A. Overview of Relevance
1. Liberal Policy of the Federal Rules of Evidence
The Federal Rules of Evidence empower the trial judge with great
latitude to determine whether evidence is relevant: Evidence is relevant if
“(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in
determining the action.” FED. R. EVID. 401. The Federal Rules encourage
liberal admission of relevant evidence at trial. See FED. R. EVID. 402
(“Relevant evidence is admissible” unless otherwise provided by the
U.S. Constitution, a federal statute, the Federal Rules of Evidence or
other rules prescribed by the Supreme Court); Daubert v. Merrell Dow
Phar ms., Inc., 509 U.S. 579, 587 (1993) (reasoning that the basic
standard of relevance under Rule 402 is a liberal one).
A district court may properly exclude relevant evidence, however, “if its
probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” FED. R. EVID. 403; see Huddleston v. United States, 485 U.S.
681, 687 (1988) (“Rules 401 and 402 establish the broad principle that
relevant evidenceevidence that makes the existence of any fact at issue
more or less probableis admissible unless the Rules provide otherwise.
Rule 403 allows the trial judge to exclude relevant evidence if, among
other things, ‘its probative value is substantially outweighed by the
danger of unfair prejudice.’”). The Commentary to Rule 403 notes that
the court’s determination of whether to exclude relevant evidence calls
“for balancing the probative value of and need for the evidence against
the harm likely to result from its admission.” FED. R. EVID. 403 advisory
committee’s note. For evidence to be unfairly prejudicial within the
meaning of Rule 403, it must have “‘an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one.’” Old Chief v. United States, 519 U.S. 172, 180 (1997)
(quoting Advisory Committee Notes on Fed. R. Evid. 403). Rather than
exclusion in such cases, however, courts are often willing to issue a
limiting jury instruction to minimize the risk of potential prejudice. “[I]t
is the law, pure and simple, that jury instructions can sufficiently protect
48 Antitrust Evidence Handbook
a defendant’s interest in being free from undue prejudice.” United States
v. P erholtz, 842 F.2d 343, 361 (D.C. Cir.), cert. denied, 488 U.S. 821
(1988) (citation omitted).
2. Liberal Policy in Antitrust Cases
The liberal policy of admitting relevant evidence also applies to federal
antitrust actions. Courts have reasoned that a “general rule favoring
admissibility of evidence is particularly applicable to antitrust cases
where the liberal reception of evidence is necessary for the just
determination of singularly complex disputes.” Commonwealth Edison
Co. v. Allis-Chalmers Mfg. Co., 40 F.R.D. 96, 100 (N.D. Ill. 1966); see
also City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp.
1257, 1264 (N.D. Ohio 1980) (recognizing that “the general rule
favoring admissibility of evidence is particularly important in antitrust
cases where liberal reception of evidence may be necessary for the just
determination of particularly complex disputes”).
B. Evidence of Other Conduct
An antitrust litigant may want to proffer evidence that its adversary
engaged in certain anticompetitive conduct in contexts outside the
parameters of the pertinent action. Federal Rule of Evidence 404(b)
permits admission of “evidence of other crimes, wrongs, or acts” to
prove a material issue other than character, such as “motive, opportunity
intent, preparation, plan, knowledge, identity and absence of mistake or
accident.” FED. R. EVID. 404(b). For instance, a plaintiff may want to
proffer evidence of a defendant’s prior anticompetitive conduct in the
same or comparable product markets. Likewise, in a merger case, a party
opposing a merger may want to show that the acquiring party artificially
altered market conditions (e.g., by raising prices or reducing capacity) in
prior mergers in the same or similar product markets when it previously
combined with competitors (a “natural experiment”). Under the Rule 403
balancing test, a court will determine the admissibility of that evidence
by weighing its probative value against the danger of unfair prejudice.
1. Other Conduct and Relevancy in Merger Cases
In cases alleging anticompetitive conduct or which challenge mergers,
evidence of prior alleged anticompetitive activities in the same or similar
product markets may be relevant. For example, although not judicially
binding, the 2010 Horizontal Merger Guidelines state that the U.S.
antitrust enforcement agencies “consider any reasonably available and
reliable evidence to address the central question of whether a merger

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT