: tives. They alleged the cooperatives had auquired several independent rice mills over the years; had used their alleged monopoly power to manipulate prices for paddy rice ‘and milled vee with the aim of eliminating the independent farmers and mils, had re- fused to sell competitively priced paddy rice to the independent mills; had paid indepen- dent rice farmers discriminatory high prices to prevent the sale of paddy rice to the independent mills; had refused to sell com- petitively priced mille rieo to actual or po- tential customers of the independent. mils had eharged predatory low price for milled ce to prevent the independent rice mills from selling their milled rice; and had ex- cluded independent mills from Califrnia port faites, Finally, with respect to the 10, Plaintiffs accused. Aloo of masterminding and perpetrating the alleged monopolzaton cone {pracy for over thingy yeare, and alleged Aloto id orchestrated defendants’ alleged anscompet ite ates in 1981-82. Particular allegations tree that Alloto attempted to obstruct Korean Contacts withthe independent mals by allegedly iping to Korean ofits about the price of ie falsely accusing independent mil PIRAL of bib ty of Korean offi, knowingly serving Moga ‘Shpoenas on Korean diplomats deter them ftom contacting wih he independent ie mill ‘masterminding the alleged sham Iigton and California riee export market to Korea, the independent rice farmers alleged the rice cooperatives had conspired to sell only the cooperatives’ rice to Korea and had bribed Korean officals to obtain a monopoly in the export market to Korea. ‘Defendants-appellees Connell Rice, Grover Connell, and Joseph Alioto, it was further alleged, had all acted “in concert” with FRC and RGA in their alleged efforts to eliminate ‘the independent rice mills and independent rice farmers. Plaintiffs accused Alioto of having masterminded the alleged anticompet- itive activities.* A. Allegations of Anticompetitive Ac- tivities in 1981-82 Plaintiffs alleged that by 1981, defendants had succeeded in eliminating every major Independent rice mill in California except PIRMI and Comet, and in that year launched ‘final concerted effort to drive these last two independent mills out of the rice business ‘and to eliminate all independent rice farmers by either driving them out of business or foreing them to join the rice cooperatives. Plaintiffs alleged, first, that defendants used their monopoly power to drive down the price of California paddy rice in 1981 and 1982, Second, plaintifis alleged that defen- ants boycotted independent rice mill Comet uring this period by refusing to sell t paddy or milled rice. Finally, plaintiffs alleged de- fendants used their monopoly power to drive down the price of California milled rive from cover $500 in 1981 to under $250 in 1982. Plaintiffs alleged that defendants’ activities “destroy{ed] PIRMI" and paved the way for RGA's attempted acquisition of PIRMI’s mill operations. That acquisition was later en- Joined by a distriet court order." In addi- sham administraive proceedings almed at ob Structing. the independent mils” efforts to sel fee to Korea; and concealing the nature of RGA’ attempted purchase of the PIRMI mil in {an attempt to evade U.S. Department of Justice 11, The United States Deparument of Justice, An Trust Division filed suit under Sections 7 and 15, ff the Clayton Aet, 15 USC. §§ 18 and 25, Seeking 10 enjoin RGA's acauisition of PIRMI fssets, The district court entered judgment for the United States in 1986, finding that the a- 1504 tion, plaintiffs alleged that defendants had instituted “sham litigation” during this peri- od. ‘They claimed Connell Rice, Graver Con- nell, and Joseph Alioto had commenced Iaw- suits that they “Imew to be without merit and Which were prosecuted solely for the purpose of injuring competition” Plaintiffs also al- leged defendants engaged in “false testimo- ny, false submissions to government agencies and threats to government officials” as well as threats against competitors, in further- ance of their alleged conspiracy. B. Injuries Sought ‘The independent rice farmers alleged that defendants’ actions caused them harm by (2) restraining trade in the markets for Cali- fornia paddy rice, California milled rice, and the milling of California riee; (2) eliminating ‘independent mils, thereby restricting the in- dependent farmers’ ability to sell paddy rice and reducing the number of mills selling California milled rice; (@) denying purehas- ers of California paddy riee and California milled rice of “the benefits of open and unre- stricted competition;” and (4) causing plain- tiff independent farmers “monetary injury to their business and property” by causing pre- datorily low prices for California paddy rice and California milled rice. Plaintiffs sought injunetive rolief and treble damages of an unspecified amount. Alleged and Damages WL. The Triat After several years of pre-trial skirmishes and reassignment to several district judges, the suit finally went to a jury trial before Judge Caulfield in 1992. “Although defen- tempted acquisition would result in a market concentration that could “substantially . lessen competition in the market for the purchase or sequistion for milling of paddy rice grown in california,” and this would violate Sections 7 and 15 ofthe Clayton Act. United Stats v. Rice Growers Ass'n of California, 1986-2 Trade Cases (CCH) para) 67.287, 1986 WL’ 12562, * 12, (ED.Cal1986). The district court found thatthe transaction, which was directed to some extent by Joseph Alioto, appeared “structured so as t0 avoid the reporting requirements of the Hart Scott-Rodino Antitrust Improvement Act of 1976, 1S US.C.8 183)” Id.at" 13 102 FEDERAL REPORTER, 34 SERIES ants had fled various counterclaims, the district court severed plaintiffs’ claims from defendants’ counterclaims, in view of the complexity of the litigation. The lik phase of the trial lasted approximately seven weeks, running from March 23 to May 14, 1992. The jury rendered its verdict on May 29, 1992. ‘The following are aspects of the trial that are relevant to this appeal. AL Time Limit Over plaintiffs’ pretrial objection, the dis- triet court imposed a time limit on the trial For the liability phase of the trial, the court allowed each side forty hours for direet and cross-examination, and allowed each party ‘6v0 hours for opening statements, two hours for closing arguments, and two-and-a-half hhours for additional “commentary” to the Jury. During the trial, the court granted each side six hours of supplemental time, after asking the lawyers for each side how ‘much additional time they would need to fnish trying the ease, B. Evidentiary Rulings 1. Admission of Defense Expert Testimony In April 1991, during the diseovery phase of the litigation, Chief Judge Henderson is- sued’ an order prohibiting defendants from introducing any expert testimony at_ tial Judge Henderson's order deseribed a series ‘of discovery abuses by defendants, Defen-

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