Goss Intl. Corp. v. Tokyo Kikai , 434 F.3d 1081 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2604
___________
Goss International Corporation, *
formerly known as Goss Graphic *
Systems, Inc., a Delaware corporation, *
*
Plaintiff/Appellee, *
*
v. *
*
Man Roland Druckmaschinen *
Aktiengesellschaft, a German *
corporation; Man Roland, Inc., a * Appeal from the United States
Delaware corporation; Koenig & Bauer * District Court for the
Aktiengesellschaft, a German * Northern District of Iowa.
corporation; KBA North America, *
Inc., a Delaware corporation, *
*
Defendants, *
*
Tokyo Kikai Seisakusho, Ltd., a *
Japanese corporation; TKS (U.S.A.), *
Inc., a Delaware corporation, *
*
Defendants/Appellants, *
*
Mitsubishi Heavy Industries, Ltd., a *
Japanese corporation; MLP U.S.A., *
Inc., a Delaware corporation, *
*
Defendants, *
____________________________ *
*
The Government of Japan, *
*
Amicus on Behalf of Appellants. *
___________
Submitted: March 4, 2005
Filed: January 23, 2006
___________
Before RILEY, SMITH, and BENTON, Circuit Judges.
___________
RILEY, Circuit Judge.
This case involves a multi-national dispute involving sales of large printing
press equipment in the United States. Ultimately, this appeal asks whether a foreign
corporation merely competed with a domestic manufacturer in the printing press
industry in the United States, or whether the foreign corporation intended to injure or
destroy the printing press industry in the United States by dumping underpriced
products onto that market.
Goss International (Goss), a United States corporation, sued Tokyo Kikai
Seisakusho (TKSC), a Japanese corporation, its United States subsidiary, TKS
(U.S.A.) (collectively, TKS), and other foreign corporations and their United States
subsidiaries (collectively, the other defendants), alleging violations of the
Antidumping Act of 1916 (1916 Act), 15 U.S.C. § 72.1 Before trial, the other
1
Unlawful dumping occurs when a foreign person “commonly and
systematically . . . sell[s] . . . [imported] articles within the United States at a price
substantially less than the actual market value or wholesale price of such articles [less
incidental import expenses], at the time of exportation to the United States, in the
principal markets of the country of their production . . . [when such] acts be done with
the intent of destroying or injuring an industry in the United States.” 15 U.S.C. § 72.
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defendants moved to dismiss Goss’s complaint because it failed to allege predatory
intent as required under domestic antitrust law. Concluding the 1916 Act does not
require predatory intent, the district court2 denied the motions to dismiss. The other
defendants then settled with Goss and are no longer parties to this lawsuit. Goss’s
claims against TKS were tried to a jury, which found TKS unlawfully dumped
printing press equipment onto the United States market in violation of the 1916 Act.
The jury awarded $10,539,949 in damages to Goss. Because the 1916 Act provides
for treble damages, the district court3 tripled the award and entered judgment against
TKS for $31,619,847. The district court also awarded attorney fees to Goss in the
amount of $3,484,158. TKS filed a motion for new trial and a motion for judgment
as a matter of law. The district court denied both of TKS’s post-trial motions.
TKS appeals, contending (1) the district court misinterpreted the 1916 Act as
not requiring proof of predatory intent; (2) the district court misinstructed the jury on
the essential elements of Goss’s claims; (3) sufficient evidence does not support the
jury’s verdict on Goss’s claims involving the price erosion theory; (4) the district
court erroneously excluded evidence about Goss’s reputation in the newspaper
industry; (5) sufficient evidence does not support the jury’s verdict that TKS dumped
products onto the United States printing press market that were comparable to the
products TKS sold in Japan; and (6) the district court misapplied the statute of
In 2004, Congress repealed the 1916 Act. Miscellaneous Trade & Technical
Corrections Act of 2004, Pub. L. No. 108-429, § 2006(a), 118 Stat. 2434, 2597.
However, Congress specifically excluded any actions pending at the time of the
repeal. Id. § 2006(b). Because Goss’s claims against TKS were pending at the time
Congress repealed the 1916 Act, the repeal does not affect this appeal.
2
The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit
Court of Appeals.
3
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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limitations and erroneously allowed Goss to recover on a time-barred claim. We
affirm.
I. BACKGROUND
Because Goss secured a jury verdict, we provide the following background
based on the record viewed in a light most favorable to the jury’s verdict and by
giving all reasonable inferences to Goss. See Racicky v. Farmland Indus., Inc., 328
F.3d 389, 393 (8th Cir. 2003).
Goss manufactures and supplies large newspaper printing presses, newspaper
printing press additions, and other printing press systems for sale to large newspapers.
TKS manufactures large newspaper printing presses and newspaper printing press
additions in Japan, and then distributes its products around the world, including in the
United States. A typical large printing press system is over 100 feet long, stands four
or five stories tall, and weighs two million pounds. Once a large printing press is
installed, it oftentimes is referred to as an installed base. Because the installed base,
i.e, the actual printing press system, is so large and expensive, many customers prefer
to purchase printing press additions from the manufacturer of the original printing
press system. This is often referred to as the installed base advantage. Because of the
size and cost of these systems, newspapers often use their existing printing press
systems for decades, and only update the capability of the presses by purchasing
printing press additions. When a newspaper decides to buy a large printing press
system or a printing press addition, price is the primary factor; in head-to-head battles
between manufacturers dealing in comparable equipment, price can be the
determinative factor. However, non-price factors also can be important in choosing
a manufacturer. This case deals exclusively with printing press additions.
The United States market for large printing press equipment is rather small,
with only about ten sales taking place each year. Because the market is so compact,
lost orders–even one per year–can impact a substantial portion of a manufacturer’s
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business. Beginning in the 1970s, Goss became the dominant manufacturer of
newspaper printing press equipment in the United States. By the 1990s, Goss was the
only domestic manufacturer of large printing presses in the United States. Goss’s
dominance of the United States printing press industry continued into the late 1990s.
However, in 2000, Goss did not make a single sale of printing press equipment.
TKS enjoys a huge market in Japan for its printing press equipment. TKS
broke into the United States printing press market in the 1970s. By the late 1970s or
early 1980s, Goss noticed TKS was a major foreign competitor in the United States
market. By the 1990s, TKS had a significant installed base in the United States of
around sixty-two printing presses. In the 1980s, TKS landed major newspaper
customers in the United States. These customers included The Wall Street Journal,
The Washington Post, and the Newark Star-Ledger. TKS also established a critical
relationship with The Dallas Morning News, which TKS planned to use to showcase
its products to other United States newspapers. From 1985 to 2000, TKS’s market
share of the United States printing press industry fluctuated from highs of 22.4% in
1986 and 20.4% in 1998 to 0% in 2000.
From January 1991 to July 2000, TKS sold over $125,000,000 worth of
printing press additions to five United States newspapers. According to Goss’s expert
witness at trial, all of these sales were dumped, i.e., they were “common and
systematic,” and TKS sold these “product[s] in the U.S. at a price that was
substantially below the market value of the similar product in Japan.” When TKS, a
major competitor in the United States printing press market, lowered its prices,
customers expected Goss to lower its prices as well.
This appeal focuses on three separate sales of printing press additions to three
separate United States newspapers. Goss presented evidence showing it lost the sale
of printing press additions to The Dallas Morning News in 1996 because TKS won the
contract based on dumped prices. Goss also presented evidence that, although it
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successfully won the sales of printing press additions to the Orlando Sentinel and the
Newark Star-Ledger in 1997, it lowered its prices to compete with TKS’s dumped
prices. That is, Goss showed the contract costs of the additions with these two
newspapers, but also showed the jury “the price that Goss would have made–or would
have received but for TKS offering bids at its dumped prices.”
In 1994, TKS executed a contract with The Dallas Morning News for the sale
of three printing press additions for $8,505,348. The contract also provided an option
for The Dallas Morning News to buy two more additions at a later date for
$5,670,232. In a letter dated April 25, 1995, The Dallas Morning News exercised its
option to purchase the two additions. TKS later determined the option agreement
obligated it to supply The Dallas Morning News “the two additional units at a clearly
dumped price.” In response, TKS asked The Dallas Morning News to agree to an
option price of $7,429,774 for the additional units, with the understanding TKS would
rebate the increased amount to The Dallas Morning News. In a letter dated June 13,
1996, TKS wrote to The Dallas Morning News informing it of this agreement. In late
1996, TKS and The Dallas Morning News executed a contract for the sale of the two
additions, and TKS delivered those additions. TKS then rebated $2,200,000 to The
Dallas Morning News, with $1,000,000 being reimbursed by check and $1,200,000
being reimbursed in the form of free equipment. In a letter to TKS (U.S.A.) dated
August 12, 1996, and referencing the option contract with The Dallas Morning News
for the two additions, TKSC’s overseas sales manager wrote, “Today we received with
a big surprise a copy of the letter dated June 13, 1996. . . . there should not be such a
document (stating TKS/USA will issue a credit and or cash in the amount of
$2,200,000 to The Dallas Morning News before December 31st, 1996) approved by
3 parties (DMN, TKS/USA and TKS, Ltd).”
In discussing how to memorialize the agreement that TKS would reimburse The
Dallas Morning News $2,200,000 for the additional contract amount for the option
items so the original 1994 price would end up being the total price, TKS’s attorney
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wrote The Dallas Morning News, “I HOPE WE CAN DISPENSE WITH ANY
WRITTEN CONFIRMATION OF THIS ‘GENTLEMAN’S AGREEMENT’. A
HAND-SHAKE DEAL IS THE BEST.” A confidential fax dated August 1996
references the June 13, 1996, letter, asking if “a copy or duplicate original copy of the
letter” exists and, “[i]f so, we suggest that such a copy must be collected and
destroyed.” A subsequent confidential fax reiterates the command to “destroy all
copies of the said original letter that are located at TKS (USA).” TKSC’s overseas
sales manager sent The Dallas Morning News a copy of a fax describing the
$2,200,000 in rebates, and then instructed him, “This fax copy is only for your
information. I did not talk about this old story with TKS people. . . . Please destroy
this fax letter after you read it.” Finally, a document admitted at trial showed TKSC
advised TKS (U.S.A.) “all documents and Faxes relevant to [The Dallas Morning
News dumping] matter should be disposed of whenever possible, but it’s probably
inevitable that some copies remain.”
In 1997, Goss won a contract for the sale of printing press additions to the
Newark Star-Ledger for $16,995,000, but contended that represented “a loss position
of about 5 million dollars.” Goss’s national sales manager testified that, if Goss “had
not been dealing with dumped pricing, [it] could [have] derive[d] a price between 27
and 25 million dollars for this order.” Goss’s sales manager further testified, “If we
had not been dealing with dumped prices from [TKS], we should have been able to
turn that type of profit from this order. Instead of being a loss position of 5 million,
we should have made . . . 3 million dollars profit.”
In a letter dated January 21, 1997, from TKS (U.S.A.) to TKSC regarding the
competition for the sale of printing press additions to the Newark Star-Ledger, TKS
(U.S.A.) stated, “[W]e feel that [the Newark Star-Ledger] will feel that $9.4 million
plus installation will be too high a price and may reluctantly get proposals from Goss
and [another manufacturer for the printing press additions]. If so, we are in danger of
losing [the] order.” Thus, TKS (U.S.A.) offered the following strategy:
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We would provide a written proposal showing conversion parts price of
$1.0 million more–$5,200,648, and verbally tell customer that if
dumping problem was not involved, our [equipment] would be
$8,431,481. . . . Therefore, we would tell [the Newark Star-Ledger
representative] if he will permit us to add $1.0 million to
$8,431,481–making the Sales Agreement price $9,431,481, we would
reduce conversions price by $1.0 million to become $4,200,648.
(emphasis in original).
Also in 1997, Goss outbid TKS on the sale of printing press additions to the
Orlando Sentinel. Referring to the sale of those additions, Goss’s national sales
manager testified the contract price totaled $13,215,650. However, this witness stated
that, had it not been for TKS’s dumped prices impacting this order, Goss could have
sold these additions for $14,938,000.
Goss’s expert witness studied TKS’s pricing of its printing press additions
offered in the United States, and determined TKS offered these printing press
additions at dumped prices. This witness testified Goss’s four sales of printing press
additions while competing head-to-head against “TKS during [the 1990s] when TKS
was offering dumped prices” were made at lower prices “than they would have been
but for TKS offering those [dumped] prices.”
In a letter dated December 17, 1993, TKSC’s manager of its overseas sales
department wrote to TKS (U.S.A.) regarding a sale to The Dallas Morning News, and
stated,
If Goss wants to sling mud at TKS in such dirty strategy (special 25%
discount or one tower as gift to sell 3 towers) to destroy TKS, I believe
TKS must do something like an eye for an eye, a tooth for a tooth. Look
here, Goss, TKS will show them a thing or two–three–four . . . . . in
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Japan, Asia, U.S.A. & in any other territory until TKS wins completely
this survival game.”
(emphasis added).
In a videotaped deposition, a TKS (U.S.A.) senior manager of customer service stated
TKS considered Goss the enemy. In a letter from TKSC to TKS (U.S.A.) dated July
14, 1994, concerning another sale of printing press additions, TKSC stated, “[P]lease
do your best to get this order by all means. It must be very beautiful, if we can see
two (2) TKS [printing press additions on top of] Goss presses in East coast and in
West coast in U.S.A.” (emphasis added).
In a letter dated September 27, 1996, from TKSC to TKS (U.S.A.) addressing
a German manufacturer’s impact on Goss’s business, TKS stated,
Our good rival [i.e., the German manufacturer] is fighting bravely, we
must admit it. Well done!! I am very happy to hear from you that Goss
is in a vulnerable position at present . . . having no U.S. backlog in a
factory–having to issue $300M in bonds. They invited their own
misfortunes. It is no more than they deserved. Congratulations!!
TKSC’s assistant general manager of the sales division testified he was “happy” when
he heard the news in June 1996 that Goss was closing its main manufacturing plant
for a couple of weeks and laying off employees.
In March 2000, believing TKS and the other defendants had been unlawfully
dumping printing press additions onto the United States market in violation of the
1916 Act, Goss sued TKS and the other defendants in the Northern District of Iowa.
Focusing on the allegations against TKS, Goss alleged
[f]or years [TKS] ha[s] offered and sold Newspaper Presses and
Newspaper Press additions in the United States at prices substantially
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less than their actual market value in other countries, after adding freight,
tariffs, and other charges and expenses. [TKS has] undertaken this
conduct–called ‘dumping’–in a deliberate effort to destroy or injure the
United States Newspaper Press industry.
At trial, Goss maintained ten sales of printing press additions were affected by TKS’s
unlawful dumping. Specifically, Goss argued TKS won six sales based on unlawful
dumping, while Goss won four sales by eroding its profit margin to compete with
TKS’s unlawful dumping. This theory is referred to as the price erosion theory.
Because of statute of limitations issues, the jury was asked whether TKS violated the
1916 Act on six specific sales of printing press equipment–two sales won by TKS, and
four sales won by Goss.
After an eleven-day trial, the jury found TKS engaged in unlawful dumping.
To make this determination, the jury found Goss proved (1) TKS “commonly and
systematically imported or sold, or caused to be imported or sold, newspaper press
printing units within the United States at a price substantially less than the actual
market value or wholesale price, at the time of exportation to the United States, of
comparable printing units in Japan,” (2) “such acts were done with the intent of
injuring or destroying an industry in the United States,” and (3) “Goss was injured in
its business or property by reason of [TKS]’s conduct.” Although Goss claimed it lost
two sales of printing press additions because of TKS’s unlawful dumping, the jury
found for Goss only on The Dallas Morning News claim. On this claim, the jury
concluded Goss’s damages included lost profits in the amount of $840,720, and the
opportunity cost of capital relating to lost profits in the amount of $551,770. Goss
also claimed TKS’s unlawful dumping caused Goss to suffer price erosion damages
on four sales Goss actually won. The jury found for Goss only on its sales to the
Orlando Sentinel and to the Newark Star-Ledger. On the Orlando Sentinel claim, the
jury found Goss’s damages included lost profits in the amount of $1,060,420, and the
opportunity cost of capital relating to lost profits in the amount of $637,366. On the
Newark Star-Ledger claim, the jury found Goss’s damages included lost profits in the
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amount of $4,844,019, and the opportunity cost of capital relating to lost profits in the
amount of $2,605,654. Based on these findings, the jury’s total damages award to
Goss amounted to $10,539,949.
Because the 1916 Act provides for treble damages, 15 U.S.C. § 72, the district
court entered judgment in Goss’s favor and against TKS for $31,619,847. The district
court also awarded statutory attorney fees to Goss in the amount of $3,484,158. TKS
sought post-trial relief by filing a motion for a new trial and a motion for judgment as
a matter of law. In its motion for new trial, TKS contended (1) the jury verdict was
against the weight of the evidence; (2) the district court issued improper jury
instructions; and (3) the district court made erroneous evidentiary decisions. In its
motion for judgment as a matter of law, TKS argued (1) Goss failed to meet its burden
of proof; and (2) there was no evidentiary basis for the jury’s finding of injury. The
district court denied both motions. TKS appeals.
II. DISCUSSION
We review de novo the district court’s denial of TKS’s motion for judgment as
a matter of law. Racicky, 328 F.3d at 393. We ask whether the record contains
sufficient evidence to support the jury’s verdict in Goss’s favor. Id. When
considering this sufficiency of the evidence question, we examine the evidence in a
light most favorable to Goss and view all inferences in its favor. Id. We remain
vigilant when reviewing a jury’s verdict, knowing judgment as a matter of law in the
face of a jury’s verdict is appropriate only when the evidence points in one direction
and no reasonable inferences support Goss’s claims. Id.When reviewing a district court’s denial of a motion for a new trial, we afford
great deference to the district court and will not reverse without a showing that the
district court clearly abused its discretion. Children’s Broad. Corp. v. Walt Disney
Co., 357 F.3d 860, 867 (8th Cir. 2004). The standard is even more strenuous “[w]hen
the basis of the motion for a new trial is that the jury’s verdict is against the weight of
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the evidence,” as the denial of the motion under these circumstances “is virtually
unassailable on appeal.” Id.A. Anti-Dumping Act of 1916
Nearly ninety years ago, Congress passed the 1916 Act to outlaw dumping
practices intended to injure or destroy United States industry:
It shall be unlawful for any person importing or assisting in importing
any articles from any foreign country into the United States, commonly
and systematically to import, sell or cause to be imported or sold such
articles within the United States at a price substantially less than the
actual market value or wholesale price of such articles, at the time of
exportation to the United States, in the principal markets of the country
of their production, or of other foreign countries to which they are
commonly exported after adding to such market value or wholesale
price, freight, duty, and other charges and expenses necessarily incident
to the importation and sale thereof in the United States: Provided, That
such act or acts be done with the intent of destroying or injuring an
industry in the United States, or of preventing the establishment of an
industry in the United States, or of restraining or monopolizing any part
of trade and commerce in such articles in the United States.
Any person who violates or combines or conspires with any other person
to violate this section is guilty of a misdemeanor, and, on conviction
thereof, shall be punished by a fine not exceeding $5,000, or
imprisonment not exceeding one year, or both, in the discretion of the
court.
Any person injured in his business or property by reason of any violation
of, or combination or conspiracy to violate, this section, may sue therefor
in the district court of the United States for the district in which the
defendant resides or is found or has an agent, without respect to the
amount in controversy, and shall recover threefold the damages
sustained, and the cost of the suit, including a reasonable attorney’s fee.
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The foregoing provisions shall not be construed to deprive the proper
State courts of jurisdiction in actions for damages thereunder.
15 U.S.C. § 72 (emphasis added).
1. The 1916 Act and Any Intent Requirement
TKS urges us to interpret the 1916 Act to require predatory intent along the
lines the Supreme Court enunciated in Brooke Group Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209 (1993). In Brooke Group, 509 U.S. at 219-24, the Court
interpreted the price discrimination provision of the Clayton Act, as amended by the
Robinson-Patman Price Discrimination Act, as requiring predatory intent such that “a
plaintiff seeking to establish competitive injury resulting from a rival’s low prices
must prove that the prices complained of are below an appropriate measure of its
rival’s costs,” and “that the competitor had a reasonable prospect, or, under § 2 of the
Sherman Act, a dangerous probability, of recouping its investment in below-cost
prices.” However, TKS does not urge us to adopt “the entire Brooke Group predatory
pricing test, but only that the [1916] Act is governed by the general standard
articulated in Brooke Group that a defendant must act to ‘eliminate or retard
competition’ to gain control over prices.” See Brooke Group, 509 U.S. at 222(holding the essence of a price discrimination claim is that a “business rival has priced
its products in an unfair manner with an object to eliminate or retard competition and
thereby gain and exercise control over prices in the relevant market”). In a doomsday
prediction, TKS contends the district court’s interpretation of the 1916 Act, which
rejected an additional element of predatory intent, “improperly converted the [1916
Act] . . . into an appallingly anti-competitive law that domestic manufacturers can and
will use to punish and thereby stifle legitimate competition from foreign
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manufacturers.”4 Thus, we ask whether the plain language of the 1916 Act requires
a showing of predatory intent.5
4
Of course, TKS’s argument has little weight in light of Congress’s repeal of
the 1916 Act. To our knowledge, this litigation is the lone pending lawsuit under the
1916 Act in the Eighth Circuit.
5
The Government of Japan filed an amicus brief in this appeal, contending the
1916 Act violates the United States’s obligations under a 1994 World Trade
Organization (WTO) agreement concerning antidumping legislation. Specifically,
Japan argues the 1916 “Act violates the WTO agreement and every action allowed to
proceed under the [1916] Act exacerbates the United States’ breach of its obligations
under the agreement.” Japan notes the European Union already has been authorized
by the WTO to enact countermeasures against the United States based on the
application of the 1916 Act to a German corporation. Japan threatens,
If the verdict in this case is upheld, Japan may have no choice but to seek
authorization from the [WTO’s Dispute Settlement Body] to impose its
own countermeasures against the United States, which could include the
imposition of additional duties on U.S. imports into Japan. Thus, the
failure of the United States to comply with the WTO ruling and
recommendation could result in an ‘arms buildup of protectionist
measures’ that could threaten to disrupt trade and commerce between
Nations.
Japan argues our court should interpret the 1916 Act to minimize the impact on
the United States’s foreign relations and to be consistent with the United States’s
obligations to the WTO. Specifically, Japan urges this court to interpret strictly the
1916 Act’s intent element to require proof of predatory intent to “minimize[] the
United States’ breach of its obligations under the WTO Agreement.” Although we
recognize this dispute under the 1916 Act may have international ramifications, those
potential ramifications cannot transform the 1916 Act into something it is not.
Following our judicial duty, our resolution of the intent requirement under the 1916
Act is based on American law and not foreign policy. As discussed below, our
reading of the 1916 Act forces us to conclude it does not require proof of predatory
intent as contemplated in antitrust laws.
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The district court confronted this predatory intent issue. Goss Graphic Sys.,
Inc. v. MAN Roland Druckmaschinen AG, 139 F. Supp. 2d 1040, 1045 (N.D. Iowa
2001). Judge Melloy concluded the “contention that a plaintiff must show predatory
intent . . . is simply not supported by the plain and unambiguous language of the 1916
Act.” Id. at 1046. Other district courts also have held the 1916 Act does not require
proof of predatory intent as contemplated by the Supreme Court in Brooke Group.
See, e.g., Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co., 35 F. Supp. 2d 597, 602-
05 (S.D. Ohio 1999); Geneva Steel Co. v. Ranger Steel Supply Corp., 980 F. Supp.
1209, 1217 (D. Utah 1997). Persuaded by these decisions from three district courts,
we likewise hold the 1916 Act does not require predatory intent as outlined in Brooke
Group.
In rejecting a predatory intent element for these types of claims under the 1916
Act, the district court followed the sound reasoning in Geneva Steel. We are similarly
convinced. The district court in Geneva Steel confronted the same arguments TKS
makes in this appeal. We wholeheartedly adopt the Geneva Steel discussion and
resolution of the intent requirement under the 1916 Act. Geneva Steel, 980 F. Supp.
at 1212-25. Had Yogi Berra said, “Don’t improve something you can’t improve,” we
surely would follow his advice on this issue. Thus, we are content to summarize the
salient points made by the district court in Geneva Steel.
The district court in Geneva Steel was asked, as we are today, whether the 1916
Act requires proof of predatory intent, and the defendants in that case essentially
argued the 1916 Act requires predatory intent because it “is an antitrust act, not a
protectionist act; that is, the [1916] Act is designed to protect competition, not
competitors.” Id. at 1214. Noting the plaintiff presented “a straightforward argument
[that] . . . [t]he 1916 Act . . . means precisely what it says, nothing more or less,” and
agreeing “[t]he 1916 Act means what its plain language says,” the district court held
“the 1916 Act is not limited only to antitrust injury or predatory price discrimination[,
but] is also designed to protect United States industry.” Id. at 1215. To underscore
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this holding, the district court declared “there is no need to resort to means of
secondary interpretation such as legislative history or reference to other statutes,”
because “[t]he language of the [1916] Act is remarkably straightforward.” Id. at
1216.6
The Geneva Steel district court recognized the 1916 Act has “traditional
antitrust prohibitions” that “seek to protect competition and are not directed at
protecting competitors.” Id. at 1215. Specifically, the court noted the 1916 Act’s
antitrust provisions prohibit dumping done with the intent to “‘restrain[] or
monopoliz[e] any part of the trade and commerce’” in the subject market. Id. (quoting
15 U.S.C. § 72). The court also recognized the 1916 Act “clearly and literally
prohibits non-antitrust and non-predatory pricing conduct,” referring to the 1916 Act’s
prohibition against dumping with the intent to “‘destroy[] or injur[e] an industry in the
United States.’” Id. at 1215, 1217 (quoting 15 U.S.C. § 72). Thus, the district court
relied on the 1916 Act’s plain language to hold:
By the words it chose, Congress protected United States industries from
unfair dumping, whether the dumper possessed predatory intent or not.
The intent required is the intent to “injure” a domestic United States
industry. When the [1916] Act states that it is unlawful to sell dumped
goods with the specific intent to injure a United States industry, it means
precisely that. Defendants want to add the limitation that such injury can
only occur if predatory pricing is involved, but the [1916] Act simply
does not say so.
6
Although the district court declared the clarity of the 1916 Act’s plain language
precluded further statutory analysis, the district court nonetheless proceeded to
conduct such an analysis. See id. at 1216-25.
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Id. at 1217.7 In the end, the court held “the Antidumping Act of 1916 is susceptible
of only one clear meaning under the circumstances of the instant case. Plaintiff has
adequately plead its case by alleging that the Defendants sold foreign steel in the
United States at prices substantially less than the actual market value or wholesale
price of such steel products in the countries of production, all with the specific intent
to injure the United States Steel Industry.” Id. at 1225; see also Wheeling-Pittsburgh
Steel, 35 F. Supp. 2d at 603 (rejecting a predatory intent element under the 1916 Act,
and holding the plaintiff “must show that the [foreign] defendants sold their product
at a price level prohibited by the statute with the intent to injure or destroy [a United
States] industry”). We cannot agree more.8
7
See also id. at 1223 (applauding a law student’s analysis of the 1916 Act’s
plain language as not requiring predatory intent because “it is encouraging to read
such commentary that recognizes the plain meaning of the words of the 1916 Act”)
(quoting Note, Rethinking the 1916 Antidumping Act, 110 Harv. L. Rev. 1555, 1557-
58 (1997)).
8
For support of its predatory intent argument in this case, TKS relies heavily on
decisions rendered during the extensive In re Japanese Electronic Products Antitrust
Litigation cases of the 1970s and 1980s. See, e.g., Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986); In re Japanese Elec. Prods. Antitrust Litig.,
807 F.2d 44 (3d Cir. 1986); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 319(3d Cir. 1983); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 494 F. Supp.
1190 (E.D. Pa. 1980); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 402
F. Supp. 251 (E.D. Pa. 1975). We give little weight to TKS’s litigation position that
these courts required predatory intent as advanced by TKS, as these courts did not
specifically address the same issue we address here. However, even if these courts
adopted a predatory intent element as advanced by TKS in this litigation, we would
reject such an additional element under the 1916 Act for the same reasons the district
court in Geneva Steel rejected such arguments. See Geneva Steel, 980 F. Supp. at
1217-20.
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2. Jury Instructions
TKS argues that, even if predatory intent is not a required element under the
1916 Act, it nevertheless “is entitled to a new trial because the District Court’s jury
instructions on the intent requirement were fundamentally flawed.” For Goss to
recover on its antidumping claims against TKS, the district court instructed the jury
Goss had to prove the following elements:
First, that [TKS] commonly and systematically imported or sold, or
caused to be imported or sold, newspaper press printing units within the
United States at a price substantially less than the actual market value or
wholesale price, at the time of exportation to the United States, of
comparable printing units in Japan.
Second, that such acts were done with the intent of injuring or destroying
an industry in the United States.
Third, that Goss was injured in its business or property by reason of
[TKS]’s conduct.
To clarify the intent requirement, the district court instructed the jury on the meaning
of intent under the 1916 Act:
Intent is defined by the law as that purpose with which a person acts.
The phrase “intent of injuring” does not mean an evil desire or a motive
of causing harm. To act with an “intent of injuring” means to act with
an intent to cause pecuniary loss, rather than simply to win sales and earn
profits for oneself. The phrase “intent of destroying” means to act with
an intent to put a United States industry out of business.
Part of this instruction finds its genesis in section 6.18.656 of the Eighth Circuit
Manual of Model Criminal Jury Instructions, in which “intent to injure” is defined as
“to act with intent to cause pecuniary loss.”
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Before trial, Goss and TKS each submitted proposed instructions defining
intent. Goss proposed the following jury instruction: “Intent is defined by the law as
that purpose with which a person acts. The phrase ‘intent of injuring’ does not mean
an evil desire or a motive of causing harm. To act with an ‘intent of injuring’ means
to act with an intent to cause pecuniary loss.” TKS, on the other hand, proposed the
following jury instruction:
TKS’s importation of large newspaper printing presses cannot violate the
anti-dumping statute unless TKS imported the units with a specific intent
to injure or destroy the large newspaper printing press industry in the
United States. “Intent” means that it was the actor’s conscious objective
to injure or destroy the large newspaper printing press industry.
A foreign seller who is motivated solely by a desire to make a profit for
itself does not have a specific intent to injure or destroy a United States
industry. The foreign seller’s knowledge that its sales will capture
business away from its United States competitors does not, standing
alone, demonstrate a specific intent to injure the United States industry.
It is apparent the district court blended the parties’ proposed instructions to craft the
intent instruction.
We review the district court’s decision to give its particular instructions for an
abuse of discretion. Throneberry v. McGehee Desha County Hosp., 403 F.3d 972,
976 (8th. Cir. 2005). When reviewing the instructions given by the district court, “we
ask ‘whether the instructions, taken as a whole and viewed in light of the evidence and
applicable law, fairly and adequately submitted the issues in the case to the jury.’” Id.
at 976-77 (quoting Jones v. Swanson, 341 F.3d 723, 734 (8th Cir. 2003)). As long as
the district court correctly instructed the jury on the substantive issues, we allow the
district court to exercise its sound discretion in selecting “the actual ‘form and
language of jury instructions.’” Id. at 977 (quoting Jones, 341 F.3d at 734). We will
not reverse a jury verdict based on erroneous instructions unless the errors affected a
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party’s substantial rights. Id. Thus, erroneous jury instructions necessitate a new trial
only when we conclude the errors “‘misled the jury or had a probable effect on the
jury’s verdict.’” Burry v. Eustis Plumbing & Heating, Inc., 243 F.3d 432, 434 (8th
Cir. 2001) (quoting E.I. du Pont de Nemours & Co. v. Berkley & Co., Inc., 620 F.2d
1247, 1257 (8th Cir. 1980)).
The district court’s instruction on intent is the most troubling issue on appeal.
TKS’s argument that the district court allowed the jury to find TKS violated the 1916
Act simply by trying to win sales for itself is interesting, but ultimately unavailing.
To instruct the jury properly on the elements required to prove a dumping claim under
the 1916 Act, the district court simply needed to ask the jury whether TKS sold
printing press equipment in the United States at dumped prices with the intent to
injure or destroy the United States printing press industry. Although the district court
made this straightforward task a bit more difficult by giving its intent instruction, we
conclude the district court did not abuse its wide discretion in formulating the intent
instruction.
The district court properly instructed the jury on the elements of Goss’s
antidumping claim, and we must remember this fact when cherry-picking one
instruction–the intent instruction–out of the district court’s entire set of instructions
to the jury. Before the jury considered whether TKS acted with the requisite intent,
it already had found TKS “commonly and systematically” dumped underpriced goods
onto the United States printing press market. Thereafter, the jury simply was trying
to determine whether TKS’s dumping was done with the intent to injure or destroy the
United States printing press industry. A reasonable jury can understand this
requirement without much assistance from the court. In essence, this might be a
scenario where lawyers, in their attempt to define a legal principle, might be better off
trusting the knowledge and common sense of lay persons.
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Regardless, we cannot view the intent instruction in a vacuum filled only with
law, unaccompanied by common sense and everyday reason. Rather, we must view
the instruction along with the evidence adduced at trial. Here, the evidence showed
Goss was the United States printing press industry. If a foreign manufacturer of
printing press equipment sold printing press additions at dumped prices in the United
States with the intent to injure or destroy Goss, then that foreign manufacturer violated
the 1916 Act because it acted with the requisite intent to injure or destroy the United
States printing press industry. In essence, the jury was asked whether TKS intended
to injure or destroy Goss.
The intent instruction correctly focused the jury on the quintessential question
of why TKS dumped underpriced products onto the United States printing press
market. The district court told the jury TKS must have acted “with an intent to cause
pecuniary loss.” In the same sentence, the district court explained the requisite intent
was something different than TKS’s intent “simply to win sales and earn profits for
[it]self.” The jury was instructed that dumping products onto the United States
printing press market was not unlawful if TKS intended to win sales and earn profits.
The district court told the jury such dumping was unlawful only if TKS intended to
cause Goss pecuniary loss, i.e., to injure or destroy Goss. TKS could have dumped
printing press additions onto the United States market for its own benefit to increase
sales and profits, and the 1916 Act would have had nothing to say about it. However,
when TKS dumped products onto the United States market to injure–and even
destroy–the sole American domestic manufacturer in that industry, the 1916 Act
reared its head to prohibit such conduct.
Although the intent instruction is arguably confusing if read by itself, the
instruction is clarified when viewed as part of the entire set of instructions and
accompanied by the evidence presented at trial. In the end, we are convinced the
instructions focused the jury’s attention on determining why TKS dumped printing
press additions onto the United States market–to sell its products and make profits, or
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to injure or destroy Goss. And, as discussed below, the jury had more than sufficient
evidence to conclude TKS dumped products to injure or destroy Goss, i.e., to cause
Goss pecuniary loss.
In addition to concluding the district court did not erroneously instruct the jury,
we also conclude any instructional error did not change the outcome of the trial.
Viewing the instructions as a whole, the jury was asked whether TKS’s dumping
practices were intended to injure or destroy Goss, which solely represented the United
States printing press industry. This straightforward task was certainly one a
reasonable juror could tackle with little assistance from lawyers. Furthermore, the
jury’s verdict reveals it was not confused by the district court’s instructions, as the
jury found for Goss only on three of Goss’s six dumping claims. This measured result
showed, in part, the jury was not confused by the instructions. We also note TKS
presented no evidence or argument that the jury actually was confused by the
instruction on intent.
B. Sufficiency of the Evidence
1. Intent to Injure or Destroy United States Industry
As alluded to above, the jury was asked a simple question–did Goss prove TKS
dumped printing press additions onto the United States market with the intent to injure
or destroy the printing press industry. TKS seems to challenge the jury’s finding that
Goss succeeded in proving intent. Therefore, we will consider whether sufficient
evidence supports that finding.
After the jury found TKS commonly and systematically dumped underpriced
printing press additions onto the United States market, the jury was asked whether
TKS’s dumping was intended to injure or destroy the United States printing press
industry. Again, as Goss represented the entire United States printing press industry,
the jury had to decide whether TKS intended to injure or destroy Goss. The jury
found TKS acted with such an intent. Viewing the evidence in a light most favorable
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to the jury’s verdict and affording all reasonable inferences in Goss’s favor, we
conclude the evidence supports the jury’s finding.
Once the jury found TKS commonly and systematically dumped underpriced
printing press additions onto the United States market, the jury was directed to
consider why TKS engaged in such behavior, i.e., the jury was asked to consider
TKS’s intent. In delving into TKS’s intent, the jury no doubt looked at TKS’s own
words and deeds. Several glaring pieces of evidence support the verdict. First, TKS
believed Goss was the “enemy,” not just a foreign competitor. And TKS was not
interested just to compete with Goss–TKS wanted to destroy Goss. As seen in the
December 17, 1993, letter, TKS wanted to “win[] completely this survival game.” To
us, this evidence tends to prove TKS was on a mission to make Goss–the sole
domestic printing press manufacturer–extinct. Extinction sounds much like
destruction, and is rather strong evidence of TKS’s intent to injure or destroy Goss.
Second, TKS was pleased to hear Goss was suffering serious financial
difficulties and was in a vulnerable position. After years of dumping millions of
dollars of its products onto the United States market, TKS learned Goss was forced
to close its main manufacturing plant and lay off its employees. TKS reveled in this
news. This evidence also reflects TKS’s intent to injure or destroy Goss.
Third, TKSC instructed its United States subsidiary to win a particular order for
printing press additions “by all means.” Although this evidence strongly supports the
dumping element, it, too, supports a finding of intent. The jury reasonably could have
concluded TKS intended to do anything to drive Goss out of the United States printing
press business.
Fourth, TKS attempted to cover up its dumping practices. Specifically, Goss
presented evidence to the jury that TKS (1) knew it faced dumping problems because
of its conduct; (2) made secret rebate deals with newspapers to conceal dumping
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issues; (3) tried to destroy or conceal evidence of its dumping practices; and
(4) sought to avoid written agreements when trying to skirt antidumping laws. When
this conduct is viewed in light of the evidence listed above, the jury reasonably could
have concluded TKS knew it was engaging in unlawful conduct, but nevertheless
continued to violate the antidumping laws in its desire to injure or destroy its
enemy–Goss.
Although we recognize the 1916 Act differentiates between fierce, foreign
competition and destructive dumping done with the requisite intent, we believe the
district court properly submitted this dispute to the jury–especially on the intent issue.
In the end, the jury heard evidence TKS dumped over $125,000,000 worth of printing
press additions onto the United States market in the 1990s. The 1916 Act compelled
the jury to consider why TKS chose to offer its products at dumped prices in the
United States. The district court’s intent instruction asked the jury to decide whether
TKS dumped printing press additions onto the United States market in a competitive
bid to win sales and earn profits, or whether TKS engaged in dumping with the intent
to injure or destroy Goss. The record supports a finding TKS acted with the requisite
intent.
2. Price Erosion Theory
Although TKS readily admits Goss’s expert witness “provided detailed
assertions that TKS’s successful sales were at dumped prices,” TKS contends Goss
presented no evidence to support the jury’s verdict on its price erosion claims, i.e.,
Goss presented no evidence TKS’s dumped prices caused Goss’s losses on the
Newark Star-Ledger and Orlando Sentinel contracts. Thus, we address whether
sufficient evidence supports the jury’s finding that TKS’s common and systematic
dumping of printing press additions with the intent to injure or destroy the United
States printing press industry caused Goss to suffer price erosion damages on its sales
to the Newark Star-Ledger and the Orlando Sentinel.
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An antidumping claim under the 1916 Act necessarily involves at least two
competitors–one foreign and one domestic. The foreign competitor violates the 1916
Act when it dumps underpriced products with the requisite intent, which, in turn,
causes the domestic competitor to lower its prices. See Helmac Prods. Corp. v. Roth
(Plastics) Corp., 814 F. Supp. 560, 574-75 (E.D. Mich. 1992) (stating “a [domestic]
business is injured when it must lower its prices in response to its [foreign]
competitor’s unfair practices”). Thus, price erosion damages are recoverable in
situations where a domestic manufacturer lowers its prices in response to a foreign
manufacturer’s violation of the 1916 Act. See id. at 575 (holding price suppression
damages are recoverable under the 1916 Act even when a domestic manufacturer does
not lose sales to a foreign competitor offering dumped prices).
We conclude the record contains sufficient evidence to support the jury’s
verdict in Goss’s favor on its price erosion claims involving the Newark Star-Ledger
and the Orlando Sentinel. According to the evidence adduced at trial, TKS sold over
$125,000,000 worth of printing press additions in the United States in the 1990s.
Goss’s expert witness testified all of these sales were at dumped prices. The evidence
further demonstrated Goss was forced to react to this glut of dumped products by
lowering its prices. Of course, hindsight is 20/20, and we now know Goss probably
lowered its prices too much during the closed bidding process in response to TKS’s
unlawful dumping practices, i.e., TKS’s dumped prices were higher than Goss’s sale
prices. However, Goss’s inability to predict precisely how drastic TKS was cutting
its prices (with the intent to injure or destroy Goss) does not afford TKS a sanctuary
on appeal, as TKS’s unlawful conduct prompted Goss to react. We simply ask
whether sufficient evidence supports the jury’s finding that TKS’s common and
systematic dumping with the intent to injure or destroy Goss caused Goss to lower its
prices on the Newark Star-Ledger and Orlando Sentinel sales. It does.
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3. Comparable Products
TKS also argues it “is entitled to judgment as a matter of law because Goss did
not present sufficient evidence to demonstrate that TKS was selling ‘articles within
the United States at a price substantially less than the actual market value or wholesale
price of such articles’ in Japan.” (citing 15 U.S.C. § 72) (emphasis added). The Third
Circuit Court of Appeals has recognized the 1916 Act requires “proof that a price
differential exists between two comparable products, one of which is imported or sold
in the United States and the other of which is sold in the exporting country.” In re
Japanese Elec. Prods. Antitrust Litig., 723 F.2d 319, 324 (3d Cir. 1983). However,
the Third Circuit also held “the 1916 Act does not require a comparison only between
identical products.” Id. at 325.
The parties did not dispute this standard, and the district court also agreed, as
seen by its instruction to the jury that Goss had to prove TKS “commonly and
systematically imported or sold, or caused to be imported or sold, newspaper press
printing units within the United States at a price substantially less than the actual
market value or wholesale price, at the time of exportation to the United States, of
comparable printing units in Japan.” The district court then defined “comparable”:
the technological differences between products should be compared in
terms of customer use and preference and marketability. Products do not
need to be identical to be comparable. To be comparable, products must
be more than functional equivalents or in the same generic category. The
comparison also must take into account the technological significance of
any difference between the products and the differences in production
costs caused by such differences. That products sold in Japan may have
technical components that make them work in Japan while products sold
in the United States have technical components that make them work in
the United States does not make the products noncomparable.
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TKS does not contend these instructions are wrong. Instead, TKS simply asserts
sufficient evidence does not support the jury’s findings that the products at issue were
comparable.
Goss presented evidence that TKS’s dumped products in the United States were
“essentially the same” as the products TKS sold in Japan. One Goss witness testified
“the TKS additions sold in Japan and the USA are directly comparable in terms of
technology, construction, basic design, and value.” According to testimony heard by
the jury, a common printing press addition TKS sold in the United States “is
absolutely identical between the–those units that are shipped in the US and those units
that are shipped to Japan.” Goss’s expert witness also compared the printing press
additions TKS sold in the United States with the equipment TKS sold in Japan, and
concluded the equipment was comparable. Finally, the evidence further showed TKS
itself realized it had dumping concerns, especially involving the sales to The Dallas
Morning News and to the Newark Star-Ledger. All of this evidence required the
district court to submit the comparability question to the jury, and the jury found the
printing press additions TKS sold to The Dallas Morning News, the Newark Star-
Ledger and the Orlando Sentinel were comparable to the equipment TKS sold in
Japan. We will not disturb the jury’s verdict.
C. Reputation Evidence
TKS contends it “is entitled to a new trial because the District Court erred in
ruling that evidence of Goss’s poor reputation and poor financial situation should be
excluded as irrelevant under Federal Rules of Evidence 401 and 402.” Specifically,
TKS sought to present evidence to the jury concerning “Goss’s poor reputation in the
newspaper community.” TKS’s argument on appeal stresses Goss lowered its prices,
not in response to TKS’s unlawful dumping, but in response to Goss’s poor reputation
in the newspaper industry.
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At trial, the district court specifically questioned TKS’s attorneys about the
evidence relating to the sales at issue to determine the relevancy of TKS’s reputation
evidence:
THE COURT: There are twelve specific sales that are at issue here.
Is there going to be evidence from any of these
customers of TKS that they made their decision to
buy a TKS product in part because of the reputation
that Goss had for not taking care of its customers in
the mid 1990s to late 1990s?
[TKS ATT’YS]: Mr. Sheehan from the Dow Jones will testify that the
1998 Dow Jones purchase – among the things he was
aware of during the negotiation with Goss was
disastrous installations it had with the same kind of
unit with other newspapers.
....
THE COURT: I don’t see how any of this is relevant, except
documents that may come in through [the single
newspaper] that relate specifically to what they knew
or what they were thinking at the time they decided
to buy the TKS product over the Goss product. But
otherwise, none of the rest of this [generalized
reputation evidence] is going to come in because it’s
not relevant.
We review the district court’s evidentiary rulings for an abuse of discretion, but
never lose sight that “[a]n allegedly erroneous evidentiary ruling does not warrant a
new trial unless the evidence was so prejudicial that a new trial would likely produce
a different result.” Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 833 (8th
Cir. 2005) (citations and quotations omitted).
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TKS has sharpened its argument on appeal, but it does not convince us we must
reverse the district court’s evidentiary decisions and grant a new trial. Like the district
court, we do not believe TKS laid any foundation to show Goss’s generalized
reputation in the newspaper industry was relevant to why the newspapers at issue in
this case purchased printing press additions from either TKS or Goss. Furthermore,
TKS did not present evidence to show Goss lowered its prices on the sales at issue to
fend off its poor reputation in the newspaper industry. Mere speculation could not
suffice. The bottom line is the district court did not abuse its considerable discretion
in deciding generalized reputation evidence would serve no purpose other than to
divert the jury’s attention away from the relevant evidence and issues.9
D. Statute of Limitations10
TKS’s final argument is the district court misapplied the four-year statute of
limitations to Goss’s allegations that TKS violated the 1916 Act when it sold printing
press additions to The Dallas Morning News, contending Goss’s claims relating to
TKS’s sales of printing press additions to The Dallas Morning News were time-
barred. Specifically, TKS maintains “the limitations period [on this claim]
commenced in 1994 because the agreement to deliver two color tower additions in
1996 arose from an obligation established in the contract executed by TKS and [The
Dallas Morning News] in 1994.” TKS further argues that, “[a]lthough [The Dallas
9
We also note the district court allowed TKS to present evidence to the jury that
Goss had customer service issues with some newspapers. The district court also
allowed TKS to ask a newspaper representative how Goss’s reputation impacted sales
to that newspaper. Thus, when TKS offered relevant evidence on Goss’s
reputation–as opposed to generalized evidence employing speculation–the district
court correctly ruled it admissible.
10
The 1916 Act does not contain a limitations period. The district court
addressed this issue and determined, based on similarities between the 1916 Act and
section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.
§ 15, a four-year statute of limitations applied. The parties do not challenge this
determination.
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Morning News] and TKS renegotiated the contract in 1996, the terms of the agreement
remained effectively unchanged from those established in 1994.”
We conclude the district court did not misapply the four-year statute of
limitations by allowing Goss to present evidence and recover damages on TKS’s 1996
renegotiated contract with The Dallas Morning News. The evidence showed that,
after TKS was faced with dumping violations arising out of its 1994 contract with The
Dallas Morning News, TKS sought to renegotiate the contract. In 1996, TKS and The
Dallas Morning News renegotiated the terms of the 1994 contract to avoid a sale of
printing press additions at dumped prices. The evidence showed TKS induced The
Dallas Morning News to renegotiate the 1994 contract by offering a secret rebate so
The Dallas Morning News still would end up receiving the dumped price. This
manipulative conduct to sell the additions at dumped prices, which occurred in 1996,
violated the 1916 Act, and was clearly within the statute of limitations. To be blunt,
TKS’s renegotiated contract with The Dallas Morning News in 1996 was as much a
violation of the 1916 Act as was the 1994 contract.11
11
Alternatively, we conclude TKS waived its statute of limitations argument
during the following exchange at trial:
THE COURT: Which sales, then, did you call–did you
determine–or do you argue within the statutory
period?
[GOSS ATT’Y]: It would be the Dallas Morning News 1996 . . .
....
THE COURT: Does the Defense agree that the statute of limitations
is appropriately applied, as indicated by the Plaintiff,
to [The] Dallas Morning News [sale in 1996]. . . ?
[TKS ATT’YS]: . . . I believe so, Your Honor. . . . That’s correct.
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment in Goss’s
favor.
SMITH, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority's view that the weight of persuasive precedent holds
that Goss need not plead or prove specific predatory intent to prevail under the Anti-
dumping Act of 1916. However, I disagree regarding the adequacy of the district
court's jury instruction on intent. Competition is the very hallmark of American free
enterprise. Limitations upon it should not be lightly imposed or enforced. As noted by
Geneva Steel Co. v. Ranger Steel Supply Corp., 980 F. Supp. 1209, 1224 (D. Utah
1997), while the 1916 Act clearly protects competitors as well as competition, it
neither criminalizes nor prohibits normal competition or capitalism. TKS is certainly
entitled to place its products into the American press market, as long as it does not do
so with the prohibited intent to injure or destroy the United States press industry.
Intent to injure under the 1916 Act requires more than an intent to cause pecuniary
loss.
We review the district court's jury instructions for abuse of discretion "looking
to the instructions as a whole to determine whether they fairly submitted the issues to
THE COURT: So there’s really no disagreement between you on
the damages? . . . Which sales or - -
[TKS ATT’YS]: That’s correct.
Furthermore, in a pretrial submission to the district court, TKS wrote, “Following a
lengthy and convoluted negotiation between TKS and [The Dallas Morning News]
during 1996, the parties agreed to rescind the option clause of the 1994 contract, and
to enter into a new contract for two towers.”
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the jury." Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir.
2005). In instructing the jury on intent in this case, the district court stated:
Intent is defined by the law as that purpose with which a person acts. The
phrase "intent of injuring" does not mean an evil desire or a motive of
causing harm. To act with an "intent of injuring" means to act with an
intent to cause pecuniary loss, rather than simply to win sales and earn
profits for oneself. The phrase "intent of destroying" means to act with
an intent to put a United States industry out of business.
The district court erred in instructing the jury that "intent of injuring" only requires
proof of an "intent to cause pecuniary loss." TKS maintains that a party cannot intend
to win sales for itself without also intending to cause pecuniary loss to its competitors.
Within the unique facts of this case, I believe they are correct. In a very limited,
specialized market such as the press industry, winning a sale from a competitor, even
by legitimate efforts, would likely result in "pecuniary loss" to another seller.
Something more than reduced sales must be shown to justify the imposition of treble
damages under the Act.
Therefore, because the district court erred in its instruction that "intent of
injuring" means "intent to cause pecuniary loss," a new trial should be granted.
______________________________
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