“Because Sutter’s systemwide contracting was the mechanism by which Sutter allegedly imposed its anticompetitive contract terms, these admissions are highly relevant to plaintiffs’ theory of the case,” Judge Koh wrote.
Those memos and testimony also could’ve “undermined Sutter’s alternative explanations for its behavior at trial,” she said.
The majority also agreed with the purchasers that omitting the word “purpose” from the jury instructions was a legal error that “was not harmless.” The move was at odds with both the text of the Cartwright Act, as well as the California Supreme Court’s “longstanding interpretation thereof,” it said.
And Sutter hasn’t demonstrated otherwise, the majority held.
“On harmless error review, Sutter has the burden to prove that it is ‘more probable than not’ that the jury would have reached the same result if properly instructed,” Judge Koh wrote. “Sutter cannot do so.”
Judge Koh also addressed Judge Bumatay’s contention in his dissent that their finding is new.
