Sunday, December 5, 2010
The Shipping News: Eastern District Of Wisconsin Finds Data From Customs Records Admissible Under Rule 803(17)
Federal Rule of Evidence 803(17) provides an exception to the rule against hearsay for
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
As I have previously noted (see, e.g., here), this exception covers entries from the Kelley Blue Book. And, as the recent opinion of the United States District Court for the Eastern District of Wisconsin in Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co. Ltd., 2010 WL 4867617 (E.D. Wis. 2010), makes clear, the exception also covers certain data compilations from Customs records.
In Jui Li Enterprise Co.,
Plaintiffs, Fond du Lac Bumper Exchange, Inc. and Vehimax International, LLC, American purchasers of sheet metal aftermarket auto parts ("AM Parts"), br[ought]...consolidated, putative class actions alleging that defendants, Taiwanese manufacturers of such parts, and their American subsidiaries, violated Section 1 of the Sherman Anti-Trust Act by entering into an agreement to fix the prices of many AM Parts and to engage in other anti-competitive conduct.
The defendants thereafter, inter alia, moved to dismiss based upon lack of subject matter jurisdiction because, under the Foreign Trade Antitrust Improvements Act of 1982 ("FTAIA"), the Sherman Act
shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless-(1) such conduct has a direct substantial and reasonably forseeable effect... on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations...and (2) such effect gives rise to a claim under the provisions of this Act, other than this action.
The United States District Court for the Eastern District of Wisconsin thus noted that "as a result of the FTAIA, federal courts do not have jurisdiction over most cases involving foreign commerce." That said, the court noted that "the FTAIA does not bar jurisdiction if the conduct at issue involves import trade or commerce or has a direct, substantial, and reasonably foreseeable effect on import trade or commerce."
The court then found such an effect in the case before it because, inter alia, the
plaintiffs present[ed] information from U.S. Customs records indicating that defendants ship millions of dollars of AM Parts to the United States. Among this information is material identifying defendant Gordon as a consignee, i.e., recipient of AM Parts. The information is based on bills of lading compiled by a company whose business is to compile data based on Customs records. Defendants argue that I should not consider this information, but I conclude that it is admissible as an exception to the hearsay rule. See Fed.R.Evid. 803(17) (making admissible “published compilations generally used and relied upon by the public or by persons in particular occupations”). The declaration of Ryan Peterson is sufficient to establish that the compilation is of the type specified in the Rule. Thus, based on the above-described activities, it is reasonable to conclude that defendants' alleged conduct involves import trade or commerce.