Blawgletter®

Supreme Court Takes LIBOR Case

Get ready for the Supreme Court to resolve a question that has divided courts of appeals for years:

Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?

If that doesn't sound sexy enough for you, consider that the issue arises in massive litigation over manipulation of LIBOR -- the London Inter-bank Offer Rate, a key interest rate benchmark for lenders and borrowers worldwide. In one of the cases that constitute In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 1:11-md-02262-NRB (S.D.N.Y.), the plaintiffs alleged only a federal antirust claim, and as a result of the district court's dismissal of all antitrust claims the case effectively ended for those plaintiffs. Must they nonetheless wait until everyone else finishes with their surviving claims before these antitrust-only plaintiffs can prosecute an appeal?

Alison Frankel of Reuters offers a splendid exposition of the background, the stakes, and the potential impact of the Court's granting of review. Frankel's piece highlights the effect of review on Blawgletter's clients in the case -- and quotes us to boot:

[I]t’s certainly good news for Libor claimants that the U.S. Supreme Court granted a petition for certiorari by bond investors whose case [District Judge] Buchwald dismissed in its entirety when she bounced the Libor antitrust claims. “We are both optimistic and pleased,” said Barry Barnett of Susman Godfrey, who represents a class of investors in over-the-counter securities in the Libor litigation and filed an amicus brief urging the justices to grant the bond investors’ appeal. The cert grant, Barnett said, means that as the Libor class moves ahead with discovery on the claims that have survived Buchwald’s dismissal rulings, they have some hope that the federal antitrust claims will be revived.

The Court will likely hear oral argument in the appeal later this year.

Don't Weep for Apple . . . or Blame the DOJ

Apple settles

Apple has settled up to $841 million of antitrust claims by state attorneys-general and a nationwide class of consumers who bought e-books from Apple and its publisher co-conspirators.

The pact comes almost a year after U.S. District Judge Denise Cote in New York held Apple civilly liable for conspiracy to fix prices, a violation of section 1 of the Sherman Act. The United States brought the case, primarily for injunctive relief. Judge Cote entered a final judgment on September 5, 2013.

Before the trial, Apple had rejected a settlement offer by the Deparment of Justice before trial because, according to Apple's CEO Tim Cook, "we're not going to sign something that says we did something that we didn't do".

Amount unclear

We don't know how much Apple will pay. Its maximum exposure to the class and the states totaled $840,763,122, three times the plaintiffs' estimate of actual overcharges for e-books ($280,254,374 -- a number that reflects a 17 percent inflation of e-book prices as a result of the conspiracy).

The Wall Street Journal weighs in

Should we feel sorry for Apple? The Wall Street Journal thinks so. It absolves Apple and the publishers for engaging in what criminal law would deem a felony. It points its finger of blame instead at the Department of Justice and Judge Cote.

What did they do, you ask? Instead of "letting the market decide whether the wholesale model [which Amazon preferred] or agency model [which the conspirators agreed to adopt] should prevail", Judge Cote "dictated the outcome by ruling against Apple."

Issing-may the oint-pay

But the "market" never had a chance to decide which model to use precisely because Apple and the publishers perverted the market through collusion.  They did so to drive up the prices they could charge. Worse, in the absence of the Apple-publisher cartel, the market plainly would have chosen the wholesale model that Amazon preferred. The squelching of competition by means of an illegal agreement -- not the actions of the court or the DOJ -- dictated the outcome.

Astonishingly, the WSJ purports to regard Apple and the publishers as innocent of wrongdoing. It asserts that Apple simply "offered e-book publishers the same [agency model] deal" and that they all coincidentally accepted the offer. But the evidence showed hard-core collusion -- the kind involving secret CEO-only luncheons in private rooms of fancy restaurants and ensuing lock-step increases in prices -- not indepedent action. As Judge Cote noted in her post-trial opinion on liability:

The question in this case has always been a narrow one: whether Apple participated in a price-fixing scheme in violation of this country's antitrust laws. Apple is liable here for facilitating and encouraging the Publisher Defendants' collective, illegal restraint of trade. Through their conspiracy they forced Amazon (and other resellers) to relinquish retail pricing authority and then they raised retail e-book prices. Those higher prices were not the result of regular market forces but of a scheme in which Apple was a full participant.

United States v. Apple Inc., No. 12 Civ. 2826 (DLC), slip op. at 158 (S.D.N.Y. July 10, 2013).

Mumbo-jumbo

The WSJ's claim that Amazon's share of e-book sales "has soared" as a result of the DOJ's win is a combination of argle-bargle and mumbo-jumbo. The reasons that the paper cites for the supposed wind beneath Amazon's wings have nothing to do with breaking up the Apple-publisher cartel.

On the contrary. There is no discernible connection between the facts that Barnes & Noble "pulled back on its Nook", that "Sony and Samsung exited the e-reader market", and that Apple "seems focused elsewhere" and the breakup of the cartel. And Amazon's market share didn't "soar". It simply went back to where it was before the unlawful conspiracy. See id. at 14 ("Through 2009, Amazon dominated the e-book retail market, selling nearly 90% of all e-books.").

Prices should have risen

The WSJ ends by urging that antitrust enforcers should "stand aside and let the market determine winners and losers." That's all well and good, but if the WSJ is right that the DOJ has quashed competition, ebook prices would have soared in the last couple of years, right?

Just the opposite has happened As the leading authority on e-book prices said this on April 30, 2014:

In the nearly two years Digital Book World has been measuring the average price of a best-selling ebook, the tend has been unmistakable: down.

Best-selling ebooks cost more two years ago than they do now. Two years ago, many of the best-selling ebooks were agency priced, meaning that publishers determined the price of the books and the price was usually $10 and up.

Today, no publishers price their own books and retailers have generally lowered prices to compete with each other and sell more units.

Despite all that, L. Gordon Crovitz, who wrote the WSJ piece, preaches "humility" to Judge Cote and the DOJ. He might want to look in the mirror.

A challenge

The Second Circuit has Apple's appeal before it now. Argument will likely take place by year-end, and a decision will follow in due course.

In the meantime, Blawgletter issues this challenge to Mr. Crovitz: When the Second Circuit rules, we'll each write about it and explain how we either got it right or got it wrong.

Blawgletter can hardly wait.

Non-U.S. Claimants Get Boost from Antitrust Ruling

Foreign firms lose billions

Every year, non-U.S. firms overpay billions and billions of dollars for goods and services as a result of price-fixing, collusive market-splitting, and other restraints of trade. But many of the firms can get no relief in a U.S. court.

The reason? A U.S. statute -- the Foreign Trade Antitrust Improvements Act (FTAIA) -- generally exempts from U.S. antitrust law any "conduct involving trade or commerce (other than import trade or import commerce) with foreign nations". 15 U.S.C. 6a.

The FTAIA has an exception. It bars antitrust claims only "unless" the conduct (1) "has a direct, substantial, and reasonably foreseeable effect" on U.S. commerce and (2) "such effect gives rise to a claim under" U.S. antitrust law. Id.

Second Circuit case

The first court of appeals to address the scope of section 6a's exception read it narrowly. The Ninth Circuit construed "direct, substantial, and reasonably foreseeable effect" as requiring that the domestic effect occur as an "immediate consequence" of the defendant's conduct. United States v. LSL Biotechnologies, 379 F.3d 672, 680 (9th Cir. 2004).

Eight years later, the Seventh Circuit adopted an easier test. It heldthat section 6a(1) calls for only a "reasonably proximate causal nexus" between the foreign conduct and the domestic effect. Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 857 (7th Cir. 2012) (en banc) (quoting Makan Delrahim, Drawing the Boundaries of the Sherman Act: Recent Developments in the Application of the Antitrust Laws to Foreign Conduct, 61 N.Y.U. Ann. Surv. Am. L. 41, 430 (2005)).

A case involving third-generation USB connectors prompted the Second Circuit to weigh in on the circuit split. Lotes Company, a Taiwanese firm, alleged that competitors in Taiwan and China colluded to keep Lotes out of the USB 3.0 market. The anticompetitive pact, Lotes claimed, threatened to bankrupt Lotes and eliminate it as a competitor. 

The district court relied on the Ninth Circuit's approach to the "direct, substantial, and reasonably foreseeable effect" language in dismissing the case. Lotes appealed.

Good for overseas plaintiffs . . . and bad

The Second Circuit rejected the Ninth Circuit test and adopted the Seventh Circuit's more lenient one.

But the panel affirmed the dismissal of Lotes's case anyway. The court ruled that, although Lotes had alleged enough to show a "reasonably proximate causal nexus" for purposes of section 6a(1), it had not stated facts that demonstrated a nexus between the anticompetitive conduct and the effect of the conduct on Lotes in the U.S.:

We . . . must determine whether any domestic effect resulting from the anticompetitive conduct proximately caused Lotes's injury. We conclude that it did not. Lotes alleges that defendants' foreign conduct had the effect of driving up the prices of consumer electronics devices incorporating USB 3.0 connectors in the United States. But those higher prices did not cause Lotes's injury of being excluded from the market for USB 3.0 connectors -- that injury flowed directly from the defendant's [sic] exclusionary foreign conduct. Lotes's complaint thus seeks redress for precisely the type of 'independently caused foreign injury" that . . .falls outside of Congress's intent.

Lotes Co., Ltd. v. Hon Hai Precision Industry Co., No. 13-2280, slip op. at 47 (2d Cir. June 4, 2014) (quoting F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 173 (2004)).

Upshot

The Second Circuit's ruling in Lotes eases the first part of the FTAIA test (section 6a>1)) but strictly applies the second component (section 6a(2)). Anticompetitive conduct that takes place entirely overseas may (and in a global business almost always will) proximately cause an effect in the U.S., but the domestic effect still must "give[] rise" to the claim in the sense that it causes the injury for which the plaintiff seeks recovery.

A claim like Lotes's -- that the defendants did things in Taiwan and China to destroy Lotes as a competitive manufacturer of USB 3.0 connectors in Taiwan -- may pass the "direct" prong of the FTAIA test by alleging higher prices in the U.S.^* but fails the "gives rise to" prong unless the plaintiff felt the effects of the anticompetitive behavior in the U.S.

The case may have come out differently if Lotes could have alleged that the anticompetitive conduct in Asia had foreseeably kept it out of the U.S. market.

__________________

*The panel declined to reach the question of whether Lotes's complaint satisfied section 6a(1).

Susman Godfrey Associate Wins Antitrust Appeal

A Chance to Shine

How often do fourth-year associates get an opportunity to argue before a U.S. court of appeals?

That sort of thing occurs a lot at the place where Blawgletter has worked since 1985.

It happened most recently to Amanda Bonn, an associate in Susman Godfrey's Los Angeles office. Let us tell you the story.

A Case About Fixing Prices

The lawsuit involved federal and state law claims that 3D-3C, Panasonic, Toshiba, and SanDisk fixed prices on SD digital memory cards (the SD stands for "secure digital"). The class plaintiffs also alleged anticompetitive practices in how the card-makers licensed other manufacturers to use the defendants' SD technology patents.

3D-3C, Toshiba, and the others moved to dismiss the case on the ground that the plaintiff class had filed suit too late, beyond the four-year statute of limitations for damages claims under the federal Sherman Act. The district court granted the motion.

Writing the Brief . . . then Arguing

Ms. Bonn worked on the team that lost in the Oakland district court. Three partners from SG's Houston office joined her on the SG ninja squad.

Unsurprisingly, the associate took the lead in writing the brief to the Ninth Circuit. But now an unusual SG rule -- or guideline^* -- came into play. That rule provides, roughly, that if you wrote the argument, you make it.^**

So it happened here.

On the morning of December 5, 2013, Ms. Bonn stood before a three-judge panel of the Ninth Circuit at the James R. Browning courthouse in San Francisco. Her argument orally ripped the dismissal order to pieces. Her opponent -- a senior partner at Davis Polk & Wardwell -- could not repair the damage. In her rebuttal, Ms. Bonn stomped on the shreds that remained.

The Result

Today the panel's ruling came out. The panel reversed the dismissal on both of the grounds that Ms. Bonn had articulated, first in the brief and then in the oral argument.

The court noted that, because the plaintiffs sought only injunctive relief, the four-year statute of limitations did not apply. The "equitable defense of laches" determines the timeliness of lawsuits under federal antitrust law for an injunction, the panel pointed out. Oliver v. 3D-3C LLC, No. 12-16421, slip op. at 7-8 (9th Cir. May 14, 2014).

Their honors next held that the "continuing violation" and "speculative damages" exceptions to limitations and laches defenses applied to the plaintiffs' claims. "[E]ach time a defendant sells its price-fixed product, the sale constitutes a new overt act causing injury to the purchaser[,] and the statute of limitations runs from the date of the act." Oliver, slip op. at 9. And "[i]t would have been pure speculation whether Plaintiffs would have been harmed by Defendants' alleged unlawful acts" before they bought SD memory cards in 2007. Id. at 11.

The court therefore reversed the dismissal and remanded the case to the district court.

About the Arguer

Ms. Bonn joined SG after a clerkship with U.S. District Judge Dean Pregerson in Los Angeles. She earned a B.A. summa cum laude from UCLA in 2006 and a J.D. from Stanford Law School in 2009.

Way to go, Amanda.

 ______________________

^*Cf. Pirate's Code.

^** The rule also applies to deposition and trial witnesses. It provides in those instances that if you write it, you take the witness.

RICO Can Reach Across the Pond, Second Circuit Holds

Get ready, folks, for a new wave of cases under the Racketeer-Influenced and Corrupt Organizations Act of 1970 -- RICO, for short. The Second Circuit ruled this week that a case by the European Community and EC member states may proceed with a RICO case against RJR Nabisco for money laundering and worse. European Community v. RJR Nabisco, Inc., No. 11-2475-cv (2d  Cir. Apr. 23, 2014). Plaintiffs may now deploy RICO to reach conduct that occurs outside of the United States but that other laws cannot reach.

Morrison Presents No Barrier

The panel's decision reversed the district court's dismissal. The dismissal relied on the Supreme Court's sharp limitation of cases that attempt to apply federal law to conduct overseas. In Morrison v. Nat'l Australian Bank Ltd., 130 S. Ct. 2869 (2010), the Court upheld this ruling by the Second Circuit:

Something about a class of overseas people suing an Australian bank about securities fraud that emanated from the world's smallest continent.  They lost on subject matter grounds.  Seems the U.S. Securities Exchange Act doesn't reach so far.

See Morrison, 130 S. Ct. at ("When a statute gives no clear indication of an extraterritorial application, it has none.") (post here).

Some Predicate Act Statutes Say They Apply Overseas

The panel's reversal hinged on the fact that RICO deems violations of certain criminal statutes "predicate acts" and the fact that some of the predicate act statutes expressly allow extraterritorial application. The money laundering statute, for example, states that "[t]here is extraterritorial jurisdiction over the conduct prohibited by this section." 18 U.S.C. 1956(f). Because the EC plaintiffs alleged violations of that and other predicate act statutes that by their terms reach beyond our national borders, the largely European nature of the unlawful "enterprise" that engaged in the "pattern of racketeering activity" didn't matter. The panel held:

The claims of the Complaint asserting RICO liability for a pattern of violations of these predicates meet the statutory requirements for extraterritorial application of RICO. The district court erred in dismissing, as impermissibly extraterritorial, the RICO claims.

European Community, slip op. at 19 (foonote omitted).

Impact

Victims of foreign conduct that violates any of the dozens of statutes that RICO section 1961 defines as predicate act offenses will want to see whether the relevant statutes call for extraterritorial application. If they do, those victims will further want to look into whether the conduct overseas also satisfies the "enterprise", "pattern", and other requirements of RICO. That the victims suffered harm outside the United States may not matter under RICO. And for that reason RICO may have a rebirth of sorts.

DuPont Deflects Kevlar Antitrust Claim

Do federal judges protect their own?

Before Blawgletter suggests an answer, let's look at the case that raises the question.

The Fourth Circuit upheld a summary judgment for E. I. DuPont de Nemours & Co., ruling that the South Korean plaintiff, Kolon Industries Incorporated, failed to raise a fact issue either as to DuPont's "monopoly power" in the U.S. market for para-aramid fibers (e.g., Kevlar) or as to its "willful maintenance" of the monopoly power it did not have. Kolon Indus., Inc. v. E. I. DuPont de Nemours & Co., No. 12-1587 (4th Cir. Apr. 3, 2014) (http://www.ca4.uscourts.gov/Opinions/Published/121587.P.pdf).

The panel held, 2-1, that DuPont's sub-60-percent-and-dropping share of the market didn't give it "durable" power to control price or exclude rivals. The majority also agreed with the district court that Kolon did not present proof that DuPont's exclusive supply agreements with customers foreclosed Kolon from gaining a "critical bridge" to a big market share big enough to sustain it as a viable competitive source of para-aramids.

The panel also concluded that Kolon's delay in asking the district court to recuse himself -- due to his participation as counsel for DuPont in an earlier lawsuit that involved patents on para-aramid fibers and financial interest in his old law firm -- warranted denial of the tardy motion for recusal.

The panel separately vacated a trade secrets judgment for just shy of $1 billion against Kolon. The district court erred, the panel held, by refusing to let Kolon present evidence that DuPont disclosed some of the alleged trade secrets in the earlier lawsuit. It also ordered that the district court on remand must assign a new judge to hear the case going forward.

Those last two parts of the decision will not go in the law books. The panel chose not to publish the separate opinion. Kolon Indus., Inc. v. E. I. DuPont de Nemours & Co., No. 12-1587 (4th Cir. Apr. 3, 2014) (per curiam) (http://www.ca4.uscourts.gov/Opinions/Unpublished/121260.U.pdf).

The panel's choice -- splitting the case into two opinions, using the one it published to talk about the antitrust claim and forfeiture of the right to recusal of the trial judge, and dealing with the trade secrets case and removal of the judge who survived formal recusal in the non-precedential and unpublished one -- suggests that their honors wished not to embarrass their colleague any more than they had to. We will leave to you what that implies about the question at the top of this post.

Quote of the Day: Anthony Bolognese

You need to make it sound more like ditch-diggin'.

Anthony Bolognese, relating advice to an economist on his performance as a testifying expert.

State AG's Lawsuit Belongs in State Court, Supreme Court Holds

A 9-0 Supreme Court today ordered a federal district court to remand a case seeking restitution for all Missippians who overpaid for liquid crystal displays (LCDs) back to state court.

The lawsuit, by the Attorney General of Mississippi, accused LCD makers of conspiring to fix prices, in violation of Mississippi antitrust and consumer protection statutes.

The manufacturers removed the case under "class action" or "mass action" under the Class Action Fairness Act. The district court ruled that the case didn't qualify as a "class action" but that it did meet the "mass action" test, which requires "monetary relief claims of 100 or more persons". A Fifth Circuit panel reversed under the "general public" exception to CAFA jurisdiction over a "mass action". But it agreed that the the "mass action" moniker applied.

Affirming, the Court (per Justice Sotomayor) held that "unnamed" parties such as the absent citizens of the Magnolia State do not qualify as "persons" for purposes of the "mass action" definition. That they may meet the test for "real parties in interest" didn't matter. The Court accordingly reversed the district court's ruling remanded the case for further proceedings (i.e., remand to state court). Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036 (U.S. Jan. 14, 2014).

 

Sherman Act Ruling Favors Milk Buyers

In 2001, the two biggest sources of the milk that you buy at Stop-n-Shop, Whole Foods, Von's, and the like agree to merge.

A sluggish Antitrust Division of the U.S. Department of Justice okays the deal but tacks on a proviso that the dairy dukes -- Dean Foods and Suiza -- must divest a few of the plants that process the raw milk.

The milk mavens do spin off the plants. Yet they agree to pay the buyer, Dairy Farmers of America, millions and millions of dollars to do a poor job of running the plants and selling the milk. The payola takes the form of contracts giving DFA the right to sell tons of its raw milk to the new combo.

Do you see a per se violation of the Sherman Act?

The Sixth Circuit didn't. It held that the pact between Dean/Suiza and DFA had too much of a "vertical" aspect to fit within one of the per se realms -- price-fixing, allocating customers or areas, limiting output. Food Lion, LLC v. Dean Foods Co., No. 12-5457 (6th Cir. Jan. 3, 2014). 

The ruling means that the plaintiffs, Food Lion and Fidel Breto, will have to proceed under the "rule of reason", which (unlike the per se rule) demands proof that the restraint of trade restrained trade to an "unreasonable" extent. But that represents something of a win. The district court had thrown the case out on summary judgment.

Blawgletter agrees with the Sixth Circuit that the district court erred in granting summary judgment against the plaintiffs. The trial court shouldn't have ignored expert evidence that tended to show that the agreement not to compete pushed milk prices up within a discrete area, as the panel rightly ruled. But we disagree that the plaintiffs in the case don't have a proper per se case. We don't see how the fact that the payola went to DFA instead of straight to the DFA affiliate that carried out the agreement not to compete matters.

Nor did the court help clarify a legal area that many, including lots of lawyers, find daunting if not impenetrable. For example:

• The panel wrote that "[t]he district court's decision to use the rule of reason is a question of law" but didn't explain how a "decision" could constitute a "question". The decision answers a question of law. The question of law consists in the legal rule that informs the decision. The decision and question aren't the same thing.
• The court said that the per se rule counts as a "less common method" for judging the lawfulness of restraints on trade and "should be [applied] reluctantly and infrequently". Yet the rule applies 100 percent of the time to price-fixing, for instance, and other kinds of patent efforts to conspire against the common good. In what way is it "less common"?
  
• The opinion observed that "[v]ertical restraints . . . have more redeeming qualities" than horizontal ones but doesn't say why a supplier's forcing a buyer to, for example, charge higher prices has any "redeeming qualities". Vertical restraints may be more likely to have redeeming qualities than horizontal ones, but they don't always.
• The panel relied on the Antitrust Division's and Federal Trade Commission's Horizontal Merger Guidelines from 1997 rather than the current ones from 2010. The newer Guidelines downplay the use of the "hypothetical monopolist" and other mechanical tests for judging the likely effects of a merger. The shift matters -- and in fact appears to have prompted a less sluggish Antitrust Division to sue Dean Foods in 2009. (The AD and Dean Foods settled that case in 2011.)
• The court opined that "Plaintiffs should not be able to change their characterization of the conspiracy midstream in order to gain a more favorable outcome" as if courts shouldn't permit a party to adjust its allegations in light of the evidence it discovers and in response to the rulings of the courts. Why not end the case at the pleadings stage if that's the test, eh?
• The panel sought support for its per se v. rule-of-reason ruling by saying that, "especially at the summary judgment stage, this is not a 'clear cut' case of an obviously anticompetitive restraint", suggesting that the summary judgment rule imposes a standard higher than the test for upholding a jury verdict. If anything, a court must resolve doubts at the summary judgment phase of case in favor of the non-moving party -- not against it.
• The opinion took the fact that the Antitrust Division did not block the deal as proof that it "sanctioned the agreement at issue here, which presumably would not have occurred if the agreement was a per se unreasonable restraint on trade." The AD did no such thing. It's decision not to sue in no way "sanctioned" the deal. And even the low-key Antitrust Division of that era felt enough worry to try to prevent post-merger abuse of market power.

We don't mean to make light of the difficulties of judging antitrust cases. It isn't at all easy. But we do feel strongly that it's really important to get the details right. And, in this case, the panel didn't do that.

Attack on Standing Fails to Sink $24 Million Qui Tam Claim in Fourth Circuit

The Fourth Circuit reversed a judgment that awarded nothing -- zilch -- on a winning $50 million False Claims Act claim for civil penalties.

The panel first ruled that FSA relator Kurt Bunk had "standing" to sue under the statute despite his lack of personal injury. The harm to the federal government (from a scheme to fix prices and rig bids on charges for moving goods of U.S. military personnel) satisfied the injury-in-fact requirement for constitutional standing to sue, the panel held. The court thus joined "the two other circuits that have decided the issue." United States ex rel. Bunk v. Gosselin World Wide Moving, N.V., No. 12-1369, slip op. 30 (4th Cir. Dec. 19, 2013) (citing United States ex rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 804 (10th Cir. 2002), rev'd on other grounds, 549 U.S. 479 (2007), and Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749, 752 n.3 (5th Cir. 2001) (en banc)).

The court also concluded that the award of zero in civil penalties could not stand. Sure, the panel noted, the statutory requirement of at least a $5,500 penalty for each of 9,136 false invoices -- totalling north of $50 million -- seemed harsh in light of a paltry $2 million or so in possible losses to the government. But Bunk agreed to take far less -- a mere $24 million -- as he had a right to do. "Under the circumstances before us, we are satisfied that the entry of judgment on behalf of Bunk for $24 million on the DPM claim would not constitute an excessive fine under the Eighth Amendment. That amount, we think, appropriately reflects the gravity of [price-fixer/bid-rigger] Gosselin's offenses and provides the necessary and appropriate deterrent effect going forward." Id. at 44.