Citations
- 281 F. Supp. 3d 892
Full opinion text
William H. Orrick, United States District Judge
ORDER ON PENDING MOTIONS
Dkt. Nos. 541, 548, 564, 581, 602
There is ample (although hotly disputed) evidence of a conspiracy by the defendants to fix the price of Korean ramen in Korea that was fraudulently concealed from consumers. Defenses of the statute of limitations and international comity are not well taken. The much closer question is whether there is sufficient evidence that the conspiracy impacted ramen prices in the United States, in particular for ramen manufactured in the United States! On defendants’ motions for summary judgment, I conclude -that plaintiffs have established that material disputes of fact exist that a jury must resolve, and DENY defendants’ motions.
The general background and history of this litigation is well known ánd laid out in my prior orders. Dkt. Nos. 501, 502. The facts material to the determination of these motions, both undisputed and disputed, will be addressed below.
LEGAL STANDARD
. Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the" non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts. showing there is a genuine issue for trial.” Id.. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant. Id. at 255, 106 S.Ct. 2505. In deciding a motion for summary judgment, “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. Conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
The permissible inferences to be drawn from evidence in an antitrust case at summary judgment are further qualified. As the Supreme, Court explained in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106, S-Ct. 1348, 89 L.Ed.2d 538 (1986), “antitrust law limits the range of permissible inferences from ambiguous evidence.....” Id. at 588, 106 S.Ct. • 1348. As a result, “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id. “To survive , a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence ‘that tends to exclude the possibility” that the alleged conspirators acted independently..., Respondents [], in other words, must show that the inference of conspiracy is .reasonable in light of the competing inferences of independent action or collusive ■ action that could not have harmed respondents.” Id.-, see also In re Citric Acid Litig. 191 F.3d 1090, 1094 (9th Cir. 1999) (“permitting the inference of conspiratorial behavior from evidence consistent with both lawful and unlawful conduct would deter pro-competitive conduct—an especially pernicious danger in light of the fact that the very purpose of the antitrust laws is to promote competition”). ■
In this context, “the defendant can ‘rebut an allegation of conspiracy by showing a plausible and justifiable reason for its conduct that is consistent with proper business practice’ ... The burden then shifts back to the plaintiff to provide specific evidence tending to show that the defendant was not engaging in permissible competitive behavior.” In re Citric Acid Litig., 191 F.3d at 1094 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987)).
DISCUSSION
I. STATUTE OF LIMITATIONS
Both defendants move for summary judgment because plaintiffs’ antitrust claims are barred by the, Sherman Act’s four year statute of limitations. In ruling on the motions to dismiss earlier in this case, I determined that the “discovery rule” could toll the otherwise applicable four year statute of limitations. Fenerjian v. Nongshim Co., Ltd., 72 F.Supp.3d 1058, 1078 (N.D. Cal. 2014). I also concluded that plaintiffs pleaded sufficient facts showing that defendants took affirmative steps to fraudulently conceal the alleged conspiracy to raise prices. Id. at 1078-79,
The, issue is significant, because only a small, fraction of the sales at issue fell within the four year statute running from the 2013 filing of the first related action in this litigation. As to those sales— i.e., sales between July 22, 2009 and the end of the class period January 31, 2010— those claims cannot be knocked out because under Ninth Circuit authority, “each time a defendant sells its price-fixed product, the sale constitutes a new overt act causing injury to the purchaser and the statute of limitations runs from the date of the act.” Oliver v. SD-3C LLC, 751 F.3d 1081, 1086 (9th Cir. 2014). Therefore, conspiracy-inflated sales from July 22, 2009 through January 31, 2010 are within the express four year limitations period and not barred. The significant question is whether sales occurring prior to the four year period are timely under other applicable theories.
A. Discovery Rule
Plaintiffs argue that my conclusion that the discovery rule can toll Sherman Act claims is “law of the case,” and as defendants failed to move for reconsideration or otherwise show that reconsideration of that determination is appropriate, I should not revisit the issue. Defendants, on the other hand, rely on language from the Order on the motions to dismiss that the discovery rule “tolled the otherwise applicable statutes of limitations, at least at this pleading stage.” Nongshim MSJ 10 n.14. The question of whether plaintiffs pleaded sufficient facts to show that the discovery rule applied to their claims {e.g., whether plaintiffs were on notice of their injuries) is fact dependent. The determination that the discovery rule applies under the Sherman Act was a legal determination that was not fact dependént. What defendants seek to challenge here is the legal question, not the factually dependent one.
Defendants point out that following my November 2014 Order, the Hon. Lucy Koh expressly disagreed and followed what she deemed to be “clear U.S. Supreme Court authority and the overwhelming majority of Circuits [that] have explicitly held that antitrust claims are subject to a pure injury rule, not a discovery rule.” In re Animation Workers Antitrust Litig., 87 F.Supp.3d 1195, 1210 (N.D. Cal. 2015) (Animation I). While the Ninth Circuit has not directly addressed the question, plaintiffs do not dispute that only one circuit has applied the discovery rule to Sherman Act claims. See In re Copper Antitrust Litigation, 436 F.3d 782, 789 (7th Cir. 2006).
In their Opposition, plaintiffs spend much time dissecting the authorities Judge Koh relied on in support of her conclusion in Animation I. They argue that those authorities do not clearly reject application of the discovery rule under the Sherman Act, but simply apply the “pure injury rule” to situations where the plaintiffs injury is immediately known or question the application of the discovery rule to antitrust claims in dicta. Oppo. 7, n.2. Plaintiffs also rely on civil RICO cases, whose statute of limitations are likewise governed by 15 U.S.C. § 15b, that apply the discovery rule. See, e.g., Pincay v. Andrews, 238 F.3d 1106, 1109 (9th Cir. 2001) (“[w]e have continuously followed the ‘injury discovery1 statute of limitations rule for civil RICO claims”). Judge Koh rejected that line of argument by noting that the Supreme Court in Klehr v. A.O. Smith Corp., 521 U.S. 179, 188, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) distinguished the “pure injury accrual rule... [as] it applies in traditional antitrust cases[,]” from the discovery accrual rule in the civil RICO context where many claims sound in fraud. See Animation I, 87 F.Supp.3d at 1209. Finally, plaintiffs contend that no circuit has rejected •the discovery rule as applied to antitrust injuries where plaintiffs were unaware of their injuries at the time they occurred, and note the only circuit to have directly addressed those facts applied the discovery rule. See In re Copper Antitrust Litigation.
I need not choose a side on this split in authority. As discussed below, I conclude the fraudulent concealment exception'to the four year statute of limitations applies.
B. Fraudulent Concealment and Affirmative Acts
In their motions, defendants do not directly contest my prior conclusion that fraudulent concealment would toll the statute based on the allegations in plaintiffs’ complaints. Nor do they attempt to undermine those allegations, based on the evidence that was adduced after that initial ruling. Instead, in their reply briefs, they attack plaintiffs’ showing of affirmative acts in support of fraudulent concealment.
As I noted in my November 2014 Order, “[fraudulent concealment tolls otherwise applicable statutes of limitation where (i) affirmative acts by defendants conceal their wrongful conduct from plaintiffs, (ii) plaintiffs are actually ignorant of the wrongful conduct, and (iii) there was reasonable diligence by the plaintiff to discover the misconduct in response to any information it may have about that conduct.” Fenerjian v. Nongshim Co., Ltd., 72 F.Supp.3d at 1078.
Plaintiffs’ evidence of affirmative acts that defendants took to keep their conspiracy secret requires close analysis. On the next several pages, I' indent the asserted facts one by one and discuss what the evidence actually shows:
• Defendants staggered their price increases to . minimize the chance that their anticompetitive agreement would be detected. See Decl. of’ Russell W. Mangum III, Ph.D. in Support of DPPs’ Mot. for Class Certification ¶ 40 (“Mangum Decl.”) (Dkt. 363-6);
While Mangum analyzed in depth the price changes, and felt the pattern of price changes supported a conclusion of collusion-based in part on the fact that all defendants raised their prices following Nongshim’s actions—the portion of the Mangum Declaration cited by plaintiffs says nothing about staggered prices or the intent behind that staggering. See Man-gum Deck, ¶ 40.
• Defendants communicated by phone, rather than by email or fax, to conceal the frequency and content of their communications. Yu Deck, Ex. 37 at 34 (Kyung Ju Kim Tr., noting that price increase period information was exchanged over the phone or in person, but not by fax or email because “[t]here is' a chance that someone may see it.”); Deck of Stephanie Cho (“Cho Deck”), Ex. 1, Dong Hee Kang Tr. at 54:21-55:26.
Kyung Ju Kim is a former Samyang Market Survey Team department head. Cho Deck Ex. 15 (Kyung Ju Kim Confirmation Statement). He initially testified that he communicated about sales and promotions with Ottogi and Nongshim employees by fax, phone, and in person. Yu Deck, Ex. 37 at 31, 34 (Dkt. No. 547-41) (Kyung Ju Kim Examination Report). He later indicated that information about “price increase period” was “done over the phone” and “in person” if there was time, but “not at all” by fax or email because “[t]here is a chance that someone may see it, so we didn’t do it like that.” Id. at 34. Defendants point out that Kim also appeared to testify that he did not exchange non-public “price information” with competitors, and that he only asked his contacts for more details after he heard generally about competitor price increase “in the market.” Id. at 5, 6.
Kim’s testimony as a whole is somewhat confusing and the parties have different glosses on it. It suggests that, while Kim may not have disclosed to competitors exactly when price increases were going to be imposed or what the specific price increases would be, he disclosed non-public information about the “price support period” through methods that would not leave a trail and sought more general information (if not the exact specifics) about otherwise non-public timing and price increase information from competitors.
Dong Hee Kang, another Samyang employee, confirmed in his deposition that he had the cell phone numbers of at least one similarly situated employee from Nongsh-im (Yoon) and another from Ottogi (Seok Ho Hong) so he could call them “because it was easier," and that in 200,5 Kang had phone calls with both Nongshim and Otto-gi about ramen price increases. Cho Decl., Ex. 1, Dong Hee Kang, Depo. Tr. at 21:6-22:15; 26:9-17, 36:3-25, 54:21-55:25. At most, Kang’s testimony establishes that phone calls were made to discuss pricing in 2005, not that employees were instructed to .or otherwise avoided using email or faxes,
• Ottogi destroyed various pricing memos referring to competitor contacts after the Korea Fair Trade Commission (“KFTC”) commenced .its investigation and Ottogi altered other price memos to delete any reference to competitor information af- , ter the KFTC commenced its investigation. Mot. , to Sanction Ottogi For Spoliation 4-12 (Dkt. 420); Deck of Stephanie Cho In Support of Motion to Sanction Ottogi for Spoliation ¶¶ 11-62 (“Ottogi Sanctions Cho Decl.”), and corresponding Exs. (Dkt. 420-1);
Although I concluded that there was an insufficient connection between the alleged conduct in Korea . and this litigation to support imposing sanctions in this action, the reasonable inferences drawn in plaintiffs’ favor from the evidence presented on the sanctions motion support that Ottogi altered documents (specifically, a January 2004 memorandum and a 2006 memorandum) for production to the KFTC. Having reviewed in-depth the evidence presented by both’ sides on the sanctions motions and construing the evidence in plaintiffs’ favor, there is a significant inference of intentional document alteration to remove evidence of conspiracy and attempt to convince KTFC of other justifications (raw material price increases) to hide the conspiracy.
For example, plaintiffs presented significant evidence regarding the “altered” 2004 and 2005 memoranda that Ottogi: (i) removed information evidencing the relationship between ■ Nongshim and Ottogi’s prices (e.g., .Ottogi following Nongshim’s lead); (ii) removed a chart comparing Nongshim’s to Ottogi’s prices; (iii) deleted references to Samyang and Yakult; and (iv) “falsely” - represented that the 'purpose of the price increases were to capture escalation in raw material prices. While Otto-gi has explanations for the discrepancies between the older versions and the “recreated” versions of these documents (e.g., they recreated at the request of the KFTC or the initial versions were merely drafts), it is a jury question to decide what the more credible explanations are.
• Nongshim and . Ottogi destroyed competitor communications concerning price and other sensitive information. See Mot. to Sanction Ottogi For Spoliation8-14 (Dkt. 420); Otto-gi Sanctions Cho Decl. ¶¶ 11-62, and coiTesponding Exs. (Dkt. 420-1); Mot. to Sanction Nongshim for Spoliation 8-13 (Dkt. 416);. Decl. of Stephanie Cho In Support of Mot. to Sanction Nongshim for Spoliation ¶¶ 92-106 (“Nongshim Sanctions Cho Decl.”) (Dkt. 416-1), and corresponding Exs. As a result of this destruction, few or no documents from key witnesses were produced. Ottogi Sanctions Cho Decl. ¶¶ 47, 54; Nongshim Sanctions Cho Decl. ¶¶ 80-105; and
• Ottogi implemented a rigorous “auto-delete” protocol on its email servers after the KFTC commenced its investigation that destroyed substantial quantities of relevant documents. Cho Decl., Ex. 5 (Se-Chang Lee Tr. (4-5-2016) .at 13:5-16:2, 19:17-21:5; 28:10-19; 40:ll-r41-18); Ottogi Sanctions Cho Decl, ¶¶ 47, 54;.
The evidence from the sanctions motions showed that both Nongshim and Ottogi had limited document preservation policies (more aptly described as “destruction” policies) in place both before and during the KFTC investigation. Again, I did not find a sufficient connection between the defendants’ failures to preserve documents and duties that might have run to the KFTC and this jurisdiction that would support sanctions. However, construing the evidence in plaintiffs’ favor, there is an inference that defendants intended or other-' wise benefitted from the destruction of adverse evidence under their existing or newly implemented document destruction policies.
• Nine days after the KFTC’s onsite investigation, Nongshim employee Sung Soo Park began communicating with competitors via his personal email address, “pss0998@naver. com”, to avoid detection. See Cho Decl., Ex. 2 (Nongshim’s Supplemental Response to. IPPs’ Interrogatory No. 15); Chó Deck, Ex. 3 (Sung Soo Park Depo. Tr. at 41: 11-18); Cho Deck, Ex. 4 (SHD00003117-59T at 57-58); Vaughn Deck ¶ 18;
Thó testimony and documents, according to plaintiffs’ expert James Vaughn, shows Park communicating from a personal email account with employees at Ottogi, Yakult, Samyang, and other Nongshim employees ‘(to their Nongshim email accounts) of pricing and sales information. Cho Deck, Ex. 4; Declaration of James Vaughn [Dkt. No. 567-2], ¶ 18. Defendants’ forensic expert, Samuel Rubin, disputes whether the documents at issue are emails from Park, given the formatting issues. Declaration of Samuel S. Rubin [Dkt. No. 585-3] ¶¶ 21-23. Assuming that Vaughn is correct, the persuasiveness of this evidence as’ ah affirmative act is still very limited; given that some 'of the emails were also apparently sent to other Nongshim employees at their work email accounts, presumably defeating any inference that the private, email was used to hide the trail at Nongshim. Vaughn Deck ¶ 18.'
• The conspirators met each other away from their places of business to exchange information and used legitimate meetings of the Ramen Assembly as a cover for anticompetitive conduct. See Cho Deck, Ex. 6 (Soo Chang Ahn Depo. Tr. at 42:2-43:17; 67:10-18);
Soo Chang Ahn, a Samyang executive, testified that he attended the yearly Ra-men Transaction Order Association (RTOA) meetings, and that at the March 2001 meeting pricing information was discussed between employees of Nongshim, Ottogi, and the other alleged conspirators. Cho Deck, Ex. 6, Soo Chang Ahn Deposition Tr. at 70:5-23, 73:4-74:2, 77:16-79:25 (Dkt. No. 567-4 at ECF 90). The cites relied on by plaintiffs, however, do not show Ahn admitting that these meeting took place “away” from places of business other than at the RTOA meetings. Ahn also testified that his reports at Samyang would report to him information regarding price increases and timing from competitors, as well as the duration of old price support. Ex. 6 Ahn Dep. Tr, 90, 93, 94.
• Nongshim justified its price increases by giving false and pretextual reasons that were materially misleading. See: (1) Cho. Deck, Ex. 7 (ROKOOOOll-14, 16-18, 21, 23) (letters to customers stating that increase costs of goods were the reasons for prices); (2) Cho Deck, Ex. 8 (Krith Roth Depo. Tr. at 29:8-30:12) (when conveying price increases to certain customers, NSA employee did not provide the customers with Nongshim’s actual COGS, but merely provided them with articles suggesting the ingredient costs went up); (3) Cho Deck Ex. 9 (Sunny Kim Depo. Tr. at 45:23-46:3 and 46:20-21) (“when we get a price increase, we would generally say raw material costs went up in general. So then that’s kind of the explanation to the customer, just try to- you know, say it in a nice way.. .We will try to say that to our customer. That’s just kind of how it’s been.”); (4) Ottogi noted in an internal memo “Nongsh-im stated to the media regarding background of price increase that the main factors for prices increases were increases in the production costs.... However, the main reason for Nongshim’s ramen price increases is that...sales growth can be achieved only by increasing prices, by launching new high priced products, and so on.” Cho Deck, Ex. 10 (OTGKR-0018659T); (5) Cho Deck, Ex. 11 (RNA0001409T-1414T, 1416T-1422T and RNA0001402T-1404T) (newspaper articles in the U.S. stating that prices are going up due to increased costs); (6) Cho Deck, Ex. 96 at OTGAM-0040904T (Ottogi price lists to customers claiming it must raise prices due to increased material costs); and (7) prices of Korean Ramen increased substantially during the class period and that the delta between the cost of manufacture and the sales price doubled when compared to the pre-conspiracy benchmark period. See Deck of Aan Cox (“Errata Cox Deck”), Ex. 12.2 (Dkt. 441-6, 441-8); Mangum Reply Deck In Support of Class Certification (“Mangum Reply”) (Dkt. 466-8), Ex. 29.1-R.
There is evidence that Nongshim America, Inc. (“NSA”) publicly (at least to the Direct Purchasers) attributed its increased prices in imported products to increased raw materials (including oil, petroleum, and other costs), as well as currency exchange rates. See, e.g., Cho Deck, Ex. 7 (May 8, 2005 customer letter; May 19, 2006 customer letter; April 2007 customer letter). Ottogi, in a price list provided to Direct Purchasers, ascribed the 2008 price increases to a rise in global grain prices and exchange rates. Cho Deck, Ex. 96.
If asked about price increases, NSA employees Krith Roth and Sunny Kim would respond by blaming increased raw material and fuel costs. Cho Deck, Ex. 8, Krith Roth Depo. Tr. at 29:8-30:12; Cho Deck, Ex. 9, Sunny Kim Depo. Tr. at 45:23-46:21. The explanations given by Nongshim for price rises (and the decrease in 2010) to the media from 2003 through 2010 (contained in an Ottogi memo and in news reports from Korean-American media outlets) are raw material costs and demand fluctuations.
Generally, the sorts of affirmative acts described in the preceding pages— public pretextual statements, alteration or destruction of documents, and evidence that employees used methods to communication sensitive information that would not leave a “trail”—are sufficient to support fraudulent concealment tolling statutes of limitations. See, e.g., In re Animation Workers Antitrust Litig., 123 F.Supp.3d 1175, 1200-01 (N.D. Cal. 2015) (Animation IT) (“the Court finds that Plaintiffs have sufficiently alleged that both defendants made misleading, pretextual statements and took affirmative steps to keep the alleged conspiracy a secret” with affirmative clandestine steps including those made to “eliminate paper trail” of conspiracy)(in-temal quotations omitted); In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.Supp.2d 1109, 1119-20 (N.D. Cal. 2008) (finding sufficient allegations of pretextual explanations for price increase and affirmative efforts to ensure secrecy of conspiracy). Plaintiffs do not need to show at trial that raw materials prices were totally irrelevant to the price increases to demonstrate pretext, but rather that the level of price increases were in excess of what was necessary because of the collusive conduct. See In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-2420 YGR, 2014 WL 309192, at *4, *16 (N.D. Cal. Jan. 21, 2014) (where price increases were blamed on increases in raw materials, which was in part true, pretext was still alleged where increase in raw materials was used a pretext for “unwarranted” price increases by defendants).
In addition to contending that this evidence does not show what plaintiffs assert it does, Ottogi makes a number of additional arguments. First, Ottogi argues there is little to no evidence of its affirmative acts. Acts by Ottogi include, at the very least, document alteration in response to KFTC investigation as well as the 2008 price list conveying to DPPs allegedly false or substantially incomplete reasons for those price increases. More fundamentally, necessary “affirmative acts” may be established through the acts of Ottogi’s alleged co-conspirators. See Animation II, 123 F.Supp.3d at 1206 (citing cases).
Ottogi also argues that the affirmative acts to conceal the conspiracy must have been directed at these plaintiffs or intended to deflect litigation. Ottogi Mot. 25. I disagree. To the first argument, as Judge Koh explained: “[defendants cite no Ninth Circuit authority, or any authority for that matter, that requires Plaintiffs to show that Defendants’ affirmative acts were for the purpose of misleading Plaintiffs. To the contrary, one court in this circuit has specifically held that ‘[t]he proper focus ... is not whether the intent was to conceal the information from plaintiffs, but whether the ‘concealment ... prevented [plaintiff] from being alerted.’ ” Animation II, 123 F.Supp.3d at 1202 (quoting In re Coordinated Pretrial Pro ceedings in Petroleum Prods. Antitrust Litig., 782 F.Supp. 487, 490 (C.D. Cal. 1991)).
With respect to the second argument, Ottogi notes that in denying plaintiffs’ motion for sanctions, I concluded that there was no evidence that Ottogi de-stroyéd or altered documents to “impede this litigation.” Ottogi Reply 15. Ottogi’s argument is unpersuasive for two reasons. First, my point in the Order denying sanctions was that there was not sufficient evidence that Ottogi sought to frustrate litigation in this country in order for me to have jurisdiction or otherwise impose .discovery-type sanctions based. on conduct that at the time was possibly intended to impact the KFTC investigation and keep evidence regarding coordinated price setting hidden. Second, the Ninth Circuit has not adopted' the “deflecting litigation” qualification to affirmative acts sufficient to show fraudulent concealment. Ottogi’s source is merely a passing reference to a parenthetical cite in Grimmett v. Brown, 75 F.3d 506, 515 (9th Cir. 1996). In that parenthetically referenced case, Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., the Fourth Circuit found that defendant’s failure to disclose its price fixing in response to a customer’s question about pricing was insufficient to show fraudulent concealment. It explained that “ ‘[fraudulent concealment’ implies conduct more affirmatively directed at deflecting litigation than that alleged here.” 828 F.2d 211, 219 (4th Cir. 1987).
The evidence of affirmative acts identified above, when considered in its totality, is sufficient to toll the Sherman Act claims under a fraudulent concealment theory.
C. State Law Claims
Defendants argue that' the state law claims—based on California, Massachusetts, Michigan; Florida, and New York law—should likewise be dismissed because they too are governed by four year (or three year) státutes. Nongshim Mot. 11; Ottogi Mot. 23-24. In their opening motions, defendants do not address whether the discovery rule or fraudulent concealment would apply to toll those statutes. Instead, they argue in their Replies that the actual injury rule (instead of the discovery rule) applies at least to plaintiffs’ claims under the Cartwright. Act. Ottogi Reply 13-14.
With respect to the Cartwright Act claims, plaintiffs place heavy weight on Aryeh v. Canon Bus. Sols., Inc., 55 Cal.4th 1185, 151 Cal.Rptr.3d 827, 292 P.3d 871 (2013), where the California Supreme Court held in a case involving California’s Unfair Competition Law (“UCL”) that when a statute fails to define accrual, the presumption of common law equitable tolling rules (like the discovery rule) will normally apply. Although Aryeh was not a Cartwright Act claim, the court based its holding in part on the lower court’s erroneous application of federal antitrust laws to the tolling question, noting that while the Cartwright Act is often interpreted consistently with the Sherman and Clayton Acts, that is not conclusive with respect to the reach of the Cartwright Act. Id. at 1195, 151 Cal.Rptr.3d 827, 292 P.3d 871. In addition, as plaintiffs point out, both the UCL and Cartwright Act are silent on accrual and use virtually identical wording as to the statute of limitations.
Defendants respond that following Ar-yeh, .Judge Koh has applied the actual injury rule and rejected the discovery rule for Cartwright Act claims. That is not quite accurate. Defendants are correct that in Ryan v. Microsoft Corp., No. 14-CV-04634-LHK, 2015 WL 1738352, at *16 (N.D. Cal. Apr. 10, 2015), Judge Koh did not apply the discovery rule to the Cartwright claims in an antitrust case dealing with agreements to-.restrict employee solicitations. She concluded that Aryeh did not definitively answer the question of whether the discovery rule or fraudulent concealment would apply to either Cartwright or UCL claims, but rejected the application of any equitable tolling in the case before her because plaintiffs failed “to adequately allege an equitable exception or tolling doctrine that would render Plaintiffs’ state law claims timely.” Her decision was based on a failure of facts that would support equitable tolling, not a bright line rejection of it under California law. For the reasons discussed above, fraudulent concealment applies to the Cartwright Act claims.
Defendants do not separately address in their briefs whether the discovery rule or fraudulent concealment apply under the other state laws at issue. I have no basis to grant summary judgment on any of the state law claims as time-barred.
II. KOREAN SUPREME COURT DECISION AND INTERNATIONAL COMITY
Nongshim argues that principles of comity require that I defer to the Korean Supreme Court’s decision in overturning ■ the KFTC’s ' conspiracy findings and fines. Nongshim also argues that the same principles counsel against finding a conspiracy in light of the Korean government’s role in setting prices, a role explained and relied upon by the Korean Supreme Court in overturning' the KFTC findings and fines. ' ■ '
International comity “is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard, both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its. laws.” In re Simon, 153 F.3d 991, 998 (9th Cir.1998) (internal quotation omitted). “International comity is a doctrine of prudential abstention, one that ‘counsels voluntary forbearance when a sovereign which has a legitimate claim to jurisdiction concludes that a second sovereign also has a legitimate claim to jurisdiction under principles of, international law.’” Mujica v. AirScan Inc., 771 F.3d 580, 598 (9th Cir. 2014) (quoting United States v. Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir.1997)).
There- are two doctrines recognized under “international comity,” The first is “legislative or prescriptive comity,” which “guides domestic courts as they decide the extraterritorial reach of federal statutes.” Mujica, 771 F.3d at 598. The second “is referred to as ‘comity among courts’ or adjudicatory comity, which ‘may be viewed as a discretionary act of deference by a national court to decline to exercise jurisdiction in a case properly adjudicated in a foreign state.’ ” Id. at 599 (iquoting In re Maxwell Commc’n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). Considerations in determining whether to abstain for comity to an international tribunal include the strength of the various governments’ interests, the adequacy of the foreign forum, any conflicts between the laws of the jurisdictions, and the extraterritorial reach of the laws at issue. Id. at 600-604. In looking to the various governmental interests, the critical factor is where the conduct in question took place, “conduct” including not only the actions of the defendants but the injury suffered by plaintiffs. Id. at 605 (citing Torres v. S. Peru Copper Corp., 965 F.Supp. 899, 909 (S.D.Tex.1996), dismissing action under comity where the “activity and the alleged harm occurred entirely in Peru [and] Plaintiffs are all residents of Peru.”) (emphasis added).
Nongshim argues that I should abstain under the adjudicatory comity doctrine and defer to the Korean Supreme Court decision that overturned the findings of the KFTC. The Korean Supreme Court concluded that the evidence of an express agreement being reached at the Representative’s Meeting was hearsay (the secondhand Samyang statements and inconsistent and not fully credible Ahn statements about whether he attended), and therefore the court could not “rule out a possibility that it was merely ambience of resonance for a desire for [Nongshim] to take an initiative and lead the price increase” given that the companies had been prevented by economic circumstances from increasing their prices in the past years. Korean Supreme Court decision (January 2016), Ex. 24 to Yu Decl. [Dkt. No. 547-27] at 7. The court noted that the degrees of difference in'price increases made it “hardly possible” to specify any specific substance of agreement “beyond the point” that ramen prices should be increased in 2001. Id. The court concluded that it was “unclear” if “a definitive agreement that can impact competition in the long run” was agreed to at the Representative’s Meeting, and as a result declined to find that subsequent exchanges of information were in furtherance of an agreement reached at the Representative’s Meeting. Id.
As to whether there was a “tacit agreement” regarding the price increases following the initial 2001 increases, the court noted that some of the evidence was not consistent with an agreement and did not support an “inference” of “mutual connectivity of intention.” Id. at 8. That evidence included the use of different percentage increases in price, a history in the industry of “follow the leader” pricing, the role of the Korean government in establishing de facto pricing for the leader, the product variations offered by the defendants, and use of the “old price” support system (which could be used either to support a collusive agreement or an “instrument to engage in aggressive mutual competition”). Id. at 8-9.
The Korean Supreme Court weighed evidence (presumably consistent with principles of Korean law regarding admissibility and sufficiency), made credibility determinations, and determined what the inferences supported on a matter that was within its jurisdiction—whether the KFTC’s order concluding there was a conspiracy and as a result imposing fines on defendants was adequately supported under Korean law. There is a different question before this Court: did. defendants’ conduct as it impacted sales of products in the United States violate federal and state antitrust and unfair competition laws? This is not a situation where, for example, Korean plaintiffs are trying to recover for injuries suffered in Korea at the hands of United States or Korean corporations. See Mujica, 771 F.3d at 609. The allegations (the evidence of which will be weighed below) are that a conspiracy hatched in Korea was exported and impacted the prices of goods defendants sold in the United States. The injuries for which recovery is sought here occurred in the United States.
None of the cases cited by Nongshim in support of its comity argument address similar facts or connections to American plaintiffs injured by sales that occurred in the United States. Instead, the more apposite case is F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004), where the Supreme Court recognized that:
No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.
While what the Korean Supreme Court did is similar to what a jury will be called upon ' to do here—weigh the evidence, make credibility determinations, determine which inferences are supported by the evidence—the jury may weigh the evidence and • inferences differently, applying the law of the United States as instructed. The evidence may well exceed the amount and type of evidence that was before the Korean- Supreme Court, such as the document alteration and destruction as well as expert economic analyses.
Also underlying this issue are the parties’ different views of the role the Korean government played during the relevant time period in approving prices for some subset of the ramen market. Nongshim, generally, contends that the Korean government exercised tight control and made Nongshim seek approval prior to increasing prices on its leading products. Plaintiffs dispute whether Nongshim’s prices were “controlled” by the Korean government, and point to evidence that at most Nongshim voluntarily included the Korean government on its contémplated price increases for some of the price increases at issue. Oppo. 54-55. According to plaintiffs, this voluntary and non-binding process cannot absolve.Nongshim from its responsibility for price-fixing. Moreover, even if not technically or practically mandatory for Nongshim, at most the Korean government’s role limited the top price Nongshim could charge and does not absolve Nongsh-im from the consequences of agreeing with the conspirators that they should follow suit and raise prices within a reasonable time to protect everyone’s market share. See, e.g., Aim Depo. Tr. [567-4 at EOF 90] at 165:6-166:4 (describing his understanding of the process as a “discussion or negotiation” with the government and that Ramen companies are free to compete below the government approved price); Cho Decl., Ex. 12, Deposition Transcript of Jung Soo Kim [Dkt. No. 567-4] at 31:5-10.
Again, the jury will be tasked with determining disputes of fact, considering the admissible evidence and expert opinions. The principles of international comity do not require that I defer to the findings of the Korean Supreme Court on the question of whether defendants’ sales in the United States harmed consumers in the United States as the result of an agreement to fix prices.
III. EVIDENCE OF CONSPIRACY IN KOREA
A. Direct Evidence: Witness Testimony
Plaintiffs rely on the testimony of three individuals who were Samyang executives or employees as . direct evidence of the conspiracy: Jung Soo Kim, Soo Chaiig Ahn, and Jong Min Kim. I discuss the materiality of that testimony below.
1. Jung Soo Kim
Jung Soo Kim, Samyang’s “Consultant Advisor” and President, testified that she was aware of a meeting of Ramen company executives that occurred in late 2000 or early 2001. Deposition Transcript of Jung Soo Kim [Dkt. No. 567-4] at 27:17-20. Kim recalls that Samyang executive Choi Don Joong attended. Id. at 37: 6-14. Joong reported'back to Kim that at the meeting (hereafter “Representatives’ Meeting”), there was a conversation that because ra-men prices could not be raised for two to three prior years, “if Nongshim raised the price, then we would follow Nongshim’s act.” Id. at 38:6-15. It was Kim’s understanding that representatives from Nongshim, Ottogi, and Paldo were at that meeting, but she-was “not certain.”- Id, at 39:18-25, 40:3-20. Kim testified, “I don’t know if I can characterize it as they reached some kind of consensus,” but Joong expressly confirmed that the discussion included that if Nongshim raised prices, then the others would follow. Id. at 42:22-25.
Later in Kim’s testimony, after her recollection was refreshed with a prior written statement, she agreed that her understanding of what happened at the meeting was that the representatives -“agreed to increase Ramen price by collaborating with one another.” Id. at 56:2-57:4. She also testified that “information concerning sales or marketing or marketing research among Ramen companies were exchanged either in person or via email, and I would receive a report from my subordinates as to such information.” Id. at 65:5-10. She stated that she saw “advance price information” collected by. her employees for Nongshim prices, but not for Ottogi prices. Id. at 67:19-24. Kim also understood that her employees exchanged “advance price information” with both. Id. at 69:10-70:9. Even more specifically, it was her understanding that Samyang shared non-public price information with Nongshim, Ottogi, and Paldo before Samyang had publicly announced what its prices would be. Id. at 76:12-17. When Samyang initiated a price decrease in January 2010, it did so to eliminate the perception of price-fixing. Kim said, “[T]his indicates our' determination .or reflects our determination that we will not participate in any type of price-fixing activities, and we do not want to be investigated by Fair Trade Commission.” Id. at 98:7021. Finally, she confirmed that she would receive information from Soo Chang Ahn (who was the head of sales at the time) and Kim Bong Hoon (who was in charge of marketing) about Nongshim’s planned price increases and then Samyang would prepáre for its price increases. Id, at 176:16 -177:24.
Defendants attack Kim’s testimony as hearsay, speculative, and lacking in personal knowledge.. They point out that the Korean Supreme Court disregarded her testimony regarding the initial Representatives’ Meeting in March 2001because it was hearsay—-she.did not attend the meeting. Ottogi also notes that she offers essentially no testimony that Samyang received non-public price information from Ottogi, a point with, which I agree. But her testimony does support a conclusion that Nongsh-im, Samyang, and Yakult were actively part, of the conspiracy as she understood it; to effectuate that conspiracy, Samyang provided non-public price information to Ottogi.
2. Soo Chang Ahn
Soo Chang Ahn was the Deputy Division Head of Sales at Samyang during the relevant time. Ahn attended the March 2001 RTOA meeting on behalf of Samyang, and testified that representatives from Ottogi, Nongshim, and Paldo were there to the best of his recollection. Cho Decl., Ex. 6, Soo Chang Ahn Deposition Transcript [Dkt. No. 567-4 at 90] at 64:20-24, 67:2-9. The issue of price increases was discussed at that meeting, although there were no specifics at to exact prices given the vast number of products at issue. Ahn admitted that it “was possible that question concerning the increase of—percentage of price increase—something like that might have been asked.” 69:5-70:7. While Ahn proposed a double-digit percentage increase and Ottogi concurred, Nongshim recommended exercising caution given “negotiations” underway, presumably with the Korean government. Id. at 70:20— 72:13. According to Ahn, Nongshim’s representative—Dong Gyun Yoon—suggested the end price increase to be initiated by Nongshim would be sufficient “so that we can have a profit.” Id. at 73:20-74:2; 78:24-79:6.
Ahn confirmed that the employees of Samyang, Ottogi, and Yakult "exchanged “advance information about price increase” and that the information came into Sa-myang’s “market research department.'” Id. 80:11-81:19. Those exchanges included timing of price increases and periods- of “old price support.” Id. at 90:11-15; 91-93. Using that information from its competitors, Samyang would determine what its plan would be. Id. at 94:9-14.
Defendants attack Ahn’s testimony as hearsay, lacking in personal knowledge, and contradictory. They note that the Korean Supreme Court disregarded Ahn’s testimony because records of the March 2001 RTOA meetings did not show Ahn in attendance, and argue that plaintiffs have failed to adequately rebut that point. Yu Decl., Ex. 33 (March 2001 RTOA Minutes, not showing Ahn in attendance). But plaintiffs rely on Ahn’s deposition testimony, where he testified that he personally attended that meeting. Deposition of Soo Chang Ahn [Dkt. No. 567-4 at EOF 90] at 43-44. Ottogi argues that Ahn’s testimony is also undercut by the Witness Examination of Guen Ho Choi, a representative of Ottogi who attended the March 2001 conference and testified that price was not discussed by the attendees. Yu Deck, Ex. 35 [Dkt. No. 547-39] at 2. However, Choi’s testimony, even if admissible, does not definitively undercut Ahn’s but instead raises a question of fact.
3. Jong Min Kim
Plaintiffs also rely on the testimony of Jong Min Kim, a Samyang employee who testified about meetings that occurred in March 2008. At the first meeting, an “administrator’s meeting” on March 19, 2008, participants discussed that Nongshim and Samyang had already raised their prices and what the status of Ottogi’s and Ya-kult’s expected price increases was. Cho Deck, Ex. 13, Deposition Transcript of Jong Min Kim [Dkt. No. 567-4 at ECF 179] at 30:8-31:16. A week later, at the 2008 RTOA meeting, prices were again discussed, including that once prices had been increased (which had occurred for all but Yakult), they were unable to lower them. Id. § at 71:16-72:14. All of the alleged conspirators—Nongshim, Ottogi, Sa-myang, and Yakult—were at this meeting. Id. at 43:4-44:5.
B. Corroborating Evidence
Plaintiffs characterize the “follow the leader” pattern—where market leader Nongshim would raise its prices first and the other companies would follow—as being established following the March 2001 RTOA meeting. Oppo. at 18. Defendants counter, relying in part on the Korean Supreme Court decision, that the follow the leader pattern existed well before then (since the 1980s and including the time when Samyang was the market leader), and was a function of the de facto price controls imposed by the Korean government. Nongshim MSJ at 5-6; Ottogi MSJ at 5. Given the role the Korean government and the long-standing de facto follow the leader pricing, defendants contend that collusion cannot be inferred. Nongshim MSJ at 28; Ottogi MSJ at 7. Plaintiffs bolster their “express or tacit” agreement argument by relying on the information exchanges discussed below. But in the end, whether or not there was an express or implicit agreement, or whether defendants were simply following old, established pricing patterns raises a dispute of fact.
1. Monitoring and Exchange of Information by Alleged Conspirators
As noted above, Jung Soo Kim and Ahn from Samyang testified regarding how their employees, particularly those in “market research,” would exchange advance price information (including prices, timing, and length of old price support) with their competitors. Plaintiffs rely also on testimony from other Samyang employees on the Market Research Team who explained how the “lower level” sales and marketing employees were generally friendly and would gather for drinks or meals. These employees were trained, by Samyang to exchange information with their competitors. Yu Deck, Ex. 36, Jong Moon' Yui Witness Examination [Dkt. No. 547-40] at 5-6, 15 (Samyang head of Market Research was expected to and trained to “keep[ ] in communication with the competitor companies and mutually request! ] needed materials, and so' on,” and confirmed that Kyung Job Kim at Samyang was in charge of “external” duties including exchanging price increase information with competitors). Jong Moon Yui confirmed that the Samyang email address marektone@hanmail.net email was used to exchange emails with competitor companies, including information about price increases but he was not personally aware of whether the competitors’ price increase information was otherwise publicly known to others or had been disclosed at that time he received it and passed it along to his superiors. Id. at 13,15-16,
Plaintiffs also rely on Jong Moon Yui’s 2010 affidavit to the KFTC. Yui stated that his boss, Kyung Ju Earn, would mostly handle the price information exchange “around the time” of price increases, but that he “exchanged the information at the time of the 2005 price increase,” under Kim’s direction. Cho Deck, Ex, 14, Jong Moon Yui KFTC Statement [Dkt. No, 567-4 at ECF 189] at ¶ 7. While defendants were successful in getting Yui to testify in his witness examination that as of 2016, he did not have an independent recollection of the facts in his KFTC statement (and he refused to confirm the “opinions” in that statement drafted by “lawyers” that collusion occurred), at most the testimony from the witness examination raises issues of fact about Yui’s role and his understanding of Kim’s role in securing, collecting, and passing up the chain of authority information regarding competitors’ price changes and old price support.
Plaintiffs also rely on the Confirmation Statement of' Kyung Ju Kim, a former Samyang Market Survey Team department head. Cho Deck Ex. 15, Kyung Ju Kim KFTC Confirmation Statement [Dkt. No. 567-4 at ECF 213]. In his Confirmation Statement, Kyung Ju Kim testified that the most urgent information that needed to be exchanged with the competitors was about the price, the timing of the price increase and the duration of old price support system. Id., at 4, 6. As with Jong Moon Yui, the parties have differing views about the import and meaning of Kyung Ju Kim’s subsequent testimony in his Witness Examination. Plaintiffs contend his subsequent testimony confirmed that non public “price period” information was exchanged over the phone or in person , (and not by fax or email because of the trail). Defendants contend that his testimony confirmed that only public “price increase” information was exchanged among the competitors. Drawing appropriate inferences in plaintiffs’ favor, Kim seems to admit to exchanging, non-public information regarding the “price period” or old price support system in his witness examination although he does seem to deny circulating non-public “price information.”
Stepping back-to put this testimony (and the dueling interpretations offered by plaintiffs and defendants) in context, plaintiffs’ theory is . that Nongshim started the price-fixing process by spreading verbal, rumors about price increases. Then its competitors’ market research employees would reach out to Nongshim and figure out more about when the price increase might occur, the general parameters of the increase, and how long price support would last. Kyung Joo Kim Witness Examination (Yu Decl. Ex. 37) [Dkt. No. 547-41] at 5, 6, 32; Cho Decl., Ex. 10 at OTGKR-0018660T (Ottogi price reaction memo from 2005) [Dkt. No. 567-4 at EOF 133]; see also Cho. Deck, Ex. 19, Deposition Transcript of Bong Hoon Kim (Samyang’s Marketing Team Leader) [Dkt. No. 567-4 at EOF 252] at 128:5-7 (noting that Sa-myang. had information about Nongshim’s December 2004 price ■ increase “beforehand.”).
Defendants argue that the testimony of these low-level Samyang employees about conversations and information exchanges with their own low-level employees cannot prove an agreement to raise prices, especially when price setting is indisputably out of the control of these employees. But defendants misstate the point. These employees, according to some of the direct testimony, were tasked with gathering up price and price support system information . (much of which had not yet been publicly disclosed) and--passing it, up the chain to those—at least at Samyang—who did have the power, to set the prices. While defendants—through witness examinations—were successful in “walking back” and calling into question some of the testimony by some of these witnesses, those efforts do not fully undermine the testimony given to the KFTC. There are issues of fact regarding whether the information exchanged between lower-level employees was non-public and collected and passed up to managers who did have the power to set prices.
2. 2001-2004 Price Increases
Plaintiffs rely on the KFTC Supplement Confirmation Statement of Kyung Ju Kim, whose role was to be the point of contact with competitors for. the Marketing Department, the department involved in sharing “information regarding the price in-creáse” of Samyang and its' competitors, including the “most sensitive information.” Kim testified that he held-'that role from 2001 (upon the creation of the market survey team in 2001) until he resigned in 2006. Cho Decl., Ex. 15, Kyung Ju Kim May 2011 Supplement Confirmation Statement at 3. Kim’s boss, Bong Hoon Kim testified that in May 2001, he received Nongshim price information from. Kim. Cho Dec!., Ex. 17, Deposition Transcript of Bong Hoon Kim at 88:17-92:15. He also testified that in late 2003, Kim passed along information about Nongshim’s price increases (“he told me that prices will go up”). •
Bong Hoon- Kim Depo. Tr. at 73:17-74:11. Also, a “draft” of .Nongshim’s 2003 price increases was located in the SHD as well as in the custodial files of a Nongshim employee. Compare Cho Decl., Ex. 20 with Ex. 21. Another Samyang employee met with a Yakult employee in 2003 and learned when the price of Yakult products would be raised and how long old price support would last. Cho Deck, Ex. 22, Deposition Transcript of Eui Ryul Kim' at 17:25-18:7.
Regarding Ottogi, plaintiffs rely on a January 2004 memo, where Ottogi’s Kang Hoon Lee indicated that Ottogi would raise prices in response to Nongshim’s increase and mentioned information from Samyang and Yakult about when those companies might increase price—showing that the companies were communicating on the subject in advance of their price increases—and commented- on Nongshim’s concern about critical reaction but determination to go ahead with its price increase anyway. Cho Deck, Ex. 23. Ottogi contends that the only significant line in this January 2004 memo shows that Ottogi was determined to raise its prices because Nongshim did but in ways that would be efficient and facilitate sales. Ottogi Reply at 5-6. Ottogi, however, does not address the alleged non-public information in that memo from Samyang and Yakult.
3. 2004/2005 Price Increases
Plaintiffs allege that Nongshim circulated non-public price increase information to its competitors on December 10, 2004. See Bong Hoon Kim Depo. Tr. at 128:5-7 (Sa-myang had Nongshim December 2004 price increases “beforehand”). Nongshim received internal approval on December 20, 2004. Cho Deck, Ex. 25. It emailed its approved prices to Samyang on December 22, 2014 and implemented the price increase in December 24, 2014. Cho Decl., Ex. 14 (Jong Moon Yui April 1, 2010 KFTC Affidavit) at ¶ 28; Cho Deck, Ex. 25.
Plaintiffs note that when Samyang did not raise its prices within a month after Nongshim did in December 2004, ie., during the typical month-long Nongshim old price support period, Nongshim contacted Samyang to complain and demanded to know the date Samyang would increase its prices. Cho Deck, Ex. 19, Deposition Transcript of Bong Hoon Kim (Samyang’s Marketing Team Leader) at 121:3—124:12; 128:5-23; Cho Deck, Ex. 1, Dong Hee Kang Depo. Tr. at 20:20-22:16. Nongshim was forced to extend its normal one month old price support system through February and then through March (Cho Deck, Ex. 10; Cho Deck, Ex. 27 at OTGRM-0209-T), until Samyang and Ottogi “backed down” and announced price raises at the end of February.
According to Samyang employee Jong Moon Yui’s April 1, 2010 KFTC Affidavit, Yakult emailed its price increase plan to Samyang on January 11, 2005 (and raised prices on January 15), and Ottogi emailed the date of its price increase plan to Sa-myang on February 25, 2005. Jong Moon Yui April 1, 2010 KFTC Affidavit at ¶ 28; Cho Deck, Ex. 30 (document from SHD authored by “Ottogi” with last modified date of February 25, 2005 “February 25 document”). Samyang delayed (until it succumbed to Nongshim’s pressure) in order to expand sales in conjunction with its then lower-price and an ad campaign. Id.
Ottogi disputes the authenticity of the February 25 document found in the SHD, arguing that Samyang could have created it based on “guesswork.” Ottogi Reply 13. However, not only does the February 25 document have document-level metadata indicating that it was created by Ottogi, it also shows Ottogi’s proposed before and after increased factory and retail prices for a leading product. Those price increases were actually implemented thereafter. Sa-myang would have had to have remarkable prescient abilities to get both of those data points correct.
Ottogi also attempts to reduce the impact of the February 25 document by relying on a declaration from Bangwan Ku that sometimes Ottogi sent to customers its “near final” price lists before they were finalized. Declaration of Bangwan Ku [Dkt. No. 545], ¶ 8. Plaintiffs argue that this testimony contradicts Ku’s deposition testimony where he answered “no” when asked whether price lists were circulated prior to final approval. Cho Deck, Ex. 32, Deposition Transcript of Bangwan Ku at 23:6-24:4. The disputes over the interpretation and significance of Ku’s deposition and declaration testimony, as well as the significance and genesis of the February 25 document, show that material disputes of fact have been raised by plaintiffs whether the documents regarding the 2004/2005 price increase support their theory of conspiracy.
4. 2007 Price Increases
Plaintiffs argue that in 2007, Samyang used the private marketone@hanmail.net email address to circulate competitor information, and that by this time Nongshim employee Yeo Won Yoon was likewise using a private email address to email Sa-myang employees price information at their own private email accounts. Cho Decl., Exs. 34 (emails from NSK) & 38 (SHD screenshots). Samyang’s marketing team leader (Jin Woo Seo) testified that he was confident that from July 2006 through September 2008, Samyang was receiving advance information about Nongshim’s price intentions before it was public through Yui. Cho Deck, Ex. 18, Deposition Transcript of Jin-Wóo Seo at 66:2-25.
As for documentary support, plaintiffs contend that Nongshim notified its distributors of the prospect of price increases on February 23, 2007. On March 1, Nongshim set its increases in prices and emailed its competitors a document detailing shipping dates and old price support periods. Cho Deck, Ex. 38 (from SHD). According to a February 28, 2007 Ottogi memo, Ottogi had already been in touch with Samyang and Yakult to inquire about their plans for raising prices. Cho Deck, Ex. 39. According to the Ottogi memo, Samyang and Yakult informed Ottogi of the dates and scope of their contemplated price increases. Samyang disclosed its price increase plan to Nongshim and Ottogi on April 11, 2007, and raised its prices on April 16, 2007. Cho Deck, Ex. 40 (SHD email).
Plaintiffs allege that this time Ottogi was the company that attempted to delay its price increases. Around July 18, 2007, Samyang’s Jong Moon Yui had a conversation with Ottogi to discuss the market’s reaction to the price increases, according to an Ottogi memo of the same date. Cho Deck, Ex. 42. Ottogi sent a draft of its price increases to its competitors in second half of July (Cho Deck, Ex. 43 (SHD document)) and finalized its proposed price increases on July 23, 2007. Cho Deck, Ex. 44 (an Ottogi document that lists products in the same order as the SHD document in Ex. 43). The effective date of Ottogi’s increases was September 1, 2007. Cho Deck, Ex. 45.
During this timeframe, plaintiffs allege that the competitors continued to share market and sales information, including information about promotions, so that they could monitor the impact of Nongshim and then Samyang’s price increases on the market. Cho Deck, Exs. 14, 34. Ottogi also shared its quarterly sales performance. Cho Deck, Exs. 47, 48 (SHD documents, with Ottogi document-level metada-ta).
Defendants resp