Full opinion text
TABLE OF CONTENTS (Summary Judgment Motions Related to Plaintiffs’ Sherman Act, Wilson Tariff Act, Clayton Act and Robinson-Patman Act Claims) Pretrial Order No. 307 I. PRELIMINARY STATEMENT 1117 II. THE ANATOMY OF PLAINTIFFS’ CONSPIRACY CLAIMS 1124 III. THE FPS, FINAL STAGE CASE MANAGEMENT, AND THE SUM- 1130 MARY JUDGMENT RECORD IV. SUMMARY OF PRETRIAL EVIDENTIARY RULINGS 1135 V. STANDARDS GOVERNING SUMMARY JUDGMENT 1139 VI. LEGAL PRINCIPLES AFFECTING PLAINTIFFS’ SHERMAN ACT 1144 § 1 AND WILSON TARIFF ACT CONSPIRACY CASE A. Sherman Act § 1 1144 1. Introduction and Basic Principles 1144 2. Price Agreements 1146 a. The “Price Necessary to Get the Sale” 1147 b. Agreement to Increase Market Share 1147 c. Agreement to Fix Minimum Prices 1147 d. Agreement to Price Predatorily 1148 e. Agreement to Fix Low or Depressed Prices H48 f. Agreement to Fix Minimum Prices and a Second Agree- H48 ment to Violate the First g. Agreement to Deceive Government Authorities With Re- 1148 spect to Price 3. Market Allocation 1148 4. Membership in Trade Associations and Attendance at Meetings 1149 5. Exchange of Information Concerning Prices, Production and 1149 Inventory Figures, and Joint Forecasting 6. Product Standardization and Technical Research Exchange 1153 7. Secret Rebates 1154 8. Joint Activities in Promoting Public and Governmental Rela- 1155 tions and Joint Legal Action in Response to Common Problems B. Statutory Antitrust Standing Under § 4 and § 16 of the Clayton 1157 Act C. The Wilson Tariff Act 1162 D. The Law of Conspiracy in an Antitrust Context 1165 1. In General 1165 2. Fragmentation of the Plaintiffs’ Conspiracy Allegations 1166 3. The “Slight Evidence” Rule 1169 4. The Requisites of Circumstantial Proof of Conspiracy by Infer- 1170 ence from Consciously Parallel Business Behavior (a) Introduction 1170 (b) General Principles Concerning Inferences from Circumstan- 1170 tial Evidence on Summary Judgment Motions (c) Inferring Conspiracy from Parallel Conduct 1172 5. Vicarious Liability of Coconspirators: The Pinkerton Doctrine 1176 and Robinson-Patman Act and Clayton Act § 7 Violations 6. Requisites for Admissibility of Coconspirator Declarations 1178 VII. PLAINTIFFS’ SHERMAN ACT § 1 AND WILSON TARIFF ACT 1180 CONSPIRACY CASE AS TO TELEVISION RECEIVERS — EVIDEN-TIARY REVIEW AND DISCUSSION OF LEGAL SUFFICIENCY A. Introduction 1180 B. The Technological Development of Consumer Electronic Products 1182 and the Industrial Organization of Japanese Electronics Firms on the Foundation of Borrowed Technology C. The Closed Japanese Market 1183 D. Plaintiffs’ Expert Reports 1186 E. Plaintiffs’ Allegations About the Combined Economic Power of the 1186 Defendants and their Cartel F. The Manufacturers’ Agreements and the JMEA Rules; Operation 1187 of the Minimum Price Agreements and the “Five Company Rule” 1. General Background; Operation of the Minimum Price Provi- 1187 sions 2. Operation and Significance of the “Five Company Rule” 1189 3. The Agreements as Evidence of Conspiracy 1190 4. The Role of MITI 1191 G. Activities of Certain Groups and Associations in Japan 1195 1. Introduction; General Background 1195 2. The Sub Rosa “Conspiratorial” Meetings of Executives Re- 1196 vealed by the Six Company Case (a) Introduction; General Background 1196 (b) Evidence of the Home Market Aspect of the “Unitary” 1202 Conspiracy; the Plaintiffs’ “War-chesting” Claims (c) Evidence of the Export Aspect of the “Unitary” Conspiracy 1209 (d) The Six Company Case — Conclusion 1213 3. The EIAJ 1215 4. The JMEA and the Television Export Council 1221 5. The Market Stabilization Council, The Nine Essential Points of 1223 Implementation, and the Four Associations Conference H. The “Connection” Documents 1226 I. The “Intent” Documents 1230 J. Plaintiffs’ Allegations of Below Cost Sales 1235 K. Evidence of International Price Discrimination Between the United 1235 States and Japanese Markets L. Plaintiffs’ Evidence of the Operation of the “Predatory Export 1241 Rebate System for Collusive Concealment of Dumping” 1. Elements of the Rebate Scheme 1241 2. Alleged Collusion in the Export Rebate System 1245 M. Plaintiffs’ Evidence Concerning the Depletion and Destruction of 1251 the United States CEP Industry N. Plaintiffs’ Claims Concerning Defendants’ Acquisitions of U.S. 1253 Manufacturers and Their Establishment of Manufacturing Facilities in the United States 1. Introduction 1253 2. The Quasar Acquisition 1254 3. The Warwick Acquisition 1256 4. The Sanyo-Fisher Acquisition 1258 5. The Philips-Magnavox Acquisition 1258 6. Plaintiffs’ Claims About Establishment of United States Manu- 1259 facturing Facilities by the Japanese Defendants O. Plaintiffs’ Evidence Concerning “Defendants’ Systematic Price Dis- 1259 crimination in the U.S.” P. Plaintiffs’ Contentions Based Upon the “Undisputed Facts and 1260 Legal Propositions” Identified by Plaintiffs’ Counsel in the Course of Summary Judgment Argument on August 28,1980 Q. Evidence of the Participation of Individual Defendants in the Con- 1265 spiracy 1. Introduction 1265 2. The Matsushita Defendants 1266 3. The Toshiba Defendants 1271 4. The Hitachi Defendants 1274 5. The Sanyo Defendants 1275 6. The Sharp Defendants 1278 7. Melco & Melco Sales, Inc. (MSI) 1279 8. Sony 1281 9. MC and MIC 1284 10. Sears 1289 11. Motorola 1293 12. The Sales Subsidiaries 1296 R. Preliminary Determination of Sufficiency of Conspiracy Evidence 1298 under F.R.E. 104(a) S. Summary of Conclusions as to Plaintiffs’ Sherman § 1 and Wilson 1299 Tariff Act Case as to Television Receivers VIII. PLAINTIFF’S EVIDENCE WITH RESPECT TO NON-TELEVISION 1311 PRODUCTS A. Radios 1311 B. Tape and Stereo Products 1314 C. Components; the Alleged Matsushita-Philips Component Complex 1315 and International “Industrial Cooperation” System IX. PLAINTIFFS’ SHERMAN § 2 CLAIMS — LEGAL PRINCIPLES AND 1318 APPLICATION A. Introduction; the “Individual Monopolization” Claims 1318 B. Monopolization by Combination; Attempted Monopolization by 1319 Combination; Conspiracy to Monopolize C. The Question of Defendants’ Aggregate U.S. Market Share of 1321 Television Receivers X. ZENITH’S ROBINSON-PATMAN CASE — LEGAL PRINCIPLES 1323 AND APPLICATION A. Introduction 1323 B; Zenith’s Standing to Assert Claims Under the Robinson-Patman Act 1325 C. Zenith’s Failure to Show Substantial Incipient Injury to Competition 1327 D. Conclusion 1328 XI. ZENITH’S CLAYTON § 7 CASE — LEGAL PRINCIPLES AND AP- 1329 PLICATION XII. CONCLUSION 1331 OPINION AND ORDER EDWARD R. BECKER, District Judge. I. Preliminary Statement This opinion addresses defendants’ motions for summary judgment as to plaintiffs’ conspiracy claims under § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, as well as their claims under § 2 of the Sherman Act, 15 U.S.C. § 2, § 73 et seq. of the Wilson Tariff Act, 15 U.S.C. § 8 et seq., § 7 of the Clayton Act, 15 U.S.C. § 18, and the Robinson-Patman Act, 15 U.S.C. § 13(a). For reasons which will be set forth herein at length, we will grant defendants’ motions. As will be seen, the touchstone of this decision lies in the fact that our intensive examination of the enormous record in this case has revealed that, despite years of discovery, the plaintiffs have failed to uncover any significant probative evidence that the defendants entered into an agreement or acted in concert with respect to exports to the United States in any manner which could in any way have injured the plaintiffs. The mission of the summary judgment procedure is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Advisory Committee Note to 1963 Amendment of Fed.R.Civ.P. 56(e). In this case that mission has become a veritable odyssey, one upon which we embarked some twenty-three months ago, in April of 1979, when motions for summary judgment addressed to plaintiffs’ conspiracy claims were first heard. At that time consideration of the summary judgment motions was postponed because the record was as yet too amorphous to permit its meaningful consideration. That situation has now changed. Thorough scrutiny of plaintiffs’ proof has been made possible by the filing, with preclusionary effect, of plaintiffs’ voluminous Final Pretrial Statement (FPS), setting forth the facts they intend to prove at trial; by the holding of five weeks of evidentiary hearings which considered the admissibility of plaintiffs’ key evidence; and by an intensive .period of preparation for and a seven-day argument of the conspiracy summary judgment motions. The pretrial evidentiary or “in limine ” hearings were primarily designed to evaluate the admissibility of the principal evidence that plaintiffs advanced in opposition to the defendants’ motions for summary judgment respecting plaintiffs’ conspiracy claims. The hearings were necessary because a summary judgment motion must be decided upon evidence that would be admissible or usable at trial, and defendants had challenged the admissibility of much of plaintiffs’ proposed evidence. In addition, the hearings were designed to afford plaintiffs the opportunity to present sufficient evidence aliunde of the existence of a conspiracy and its membership to permit the admission into evidence of the hearsay statements of coconspirators under F.R.E. 801(dX2)(E). See Part VI.D.6, infra. The hearings spawned a trilogy of lengthy and extremely detailed opinions. The first, filed August 7, 1980, 505 F.Supp. 1125, addressed the admissibility of certain public records and reports under F.R.E. 803(8)(C); the second, filed September 29, 1980, 505 F.Supp. 1190, concerned the admissibility of materials relating to activities in Japan; and the third, filed December 10, 1980, 505 F.Supp. 1313, dealt with the admissibility of plaintiffs’ expert testimony. Because these opinions, which will be summarized in Part IV, infra, exclude the most critical evidence in plaintiffs’ case, they impact significantly upon the present summary judgment motion. Therefore, we consider the evidentiary trilogy an integral part of this opinion and hereby incorporate it by reference herein. We shall not herein discourse upon the complexity of this case. Our opinion on the jury trial issue, 478 F.Supp. 889 (E.D.Pa. 1979), and that of the Court of Appeals, 631 F.2d 1069 (3d Cir. 1980), as well as our opinion on subject matter jurisdiction, 494 F.Supp. 1161 (E.D.Pa.1980), which served to introduce the summary judgment motions, more than adequately protray the complexity of the issues and sketch the contours of that other facet of the case’s complexity— the paper mountain which it has generated. The evidentiary trilogy expands upon that sketch and this opinion, which concentrates upon the record, completes the picture in replete detail. We shall, however, take the time in this Preliminary Statement to describe again, albeit briefly, the parties and the issues. The plaintiffs in this action are Zenith Radio Corporation (“Zenith”) and National Union Electric Corporation (“NUE”). NUE, the corporate successor to Emerson Radio Co., one of the pioneer manufacturers in the radio and television industry, ceased all production of television receivers in February of 1970. That December it filed the first of these suits, alleging that the Japanese defendants and others had conspired to take over the American consumer electronic products (CEP) industry and thereby to drive NUE out of business. In 1974 Zenith filed an action making similar allegations. The NUE action was then transferred to this district for coordinated or consolidated pretrial proceedings with the Zenith action; the transfer was later made unconditional and the actions were consolidated for trial. The ten principal defendants are seven Japanese manufacturers of consumer electronic products (Matsushita Electric Industrial Co., Ltd. (“MEI”); Toshiba Corporation; Hitachi, Ltd.; Sharp Corporation; San-yo Electronic Co., Ltd.; Sony Corporation; and Mitsubishi Electric Corporation (“MEL-CO”)); a Japanese trading company (Mitsubishi Corporation) (“MC”); and two American companies (Sears, Roebuck & Co. and Motorola, Inc.). Fourteen other defendants are subsidiaries of the principal Japanese defendants. Of the twenty-four defendants, fifteen are defendants in both suits, seven in the Zenith action only, and two in the NUE action only. In addition to the twenty-four named defendants the plaintiffs have identified scores of alleged coconspirators whose business operations traverse the globe, ranging from small Japanese companies to such world industrial giants as N.V. Philips Gloeilampenfabrieken and General Electric. The majority of the alleged coconspirators are other Japanese manufacturers and American importers. The particular offenses charged in the complaints span the range of the antitrust laws. The overall conspiracy is alleged to violate §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. Plaintiffs also allege actual and attempted monopolization and conspiracy to monopolize under § 2 of the Sherman Act. Additionally, they allege that the defendants have violated § 801 of the Revenue Act of 1916, better known as the 1916 Antidumping Act, 15 U.S.C. § 72, by “commonly and systematically,” with predatory intent, selling their products in this country for substantially less than their actual market value or wholesale price in Japan. The defendants are also charged with violating the Robinson-Patman Act, 15 U.S.C. § 13(a), by discriminating in price among American purchasers. Finally, Zenith charges that Sears, Motorola, and the Matsushita and Sanyo defendants, along with their coconspirators, violated § 7 of the Clayton Act, 15 U.S.C. § 18, in connection with the Japanese companies’ acquisitions of interests in United States consumer electronic products manufacturers. The plaintiffs’ papers seek to portray a massive, continuing unitary worldwide conspiracy said to have lasted over a period of more than twenty years, the purpose of which is said to be the destruction of the American consumer electronic products industry. Although plaintiffs have embellished this theme with numerous variations, to be described in Part II of this opinion, in general this objective is alleged to have been accomplished by means of a two-pronged “unitary” conspiracy: a (successful) conspiracy to charge artificially high prices to consumers in Japan which funded or “war-chested” a (successful) conspiracy to sell in the U.S. at artificially low prices. The summary judgment motion which we address herein is but one of many which have been interposed. We have already heard argument on a number of motions addressed to other discrete issues, and have disposed of most of them. We have (1) denied a motion seeking summary judgment for lack of subject matter jurisdiction, see Opinion (Introduction to Summary Judgment Motions; Subject Matter Jurisdiction), Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F.Supp. 1161 (E.D.Pa.1980); (2) granted in major part defendants’ motion for summary judgment on those claims arising under § 801 of the Revenue Act of 1916, better known as the 1916 Antidumping Act, 15 U.S.C. § 72, see Opinion and Order (1916 Antidumping Act), Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F.Supp. 1190 (E.D.Pa. 1980), appeal pending, No. 80-2080 (3d Cir.); (3) denied a motion for summary judgment brought by certain defendants against Zenith on the ground that Zenith was not directly injured and was therefore barred from recovery under the doctrine of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), see Opinion and Order (Indirect Injury — Illinois Brick), Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F.Supp. 1246 (E.D.Pa.1980); (4) denied a motion asserting that NUE lacked standing to sue under the doctrine of Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U.S. 703, 95 S.Ct. 2578, 41 L.Ed.2d 418 (1974), see Opinion and Order (Antitrust Standing— Bangor Punta), National Union Electric Corp. v. Matsushita Electric Industrial Co., 498 F.Supp. 991 (E.D.Pa.1980); (5) denied a motion by defendant Sears, Roebuck & Co. for summary judgment based on statute of limitation grounds, see Pretrial Order (PTO) 263, Zenith Radio Corp. v. Matsushita Electric Industrial Co., Ltd., M.D.L. No. 189 (May 23, 1980); and (6) denied a motion by Sharp Electronics Corp. alleging that Zenith’s claims under the 1916 Antidumping Act are barred by the Treaty of Friendship, Commerce and Navigation between the United States and Japan, 4 U.S.T. 2063, T.I.A.S. No. 2863 (1953); see Memorandum and Order, (1953 Treaty of Friendship Commerce and Navigation with Japan) Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F.Supp. 1263 (E.D.Pa.1980). A summary judgment motion asserting insufficiency of the evidence of monopolization and attempted monopolization against individual defendants under § 2 of the Sherman Act (the so-called “individual monopolization claims”) has in major part dissolved. See pages 1318-1319, infra. A motion by Sony Corporation advancing its allegedly unique position as a high price, rather than a low price, seller of television sets was deferred following argument, and will be considered with the other conspiracy motions herein. We have heard argument on a motion asserting insufficiency of the evidence of price discrimination under the Robinson-Patman Act and on motions addressed to the claims under § 7 of the Clayton Act. We will decide these summary judgment issues in this opinion. The summary judgment motions which we have just described were relatively self-contained. The present motion, on the other hand, implicates an enormous record which may be the largest summary judgment record ever developed. The anatomy of that record will be described in Part III of this opinion. That description will be followed (in Part IV) by a summary of the rulings contained in the evidentiary opinion trilogy. We shall then turn to a discussion of the applicable law, commencing in Part V with the legal standards governing the grant or denial of summary judgment, focusing on the complex case. The major portion of the legal discussion is found in Part VI, in which we engage in a discussion of the legal principles affecting plaintiffs’ Sherman § 1 and Wilson Tariff Act conspiracy case. We will begin with a discussion of the law relating to plaintiffs’ principal Sherman § 1 allegations, taking up: (1) agreements affecting prices; (2) market allocation; (3) membership in trade associations; (4) exchange of information concerning prices, production and inventory figures, and joint forecasting; (5) product standardization and technical research exchange; (6) secret rebates; and (7) joint activities in promoting public and governmental relations, and joint legal action in response to common problems. This section will be followed by a discussion of statutory standing under sections 4 and 16 of the Clayton Act, and then by a description of the Wilson Tariff Act, which we conclude essentially tracks the Sherman Act in the international trade context. Another focal point of the legal discussion will be the law of conspiracy in the antitrust context, which will be our next order of business. Our primary emphasis will be upon the legal requisites of circumstantial proof of conspiracy, both in conspiracy cases in general and in antitrust conspiracy cases in particular. We will focus particularly upon the circumstances under which conspiracy can be inferred from parallel business behavior. We shall also consider other aspects of the law of conspiracy with special attention to plaintiffs’ admonition against “fragmentation” of their “unitary” conspiracy, their invocation of the “slight evidence” rule, the viability of the doctrine of vicarious liability for the overt acts of coconspirators under the case of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and the requisites for admissibility of coconspirator declarations under F.R.E. 104(a) and 801(d)(2)(E). Having concluded our discussion of the law applicable to plaintiffs’ Sherman § 1 claims, we will turn, in Part VII, to a review of the evidence offered in support of plaintiffs’ Sherman Act § 1 (and Wilson Tariff Act) case as to television receivers. This is by far the longest segment of the opinion, for the evidence as to television receivers constitutes the overwhelming bulk of plaintiffs’ case. That evidence will be described in detail and measured against the applicable law, which we will already have described. During the course of each phase of the discussion, conclusions as to the legal sufficiency of the evidence will be drawn. The evidentiary review will lead us through all of plaintiffs’ significant admissible evidence. In the course of this extensive evidentiary review we shall be concerned not just with plaintiffs’ core allegations, but also with their discrete evidence against each of the twenty-four defendants, and we shall make a preliminary determination as to whether there is sufficient evidence of conspiracy to permit the introduction of coconspirator declarations. We will end this evidentiary review with a segment (Part VII.S) summarizing our conclusions as to plaintiffs’ Sherman Act § 1 and Wilson Tariff Act case as to television receivers. Although we have some misgivings about a summary of such a detailed opinion, see p. 1299 infra, this section should be a useful reference for anyone who seeks a relatively concise summary of the major grounds of the grant of summary judgment. In Part VIII we shall summarize plaintiffs’ evidence with respect to each of the non-television products (radio, tape, audio, and stereo equipment, and components) about which allegations have been made and shall comment upon the sufficiency of plaintiffs’ Sherman Act § 1 and Wilson Tariff Act case in these areas. Having concluded our treatment of plaintiffs’ Sherman Act § 1 (and, a fortiori, Wilson Tariff Act) claims, we shall take up, in Part IX, the applicable case law under § 2 of the Sherman Act and shall apply it to the record so as to assess plaintiffs’ conspiracy to monopolize and actual and attempted monopolization claims. In similar fashion, we shall consider the summary judgment motions directed to plaintiffs’ RobinsonPatman Act claims (Part X) and Clayton Act § 7 claims (Part XI). We shall conclude the opinion in Part XII with some final observations about plaintiffs’ case and about the appropriate forum for the relief they seek. Having commented preliminarily upon both the size of the record and the breadth of our evidentiary review, a word is in order about our methodology. We have spent months and months in the tedious process of reading in chambers the significant non-background portions of plaintiffs’ FPS, reviewing the sources cited for the various allegations contained therein, usually documents contained in the document depository, and studying the voluminous memoranda addressing the evidence and arguing about its significance, vel non. Because of the plethora of FPS allegations and documents involved, it will not be possible to comment herein on more than a fraction of the materials we have reviewed — otherwise this enormously long opinion would have to be much longer. As a result, our conclusions on various points will often take the form of statements that we have reviewed various allegations and documents and find nothing therein which creates a genuine issue of material fact to support plaintiffs’ allegations. We feel some discomfiture about the number of subparts and the length of this opinion. However, given the plaintiffs’ invocation of their entire 17,000-page FPS, see Part III, infra, and the hundreds upon hundreds of issues raised in the summary judgment briefs, it is difficult to give the motions adequate treatment in a lesser space. Moreover, even if a brief (or briefer) opinion would suffice for purposes of disposition, in view of the certainty of appeal and the enormous burden thus thrust upon the Court of Appeals, we believe it important that we give that court a comprehensive picture of the entire record and of the legal premises which undergird our determination that there is no genuine issue of material fact. We turn first to a description of the anatomy of the plaintiffs’ conspiracy claims. II. The Anatomy of Plaintiffs’ Conspiracy Claims One would expect, after ten years of litigation, that there would be no difficulty in describing plaintiffs’ conspiracy claims. Regrettably that is not true in this case, for plaintiffs’ theory of defendants’ alleged conspiracy has shifted on numerous occasions during the recent course of this litigation. Indeed, as we shall explain, the most recent shift occurred after the August 1980 summary judgment arguments. Plaintiffs deny that they have altered their theory, and submit that there is a core theory which they have pressed throughout, although they would at least have to admit to having played variations on the theme. We will now attempt to state their core theory and will then explain its meanderings along the way. Since the charter of plaintiffs’ case is their FPS, we look there for a statement of their theory. We find it stated as follows: In its most basic form, the combination and conspiracy consisted, in part, of a concerted scheme to raise, fix and maintain price lines for consumer electronic products sold by defendants and their co-conspirators in Japan. At the same time, defendants and their co-conspirators conspired and combined to establish and coordinate artificially-low price levels for consumer electronic products exported by them to the United States. The defendants and co-conspirators implemented their combination and conspiracy by exporting to the United States and selling therein their consumer electronic products at these concerted depressed price levels. This concerted scheme was systematically applied to each line and category of consumer electronic products manufactured by plaintiffs. Defendants and their co-conspirators developed and implemented the combination and conspiracy by meetings and communications among their executives at various levels of management, and through the means of trade association activities participated in and directed by defendants and their co-conspirators. Defendants and their co-conspirators agreed upon prices, rebates, discounts and allowances and other terms and conditions of sale of consumer electronic products, and upon the allocation of customers among themselves. Defendants and their co-conspirators further combined and conspired to restrict, expand and allocate among themselves the absolute volume of production and sale of consumer electronic products and the volume of production and sale of particular products within the lines and categories of consumer electronic products manufactured by them. The defendants and their co-conspirators then did those things which they conspired and combined to do. FPS at 3453. Plaintiffs’ style their Japanese high price-U.S. low price conspiracy as a “unitary” conspiracy, with home market and export facets, the aim of which was to effect a complete takeover of the U.S. CEP market, thereby destroying the U.S. CEP industry. The home market portion of the conspiracy is said to have been conceived at and implemented by a host of “conspiratorial” meetings among officials of the Japanese defendants and of other Japanese CEP manufacturers. It is said to have been abetted by the closed Japanese market, a function of a skein of government regulations and economic traditions, which effectively shut off foreign competition in the home market and enabled the gouging of the Japanese consumer to subsidize the export aspect of the conspiracy. The nexus between the home market and export aspects of the “unitary” conspiracy is supplied by the notion which we refer to as “war-chesting.” In brief, the plaintiffs allege that the high price home market conspiracy supplied the funds with which to finance or “war-chest” the predatory export raid on the U.S. market. The export portion of the conspiracy is said to be composed of two essential elements. The first is the Ministry of International Trade and Industry (MITI)-related export control arrangements or Manufacturers’ Agreements, referred to by plaintiffs as “cartel agreements,” which were signed by the Japanese manufacturing defendants and a number of other firms and which, inter alia, established minimum or “check” prices on the shipment of various CEP’s to the U.S. As an adjunct to these agreements were certain rules of the Japanese Machinery Exporters Association (JMEA), most notably the “Five Company Rule” pursuant to which the Japanese exporter was purportedly limited to five U.S. customers at a time and was required to register his customers with the Association. Plaintiffs contend that these agreements have the intention and effect of affecting prices in the U.S., thus constituting a per se violation of the Sherman Act, and that the Five Company Rule constitutes a customer allocation or “split of product” in further violation thereof. The second of the twin foci of plaintiffs’ export conspiracy case is, mirabile dictu, an agreement by the Japanese defendant exporters and by American importers (including defendants and other alleged coconspirators) to disregard the check prices and to sell their products in the U.S. at lower prices through the vehicle of concealed rebates and discounts. The check price is thus referred to as a “reference” or “benchmark” price, although the plaintiffs never explain how one gets from the reference price to the actual selling price except by asserting that the defendants agreed to sell at “whatever prices were necessary to make the sale.” The concealment was intended both to hide from MITI the fact that the defendants were selling in the U.S. below the check prices and to deceive U.S. Customs as to the actual price. While the higher sales prices reported to Customs resulted in higher customs duty, in plaintiffs’ submission defendants thereby avoided imposition of still higher dumping duties. Under plaintiffs’ theory the rebate scheme was collusive, in that defendants agreed upon a program of concerted depressed pricing for the purpose of destroying the U.S. CEP industry. The scheme is said to have been aimed at the U.S. private label market and only at American manufacturers. The Japanese defendants are said to have acted as a unit and not to have competed among themselves. Plaintiffs assert that defendants “dumped” their goods in the U.S., selling at predatory levels and at lower levels than for comparable goods in Japan. They also make allegations of sales below cost. Plaintiffs assert that defendants’ practices resulted in the sharp lowering of “pricing points” in the U.S., rendering NUE unable to compete in its lower-price market niche and resulting ultimately in the elimination of numerous U.S. CEP manufacturers and the reduction of profitability levels of the others, including Zenith. Plaintiffs assert that defendants further implemented their scheme and consolidated their gains by the acquisition of a number of U.S. manufacturers and the establishment of manufacturing facilities in the U.S. Although plaintiffs make some attempt to assert direct evidence of this “unitary conspiracy,” for reasons which have already surfaced in our evidentiary trilogy and will further appear in this opinion, that effort has totally failed. It is plain (and essentially conceded by plaintiffs) that their case is a circumstantial one, built upon the mountain of documents referenced in their FPS. Plaintiffs seek to draw inferences of conspiracy from a plethora of sources, including those set forth in their most comprehensive and presumably definitive listing of the evidence of the alleged conspiracy, which appears at pp. 3474-77 of their FPS and includes the following: 1. the export control agreements entered into by the Japanese manufacturers of consumer electronic products; 2. the rules of the Japan Machinery Exporters’ Association (JMEA), which implemented the export control agreements and included provisions allocating the U.S. market by restricting each manufacturer to five customers and requiring the registration of trademarks; 3. a number of speeches by high executives of Japanese defendants proclaiming the necessity of stabilizing the Japanese CEP market by cooperative action and evincing a desire to achieve preeminence in export trade with the United States and other countries; 4. the text of the “rationales” of various export control agreements explaining the necessity of stabilizing the export trade; 5. passages in a number of diaries of Japanese officials, in internal company memoranda seized by the Japanese Fair Trade Commission (JFTC), and in some other documents produced in discovery, all of which are said to be probative of agreements to fix prices or to allocate the market, hence of conspiratorial activities of a number of groups and associations to which executives of the Japanese manufacturing defendants belonged. (The allegedly offending groups include the Electronic Industries Association of Japan (EIAJ) and its committees and subdivisions; the JMEA and its committees and subdivisions; the Market Stabilization Council; the Four Associations Conference; the Okura Group; the Palace Group; the Palace Preparatory Group; the Twentieth Day Group; the Tenth Day Group; the MD Group; the TS Group; and the Television Export Council); 6. the mere fact of membership of various defendants in these groups, many of which concededly operated sub rosa; 7. the inference to be drawn from the “sharing” by groups and associations of “every vital piece of information in every phase of the business among the Japanese manufacturers of consumer electronic products”; 8. the activities of the defendants in the Japan Light Machinery Information Center (JLMIC) in New York City; 9. the evidence before the JFTC in the “Six Company Case,” Case No. 6, 1966, including documentary evidence, affidavits, testimony, admissions by respondents through their counsel, and findings of fact by trial examiners; 10. various schemes by the defendants and their coconspirators fraudulently to conceal their conduct, including secret rebating; false submissions to United States Customs Service; plans to destroy documents, to keep from taking minutes, and to change the names of the conspiratorial groups in Japan; plans to thwart the investigation of the United States Tariff Commission by importers and private label purchasers; and the fraudulent reporting of statistics to the government of Japan; 11. the findings of the JFTC in 1957 against the Market Stabilization Council and its participants; 12. the findings of the United States government, including the dumping findings by the Treasury Department and the finding by the International Trade Commission of injury sustained by U.S. manufacturers of television receivers; 13. the inference to be drawn from the “parallel, interdependent rebating schemes” in which the defendants and their coconspirators participated; 14. the inferences to be drawn from the materials which are said to evidence the knowledge of each defendant of the operation, including rebating practices, of the export systems of each other defendant, and their resulting knowing participation in the rebate scheme; 15. the inferences to be drawn from what is said to be the similar conduct of defendants in selling consumer electronic products in the United States at prices substantially lower than those at which the same merchandise is sold in Japan, and at below cost; 16. the inference to be drawn from the supposed fact that the Japanese defendants’ United States subsidiaries similarly and consistently operated at a loss, as reported in their tax returns and financial statements; 17. the sealing off of the Japanese home market from outside competition; 18. the “pattern” of take-overs and acquisitions of U.S. CEP manufacturers by Japanese defendants, including Matsushita’s acquisition of Motorola just before Motorola was to begin selling its console color television receivers in Japan; 19. alleged discriminatory pricing by the Japanese manufacturers of consumer electronic products to customers in the United States; 20. the opinion of plaintiffs’ experts that defendants constituted a cartel and engaged in both the home market and export facets of the alleged conspiracy; and 21. the notions that it “belies reality” to believe that the defendants, with so much access to each other at trade association and other meetings, did not conspire and that otherwise an American company like Emerson (NUE’s predecessor), with such a good name, would not have been driven out of business. We will, of course review the evidentiary basis for all of these contentions, as well as others made in the FPS and in the briefs, infra. We have attached as Appendix C to this opinion the table of contents to the FPS, which lists all evidentiary areas covered therein. Having set forth the many facets of plaintiffs’ conspiracy theory, we must turn to our analysis of their core allegations, and the metamorphosis thereof, for those are critical matters. Shortly after the assignment of the case to our docket, in search of issue definition, we required counsel (PTO 88) to file detailed statements of their respective positions in the case in the form of preliminary pretrial memoranda (PPTM). In plaintiffs’ PPTM, filed in two stages and consuming some 410 pages, and in their contemporaneous comments at pretrial conferences, plaintiffs characterized this as a “simple price-fixing case,” with the MITIrelated export control arrangements as its “heart,” “foundation,” and “starting point.” The outer layers of plaintiffs’ theory consisted of the allegations referenced above that, through conspiratorial meetings supposedly documented in the diaries and other documents seized by the JFTC (and certain other documents produced in discovery), the Japanese manufacturing defendants had acted in concert to fix prices at a high level in Japan in order to finance or “war chest” the predatory export raid on the U.S. market. Both the PPTM and Plaintiffs’ Brief in Reply to the Motion for Summary Judgment of Melco and Melco Sales, Inc., filed October 16, 1978, are dominated by this theory. There is but scant mention of what later came to dominate plaintiffs’ theory of the case — the practice by Japanese manufacturers of granting rebates to American purchasers — although certain rebate transactions are mentioned. By the time of the April 1979 summary judgment arguments, plaintiffs’ theory had changed. Although the conspiratorial activities of the groups and associations were still stressed, the “rebate scheme” had emerged as a co-equal factor in the conspiracy. But when pressed as to the price or price level or price formula at which the predatory low price conspiracy operated, plaintiffs would say only that defendants sold at “whatever price was necessary to get the sale.” By the time final summary judgment argument arrived in August 1980, emphasis on the rebates had increased while mention of the direct conspiratorial evidence and “war chesting” had decreased markedly. As plaintiffs’ lead counsel, Edwin P. Rome, put it: I suggest that the cartel agreements and the rebate system as a unitary entity constituted a mechanism, the mechanism which enabled the defendants to pursue a course of conduct for depressing prices in the United States, as the result of which, aided by their five-company rule, they were permitted and enabled to concentrate each particular defendant’s competitive thrust against a particular mass merchandise customer in the U.S. and thereby deny the capability of an American manufacturer to do business with that customer. PTO 291 at 128. Under this theory, the export control arrangements and conspiratorial group meetings play an entirely different role from that alleged in the PPTM and brief in reply to Melco’s motion. Now, the export control arrangements, instead of being the “heart” of the conspiracy, merely provide a forum through which defendants agreed to a “system” of secret rebates designed to nullify those very same export control arrangements so as to take over the market for sales of television receivers to private label and original equipment manufacturers (OEM) in the United States. As Mr. Rome explained, the export control arrangements and the existence of secret rebates are now the sole ingredients of the conspiracy claim: The Court: But be that as it may, I still don’t see in terms of conspiracy proof what your theory is except by virtue of the conclusion that you draw as to the inextricable intertwining of the cartel agreements and the rebate system. Is that what you said? Did you have another ingredient in that? Mr. Rome: That is it. The Court: The cartel agreements and the rebates. PTO 291 at 113. Under this formulation, the check price becomes a “reference price” or benchmark price. Defendants are said to have sold above, at, and below the check price, but we are never told of the relationship between the check price and the actual price. Perhaps the best description of this theory, which we treat as plaintiffs’ principal theory notwithstanding our comments infra, is that plaintiffs charge a conspiracy to sell in the U.S. at depressed or predatory prices. The role of the conspiratorial meetings in Japan, although not abandoned as a basis for plaintiffs’ claim, is hardly mentioned. Plaintiffs do, however, stress certain meetings in the U.S. of counsel for U.S. customers designed to formulate a common strategy to combat U.S. Treasury Department proceedings under the 1921 Antidumping Act. They also stress the alleged knowledge of each defendant and defendants’ U.S.-importer customers about the rebate scheme and their alleged knowing participation in it. Little is said at this stage about “war-chesting,” apparently because plaintiffs finally recognized that there is no evidence of it in the record. We were also told by Mr. Rome at the final summary judgment argument that the conspiracy was “protean” (PTO 291 at 115). Perhaps nothing better explains the elusive nature of plaintiffs’ conspiracy claims than Mr. Rome’s use of the word “protean” to describe them. According to Webster, protean means “capable of change; exceedingly variable . . . readily assuming different shapes or forms . .. capable of acting many different roles; .. . possessed of infinite variety ...” Although the formulation itself undermines the integrity of plaintiffs’ claims, its usage was fitting. Finally, in a post-argument submission in the form of an affidavit by their leading expert, Dr. Horace DePodwin, see Expert Testimony Opinion 505 F.Supp. 1313 at 1334 n.24, plaintiffs seem to revert to their original theory, for there is a clear emphasis upon the check price; the lower (net-net) price after deduction of rebates is said to be involved only in “selective” cases. Whether this reversion is ascribable, on the one hand, to plaintiffs’ discovery of a large number of sales at check price (see DePodwin affidavit at 4.9-. 10) and the fact that the check price was itself lower than NUE’s price (see DePodwin affidavit at 4.11-.12), or, on the other, because the first two opinions in our evidentiary trilogy held inadmissible the critical documents upon which much of plaintiffs’ theory of conspiracy as stated in their first two summary judgment briefs rests, we cannot say. We do not dwell upon this theory in the opinion because it is plainly an afterthought, because it is outside the mainstream of plaintiffs’ case, and because, in any event there is no evidence that the check price was itself a low price. See discussion infra. Although' in the latter stages of the proceedings the emphasis on the export control arrangements was reduced, those agreements remain important, for they form the cornerstone of plaintiffs’ evidence of defendants’ opportunity and intention to conspire. With the agreements as background, in plaintiffs’ submission, all defendants’ activities take on a conspiratorial hue. The final facet of plaintiffs’ conspiracy theory worth mentioning is a function of their approach to the burden of proof on a summary judgment motion. Plaintiffs have asserted time and again throughout the latter course of the proceedings that evidence of the existence of the alleged conspiracy is to be found in the failure of defendants to file affidavits to explain what went on at numerous meetings which defendants admit occurred and at which plaintiffs allege that conspiratorial activity took place. Indeed, in their final briefs plaintiffs set forth a litany of “critical issues” about which the defendants have been “silent,” implying that defendants should have been required to produce information on these subjects even though the plaintiffs deliberately, throughout eight years of discovery, failed to take a single deposition of any individual who attended the allegedly conspiratorial meetings. See discussion at 1200-1202 infra regarding plaintiffs’ litigation strategy. For reasons set forth infra, this approach is unavailing. Because plaintiffs are entitled to the benefit of any theory that will get them past a summary judgment motion, we will consider all the variations on their theme. Having described the nature and evolution of plaintiffs’ conspiracy claims — at least as best we can — we turn to a description of the summary judgment record. This task will also require us to say something about the role of the more important case management orders we have entered. III. The FPS, Final Stage Case Management, and the Summary Judgment Record We have observed that this case is before us on what may be the most ample record for summary judgment purposes ever before a court. The keystone of this record is plaintiffs’ roughly 11,500-page FPS, with its roughly 6000-page appendix, which cross-references approximately 250,000 pages of documents. In some respects, the length of the FPS is misleading. First, for reasons of convenience in preparation, plaintiffs limited many pages to a single point covering but 20 to 35 percent of the page. Second, extensive portions of the FPS are devoted to enormously detailed — and generally uncontested — background material which supplies historical, financial, and personnel-related detail about the various defendants. Nonetheless, in terms of sheer size and effort of preparation, the FPS is a formidable document. Notwithstanding its domination by damning conclusory statements, which, as we shall see, are generally not substantiated by the referenced supporting documents, the FPS contains a valuable compendium of plaintiffs’ allegations and of the critical documents upon which plaintiffs rely, many of them virtually rescribed in the FPS. It also contains important and useful appendices, such as model by model comparisons of T.V. receivers and certain other CEPs, originally ordered in PTO 145. The FPS, which has won the approbation of both parties as a necessary management tool (for this case), was required by PTO 154, our master case management order, which is reprinted at 478 F.Supp. 889, 946 (E.D.Pa.1979), and which was fashioned in collaboration with counsel. Paragraph III.C. of PTO 154 orders the parties, both plaintiffs and defendants, to set forth: each fact that the party intends to prove at trial either affirmatively or by way of defense, together with a list of: (1) the witnesses (including expert witnesses) whose testimony will be advanced to prove that fact; (2) the documents ... which will be offered to prove that fact; and (3) line by line references to any portions of depositions and to answers to interrogatories and requests to admit which will be offered to prove that fact, (footnote omitted). Pretrial Order 154 continues: By this formulation we do not intend that the parties must provide a script for trial. We do, however, intend that the parties set forth in narrative form not just the ultimate facts, but all the facts they will prove, including all subsidiary or supporting facts. In so doing they will make, at a minimum, the kind of submission they would make if they were writing detailed requests for findings of fact setting forth what the evidence has established in a non jury case.... In view of the primacy of the conspiracy claims in plaintiffs’ case and defendants’ counterclaims, the FPS shall itemize all overt acts to be proved at trial. In particular, the FPS shall enumerate with specificity the facts (i. e. the evidence aliunde) upon which they rely to prove that each defendant ... knowingly joined in the alleged conspiracy and all facts, separately as to each defendant, upon which they rely as to each defendant’s participation in the alleged conspiracy. Where any facts will be offered against fewer than all parties, the FPS shall identify the parties against which the facts are or are not offered. The FPS was required in part as a surrogate for inadequate responses to discovery by the plaintiffs, who had theretofore failed, despite several voluminous waves of interrogatories, including so-called “contention interrogatories” which we authorized for that purpose, to set forth adequately the specifics of their claims. Plaintiffs had never made specific allegations as to how and when this conspiracy was conceived, how it operated, and when and how each defendant became a participant, and had also failed to specify what evidence they had against each defendant. The FPS was designed to fill in these gaps and, under the preclusionary provision of PTO 154, no fact not set forth in the FPS could be adduced at trial except for good cause shown. Thus we now have something cognate to a trial record. No sooner had defendants’ counsel commenced their reading of the FPS than they began vigorously to complain that it failed to accomplish its purpose. We thereupon, at our next regularly scheduled pretrial conference, conducted an FPS “walk-through” — a detailed spot survey of the FPS. As we found at the walk-through and in our subsequent reading of the FPS, it contained for the most part conclusory statements keyed to references to large numbers of documents. Because plaintiffs’ case rests basically upon those documents, and because the conclusory statements in the FPS were not helpful, resort to the documents themselves became necessary. As a result we ordered, by PTO 219, the creation of a document depository to be located in our jury room into which the parties were to deposit all the documents which they referenced in their summary judgment papers or upon which they would rely at summary judgment argument or at trial. As many of the documents were Japanese language documents, we also ordered that an English translation be attached. The parties negotiated over the manner of creating the depository and the division of the cost. Because the documents referenced in the FPS were at immediate issue, the plaintiffs assumed the onus of placing the documents in the depository, with the parties dividing the cost. The document depository was “completed” in the Spring of 1980. We surround “completed” with quotation marks because the summary judgment argument and our study of the record in conjunction with the preparation of this opinion have demonstrated that many documents relied upon by plaintiffs are not in the depository and that countless documents have not been translated. The document depository with all its contents is, both for what it contains and for what it does not, an important part of the summary judgment record. Defendants’ also complained, with justification, that the plaintiffs, despite the requirements of PTO 154, had failed to identify in their FPS, discretely as to each defendant, the evidence aliunde which linked it to the conspiracy. We therefore ordered plaintiffs to submit a list of their evidence aliunde, i. e., of the key documents or other materials which constituted independent evidence of the existence of a conspiracy among the defendants. Regrettably, the results of that order were disappointing. Plaintiffs indeed filed an evidence aliunde list, but it consisted of some seven volumes piled over three feet high containing nothing but 250,000 or so numbers — the document numbers of virtually all the documents referenced in the FPS. Thus plaintiffs’ list of evidence aliunde, intended to inform each defendant with particularity of the evidence against it, did not “advance the ball.” Rather, it left the case where it had been for many years, with the plaintiffs invoking a boxcar full of documents as evidence against all defendants on the theory that they were coconspirators, but without any semblance of specificity. The situation was complicated by the fact that, at least from the beginning of our stewardship in the case, the defendants persistently asserted not only that plaintiffs’ documents were inconsequential, but also that the bulk of them were inadmissible in evidence. Melco had formally asserted these evidentiary objections in its Motion for Summary Judgment filed in March 1978. In sum, despite our fervent and carefully considered case management efforts, which commenced with the PPTM and were codified in PTO 154, neither the FPS nor the evidence aliunde list was helpful in giving plaintiffs’ case the kind of sharp focus necessary for dealing with a motion for summary judgment, because neither of these submissions contained the precise marshalling of the evidence which we had ordered. Rather, each was little more than a carefully organized compendium of virtually every colorably relevant document which had been produced during discovery and copied by the plaintiffs. Moreover, plaintiffs took the position (to which they apparently still adhere) that it is not their burden to detail the evidence in support of their claims, but rather that “the Court must consider the entire FPS in reaching a determination on the issue of conspiracy and in evaluating defendants’ Motion for Summary Judgment.” Although we are attempting to do just that, it is fundamental that the Court should not be required to do plaintiffs’ job of marshalling the evidence to demonstrate a genuine issue of material fact which would preclude summary judgment. Rule 56(e) requires that a party opposing a motion for summary judgment must, “by affidavits or as otherwise provided in this rule, ... set forth specific facts showing that there is a genuine issue for trial.” (emphasis added). It also ties summary judgment proceedings to admissible evidence, see note 26, supra. Mindful of those principles, we concluded early in 1980 that in order for us meaningfully to deal with the summary judgment motions, two devices would be especially helpful: (1) a pretrial evidentiary hearing; and (2) a summary judgment argument of sufficient length that plaintiffs would have an opportunity to call to the Court’s attention any document in the record which would create a genuine issue of material fact. We proceeded to implement both. As we have suggested, it was obvious to us by this time that only by examining the actual documents could we assess the viability of plaintiffs’ case. Such an examination would enable us to evaluate each document’s authenticity and admissibility as well as its efficacy in creating a genuine issue of material fact. The announced charter for the evidentiary hearings was thus to aid in determination of the summary judgment motions. However, prior to their commencement we clearly stated of record that they would also have a second purpose — to serve as in iimine hearings pursuant to F.R.E. 104(a) so that we could make a pretrial determination whether there was sufficient independent evidence (evidence aliunde) of a conspiracy among the various defendants to permit the introduction of “coconspirator” declarations under F.R.E. 801(d)(2)(E). See Part VI.D.6, infra. This was an important matter since it was clear to all, and tacitly acknowledged by plaintiffs’ counsel, that without the introduction of alleged coconspirators’ declarations, plaintiffs might not be able to make out a conspiracy case against most, if not all, of the defendants. Acknowledging that such a charter for hearings might entitle, and indeed require, plaintiffs to put on much of their case-in-chief, or at least the most important parts of it, we placed no time limitation upon the hearings. The pretrial evidentiary or “in limine” hearings have been fully described in our Public Records Opinion (PTO 283). Suffice it to say that plaintiffs marshalled their key documents, assigning each a DSS (Document Submission Sheet) number, and argued the admissibility of most of them to the Court. Defendants replied and extensive briefs were submitted by both sides. The hearings resulted in the three lengthy and extremely detailed opinions mentioned above, the results of which will be summarized in Part IV of this opinion. Since the DSS submissions are what plaintiffs have represented to be their most important documents, they are an important part of the summary judgment record. At the outset of the August 1980 argument on the motions for summary judgment, we informed the parties that our principal concern at that time was not with the legal aspects of the case, but rather with its factual basis. We invited counsel to take as much time as was necessary to go through the entire record and call our attention to any documents, testimony, or other evidence which bore on the existence of a genuine issue of material fact. The defendants accepted our invitation and took over four days to analyze a very large number of the important documents proffered by plaintiffs, arguing that they created no genuine issue of material fact. We found that presentation most helpful. The plaintiffs, on the other hand, declined our invitation and studiously avoided dealing with any specific documentary evidence during their oral argument. The summary judgment record before us then is a “mixed bag.” It includes the preclusive FPS with all its appendices, the documents referenced therein, and all the DSS’s. It also includes all the exhibits offered by plaintiffs in connection with the summary judgment proceedings in April 1979, and it includes the various affidavits submitted to us by both plaintiffs and defendants and the various appendices thereto, some of which are not contained in the document depository. We shall also consider the voluminous depositions submitted for our consideration, along with the even more voluminous answers of defendants to plaintiffs’ interrogatories, the most “visible” of which are those relating to membership in and attendance at meetings of various groups and associations. Additionally, the record includes those portions of plaintiffs’ expert reports which we held admissible in our Expert Testimony Opinion. This description includes a veritable mountain of documents and other materials. However, not all of them have been demonstrated or even asserted to be of any significance on the summary judgment motion. Many of them relate to plaintiffs’ damages and are not at issue at this stage; others are purely background material. Countless others, despite inclusion in the FPS, are plainly irrelevant, at least to our determination here. Even after elimination from consideration of those documents, there are many documents, cumulative, marginal, or otherwise, upon which plaintiffs do not seriously rely, notwithstanding their having been referenced in the FPS and placed in the depository. These documents we shall not seriously consider in our evidentiary review. We do not pretend to have read all 250,-000 documents which plaintiffs have referenced in their FPS. We do not think it incumbent upon us to read documents whose importance