FSM SUPREME COURT TRIAL DIVISION
Cite as AHPW, Inc. v. FSM
12 FSM Intrm. 544 (Pon. 2004)

[12 FSM Intrm. 544]

AHPW, INC.,
Plaintiff,
 
vs.
 
GOVERNMENT OF THE FEDERATED STATES OF
MICRONESIA and GOVERNMENT OF THE
STATE OF POHNPEI,
Defendants.
 
CIVIL ACTION NO. 1999-053
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Trial: October 20-23, 2003
Decided: July 8, 2004

APPEARANCES:

For the Plaintiff:                  Douglas F. Cushnie, Esq.
                                            P.O. Box 949
                                            Saipan, MP 96950
                                
                                            Matt Mix, Esq.
                                            P.O. Box 1555
                                            Kolonia, Pohnpei FM 96941
 
For the Defendant:            Marstella Jack, Esq.
(Pohnpei)                           Assistant Attorney General
                                           Pohnpei Department of Justice
                                           P.O. Box 1555
                                           Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Commerce; Torts ) Anticompetitive Practices
     Under 32 F.S.M.C. 302(3), it is illegal for one or more persons to create or use an existing combination of capital, skill, or acts the effect of which is to prevent competition in the manufacture, making, transportation, sale, or purchase of any merchandise, produce, or commodity. The State of
 
[12 FSM Intrm. 545]
 
Pohnpei is a "person" for purposes of this statute. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 551 (Pon. 2004).
 
Commerce; Statutes ) Construction
     "Competition" means the effort of two or more parties, acting independently, to secure the business of a third party by the offer of the most favorable terms. "Merchandise" and "commodity" are similar enough in meaning to be interchangeable: "merchandise" is defined as each commodity bought and sold by merchants, while "commodity" is defined as any movable or tangible thing used in commerce as the subject of trade or barter. "Produce" as a noun means articles produced or grown from or on the soil. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 551 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices
      When Pohnpei arbitrarily set the $1 a pound price for the purchase of pepper from the pepper farmers, a price that bore no relation to the world market price, it created a market condition with which Island Traders could not compete and was not able to purchase the raw pepper it required for its operations. Pohnpei thus prevented competition in the purchase of produce, and by preventing Island Traders from acquiring raw pepper for processing, Pohnpei also prevented competition in the manufacture of merchandise; the merchandise being the finished, processed pepper. Viewed in either light, Pohnpei violated 32 F.S.M.C. 302(3). AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 551-52 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices
     It is unlawful for a person to fix the price of a commodity. This prohibition against fixing the price charged for goods, merchandise, machinery, supplies, or commodities is directed toward sale, and not the purchase, of goods and does not apply when the facts do not involve selling of raw pepper, but conduct in purchasing raw pepper at an anticompetitive price. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 552 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices
     Under 32 F.S.M.C. 302(2), it is illegal for one or more persons to create or use an existing combination of capital, skill, or acts the effect of which is to limit or reduce the production, or increase the price of, merchandise or any commodity. "Production" means that which is made; i.e. goods, or the fruit of labor, as the productions of the earth, comprehending all vegetables and fruits. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 552 (Pon. 2004).
 
Commerce; Environmental Protection; Torts ) Anticompetitive Practices
     When Pohnpei’s refusal to hold a trochus harvest allegedly stemmed from environmental concerns, but all of the reports addressing this issue recommended that a trochus harvest be held and the concern was not that there would be too little trochus, but that there would be too much, nothing stood in the way of reasonable limitations on the harvest that could have harmonized both Pohnpei’s legitimate environmental concerns and the national law requirement that it not limit the production of any commodity. Failure to do so violated 32 F.S.M.C. 302(2). AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 552 (Pon. 2004).
 
Statutes of Limitation
     When no applicable limitations period is specified in the national statute under which a plaintiff has proceeded, the court will apply the most closely analogous state law limitations period so long as doing so does not frustrate or interfere with national policy. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 553 (Pon. 2004).
 
[12 FSM Intrm. 546]
 
Commerce; Torts) Anticompetitive Practices
     Anticompetitive conduct is tortious in nature. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 553 (Pon. 2004).
 
Statutes of Limitation ; Torts
     The continuing tort doctrine is well-settled law, and dictates that when there is an ongoing pattern of tortious activity where no single incident may be fairly identified as the cause of the harm suffered, then it is appropriate to regard the total effect of the conduct as actionable, and the statute of limitations does not begin to run until the conduct has ceased. In order to invoke the continuing tort doctrine, there must be continuing unlawful acts, and not merely continuing effects from a single original act. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 553 (Pon. 2004).
 
Statutes of Limitation ; Torts
      The rationale behind the principle that the statute of limitations does not begin to run on a continuing wrong until the wrong is over and done with is that the principle strikes a balance between the plaintiff’s interest in being spared having to bring successive suits, and the two distinct interests, that statutes of limitations serve. One is evidentiary ) to reduce the error rate in legal proceedings by barring litigation over claims relating to the distant past. The other is repose ) to give people the assurance that after a fixed time they can go about their business without fear of having their liberty or property taken through the legal process. When an unlawful course of conduct’s final act occurs within the statutory period, these purposes are adequately served, in balance with the plaintiff’s interest in not having to bring successive suits, by requiring the plaintiff to sue within the statutory period but letting him reach back and get damages for the entire duration of the alleged violation. Some of the evidence, at least, will be fresh. And the defendant’s uncertainty as to whether be will be sued at all will be confined to the statutory period. His uncertainty about the extent of his liability may be greater, but that is often true in litigation. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 553 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
      Loss of future profits is a well-established basis for determining the measure of economic injury resulting from an anticompetitive act which forces the victim out of business. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 554, 555 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     In unfair trade practices cases, courts draw a distinction between the amount of proof necessary to show that some damages resulted from the wrong, and the amount of proof necessary to calculate the exact amount of the damages. A lower burden of proof applies because the most elementary conception of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 554 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
      In anticompetitive practices cases where causation is established, the burden of proving damages is much less severe. This rule of leniency with regard to proof of damages is necessary because any other rule would enable the wrong-doer to profit by his wrongdoing at his victim’s expense. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Once the fact of damage is established with reasonable certainty, the amount of damages need only be shown with as much certainty as the tort’s nature and the case’s circumstances permit. In such cases, if it is uncertain and speculative and whether damages have been incurred, then damages will be denied; however, if it is only the amount of the damages that presents the uncertainty, then the court will allow recovery so long as there is proof of a reasonable basis from which the amount can be approximated or inferred. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 554 (Pon. 2004).
 
[12 FSM Intrm. 547]
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     When there is no doubt about the violation of 32 F.S.M.C. 302(2), but when there is nothing of record to establish that even if a trochus harvest had been held after 1994, the plaintiff would have been successful in purchasing enough trochus so that it would have had an adequate source of supply for its button operation, the plaintiff has failed to establish that it was damaged by the defendant’s conduct as proscribed 32 F.S.M.C. 302(2). Since that conduct was tortious in nature, the plaintiff is entitled only to nominal damages. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 555 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     Damages under 32 F.S.M.C. 306(2) are subject to trebling. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 555, 556 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     Averaging three years of normal operations when the pepper supply was continuous when the manufacturing process was uninterrupted to arrive at an annual profit, is a projection that provides a reasonable basis from which a plaintiff’s lost profits can be approximated or inferred under the lower burden of proof applicable for damages in anticompetitive practices cases. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 555 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     When the conduct’s nature was discrete and specific, and would have been amenable to injunctive relief had the plaintiff sought it, once that relief had been awarded there could have been no prospective damages since the conduct giving rise to those damages would necessarily have ceased. There should be no recovery for further diminution of a business’s value, predicated on the defendant’s continuing wrongdoing, after the defendant has been enjoined. The court will thus not award prospective damages from the time of the lawsuit’s filing onward because injunctive relief, to which the claim would have been amenable, would have terminated the conduct complained of. But since under the continuing tort doctrine, a plaintiff is entitled to recover all of the damages that result from on-going tortious conduct, even though the inception of the conduct lies outside the limitations period, the court will award damages from the start of the anticompetitive pepper processing operation in mid-1995 until the plaintiff filed suit. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 555-56 (Pon. 2004).
 
Commerce; Torts ) Anticompetitive Practices; Torts ) Damages
     When claims of damages for sums the plaintiff owed to third parties on the theory that since its business operations were destroyed by the defendant’s conduct, it cannot pay back those amounts, would have depended for their repayment on profits that the operation would have made but for the defendant’s conduct. Since future profits are the measure of the business’s damages, to allow a separate recovery for these sums would be to permit a double recovery. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 556 (Pon. 2004).
 
Evidence ) Expert Opinion
     An economist, who holds a master’s degree in economics, is qualified as an expert by knowledge, skill, experience, training, or education under FSM Evidence Rule 702, since his expert testimony, if admissible, will assist the trier of fact to understand the evidence or to determine the economic damages in issue. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 556-57 (Pon. 2004).
 
Civil Procedure ) Depositions
     Unless it appears that the witness’s absence was procured by the party offering the deposition, a deposition of a witness, whether or not a party, may be used by any party for any purpose, if the court finds that the witness is off of the island at which the trial or hearing is being held. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 557 (Pon. 2004).
 
[12 FSM Intrm. 548]

* * * *

COURT’S OPINION

MARTIN YINUG, Associate Justice:

     Trial in this matter was held on October 20-22, 2003. These findings of fact and conclusions of law are issued pursuant to FSM Civil Rule 52(a). A judgment in compliance with FSM Civil Rule 58 also issues herewith.

Findings of Fact

1. AHPW, Inc., is a corporation established under the laws of the Federated States of Micronesia. It was licensed to carry out two business activities, processing and marketing black pepper, and manufacturing trochus shell buttons from trochus shells. AHPW’s pepper business operated under the trade name Island Traders, while the button business used the name AHPW.

2. In order to produce a marketable product, Island Traders required mature pepper berries. Island Traders would not purchase pepper from Pohnpei pepper farmers that did not meet its quality standards.

3. In response to Pohnpei pepper farmers’ complaints that Island Traders was not purchasing all of their pepper, the state of Pohnpei, using money appropriated for that purpose by the legislature, established a pepper processing facility in Pohnpei that began operating in 1995. To supply raw pepper for the facility, it used Pohnpei state funds to buy pepper from Pohnpei pepper farmers. It began purchasing pepper in mid-1995.

4. Pohnpei paid the Pohnpei pepper farmers $1.00 a pound, which was ten cents more per pound than the price paid by Island Traders. It arrived at this price without regard to the world market price of pepper or the sustainability of the pepper processing facility as a profit-making venture. The state of Pohnpei also purchased all of the pepper offered to it, including immature berries and stems. Pohnpei’s pepper processing facility, which was never intended to be a self-sustaining, profit-making operation, ultimately failed and went out of business.

5. In order to make a profit and stay in business, the maximum amount that Island Traders could pay per pound of pepper was 90 cents. Because Pohnpei was offering ten cents more per pound than was Island Traders, and because Pohnpei was purchasing all pepper offered to it regardless of quality, the Pohnpei pepper farmers began selling all of their pepper to the state.

6. Island Traders repeatedly communicated its concerns to Pohnpei state about its loss of pepper supply, but Pohnpei did not change its pattern of purchasing pepper from the pepper farmers at ten cents a pound more than the price offered by Island Traders.As a direct result of Pohnpei’s intervention in the Pohnpei pepper market, Island Traders was deprived of its source of supply for its pepper processing operation. In an attempt to remain in operation, Island Traders purchased the finished product from Pohnpei’s plant and reprocessed it to meet its own quality standards, but the amount that it could recover was too low to make a profit, and it discontinued this practice. In June of 1998, Island Traders discharged its workers and closed its doors.

7. To set up its button making factory in Pohnpei, AHPW imported button making machinery from Italy. When it was in full operation, it employed approximately twenty people. AHPW began to

[12 FSM Intrm. 549]

manufacture shell buttons in 1985, and a steady, reliable supply of trochus shell was an on-going concern. During the times when AHPW had no trochus shell to process, Island Traders "carried" AHPW by paying various expenses of AHPW, including rent, taxes, salaries, and loan payments. AHPW sold all of the trochus products it manufactured to foreign buyers. The button business made a profit in one year.

8. Whether or not to hold a trochus harvest is a decision made exclusively by the state of Pohnpei. From 1969 to 1994, a trochus harvest was held except for the years 1971, 1974, 1980, 1983, 1985, 1987, 1989, and 1993. The average harvest for this entire period, including the years for which no harvest was held, was 77 metric tons. To have adequate trochus to supply its button factory, AHPW required 60 metric tons of trochus annually. From 1969 to 1994, there was never more than one year in which a harvest was skipped, which is to say that there were never more than two years in a row in which there was no harvest. After 1994, however, the next harvest was not until 1999, at which time AHPW had gone out of business.

9. During the early nineties when trochus harvests were held, AHPW was not able to purchase all of the trochus that it required. The procedure in place was for AHPW to wait for the individual fishermen to bring their shells to AHPW for purchase. All the buyers offered the same price. Whether AHPW got enough trochus depended on the subjective choice of the harvesters to bring their shells to AHPW.

10. Starting in 1995 and thereafter, Pohnpei made repeated representations to AHPW that it would hold an annual trochus harvest. One such example was an April 21, 1997, letter of commitment from Pohnpei to AHPW (plaintiff’s exhibit 133), which states that in the early part of each year Pohnpei would conduct a reef survey to determine the then existing trochus population, and that the total allowable catch would then be determined from that number. The letter states that AHPW would be issued a permit to purchase up to 60 metric tons of trochus shell, unless the total allowable catch was less, in which event AHPW would adjust its production to the lesser amount. According to the letter, the price to be paid was to be negotiated between AHPW and Pohnpei prior to the harvest. AHPW relied on Pohnpei’s representations, and continued in operation until 1998, when it ceased doing business.

11. The trochus reports and surveys for the years 1995 through 2000 admitted into evidence as plaintiff’s exhibit no. 104(A-F) were as follows:

A. Distribution Survey Concerning a [sic] Opening of Fishing Day on Trochus. N[iloticus] in 1995, prepared by the Lenger Shellfish Hatchery Project;

B. Distribution Survey Concerning a [sic] Opening of Fishing Day on Trochus. Niloticus in 1996, prepared by the Lenger Shellfish Hatchery Project;

C. Brief Report on Trochus Stock at Pohnpei Island in 1997, prepared for the Department of Resource Management and Development Pohnpei State by Pohnpei Inshore Resources Management Project;

D. Brief Report on Trochus Resources at Pohnpei Island in 1998, prepared for Department of Resource Management and Development Pohnpei State by Pohnpei Inshore Resources Management Project;

E. Brief Report on Trochus Resources at Pohnpei Island in 1999, prepared for Department of Resource Management and Development Pohnpei State by the Office of Marine &

[12 FSM Intrm. 550]

Coastal Resources Management; and

F. Stock Survey Report on Trochus Niloticus in Pohnpei 2000, prepared for Department of Resource Management and Development, Pohnpei State by the Office of Marine & Coastal Resources Management, August 2000.

     The 1995 report states at unnumbered page 3 that "the present density may be able to lead [to] an abundant harvest in 1995 after due consideration [of] the natural reproduction in future." The rest of the reports expressly recommended that a harvest be held subject to limitations on duration of the harvest and shell size.

12. The last trochus harvest was held in July, 1994. Pohnpei did not declare a trochus harvest thereafter because of concerns that there would be too much trochus harvested, and that the state would not be able to buy it all. When the trochus harvests stopped, AHPW could no longer make commitments to its customers, because it did not have the assurance that it would have a source of supply for trochus shell. Because it could not make commitments, it lost customers. AHPW closed its trochus shell button operation in 1998.

13. To fund operations, AHPW borrowed from the Federated States of Micronesia Development Bank. Of the three loans made, two were paid off while in excess of $300,000 remains unpaid on the third. The loans to AHPW were approved by the Federal Development Authority in 1993. The money lent was from the Pohnpei state sub-account of the Investment Development Fund (IDF). Pohnpei supported AHPW’s application for the loans. AHPW also borrowed on an on-going basis from one of its owners, Patricia B. Arthur, from the time of the corporation’s inception until 1998. These loans total approximately $634,000, none of which has been repaid.

14. AHPW’s accountant, Mr. George Kim, prepared profit projections for AHPW. He prepared three separate projections, one for the pepper operation, one for the trochus operation, and one for both operations combined. For the pepper business, Mr. Kim’s projections were based on a history of being very profitable over nine or ten years. For this projection, he chose three normal years operations, where pepper supply was continuous, and where the manufacturing process was uninterrupted. The average, net profit for those three normal, profitable years was $56,362 annually. For button operation, there was only one year where there was a profit. Mr. Kim used the one profitable year as the basis for his projection for the button business.

Conclusions of Law

1. In buying pepper from Pohnpei’s pepper farmers at a price greater than the market price, Pohnpei prevented competition in the manufacture of a commodity, in this case processed pepper, as proscribed by 32 F.S.M.C. 302(3).

2. As a result of Pohnpei’s violation of the statute, AHPW was damaged in the amount of $225,448. Under 32 F.S.M.C. 306(2), "the person who is injured in his business . . . may recover three times the damages sustained by him together with a reasonable attorney’s fee and the costs of suit." Accordingly, the total awarded to AHPW is $676,344 (3 X $225,448). AHPW is also awarded its costs of suit, and may also apply for its attorney’s fees.

3. In buying pepper from Pohnpei farmers at a price greater than the market price, Pohnpei did not violate 32 F.S.M.C. 303. That section applies to certain types of sales, and not purchases. At issue here was Pohnpei’s practice of buying pepper from Pohnpei farmers at a subsidized price, not that of selling it.

[12 FSM Intrm. 551] 

4. In failing to declare a trochus harvest without a valid reason for doing so, Pohnpei limited the production of merchandise or a commodity in violation of 32 F.S.M.C. 302(2). The failure to declare a trochus harvest resulted in the limitation of the production of trochus shell buttons, which is merchandise or a commodity within the meaning of the statute.

5. There was no causal link between Pohnpei’s violation of 32 F.S.M.C. 302(2) and damage to AHPW’s trochus shell button business sufficient to sustain an award of compensatory damages.

Discussion

     The orders of September 29, 2003 [AHPW, Inc. v. FSM, 12 FSM Intrm. 114 (Pon. 2003)], and October 10, 2003 [AHPW, Inc. v. FSM, 12 FSM Intrm. 164 (Pon. 2003)], dismissed certain of the claims alleged in the complaint. Remaining for trial were AHPW’s national and state constitutional claims against Pohnpei based on the pepper allegations (count I of its first cause of action); AHPW’s anticompetitive practices claim against Pohnpei under 32 F.S.M.C. 301 et seq. based on the pepper allegations (count III of its first cause of action); AHPW’s national and state constitutional claims against Pohnpei based on its trochus allegations (count I of its second cause of action); and AHPW’s anticompetitive practices claims against Pohnpei under 32 F.S.M.C. 301 et seq. based on its trochus allegations (count III of its second cause of action). Because the court disposes of both the pepper and trochus claims on statutory grounds, it will not ) because it should not ) reach the constitutional claims. FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987) (holding that a court should not reach constitutional questions where "a dispute properly may be resolved on statutory grounds without reaching potential constitutional issues and without disserving constitutional principles"). The court awards relief pursuant to statute on the pepper claims, and the court will not reach the constitutional pepper claims on that basis. Since the same conduct by Pohnpei supports both AHPW’s statutory and constitutional trochus claims, and since the court further finds that AHPW did not show that it sustained damage to its trochus operation as a result of Pohnpei’s statutory violation, the court will not reach the constitutional trochus claims.

A. Count III of the first cause of action: the anticompetitive practices claim based on the pepper allegations

     Section 302(3) of Title 32 of the FSM Code provides in pertinent part that "[i]t is illegal for one or more persons to create or use an existing combination of capital, skill, or acts the effect of which is: . . . (3) to prevent competition in the manufacture, making, transportation, sale, or purchase of any merchandise, produce, or commodity." This court previously found that Pohnpei is a "person" for purposes of this statute. AHPW, Inc. v. FSM, 9 FSM Intrm. 301, 305 (Pon. 2000). "Competition" means "the effort of two or more parties, acting independently, to secure the business of a third party by the offer of the most favorable terms. Black’s Law Dictionary 284 (6th ed. 1990). "Merchandise" and "commodity" are similar enough in meaning to be interchangeable: "merchandise" has been defined as each commodity bought and sold by merchants, Landis v. Zoning Bd. of Adjustment, 198 A.2d 574, 577 (Pa. 1964), while "commodity" is defined as any movable or tangible thing used in commerce as the subject of trade or barter. Rohrer v. Traina, 342 N.E.2d 390, 392 (Ill. App. Ct. 1976). "Produce" as a noun means "articles produced or grown from or on the soil."

     It was Pohnpei’s practice to purchase all the pepper offered to it for sale regardless of quality. Its pepper processing operation was not meant to be a self-sustaining, profit making operation, but rather was dependent upon the Pohnpei state subsidy. When Pohnpei arbitrarily set the $1.00 a pound price for the purchase of pepper from the pepper farmers, a price that bore no relation to the world market price, it created a market condition with which Island Traders could not compete. Island Traders was not able to purchase the raw pepper it required for its operations, and thus in the words of the

[12 FSM Intrm. 552]

statute, Pohnpei "prevent[ed] competition in the . . . purchase of . . . produce." Further, by preventing Island Traders from acquiring raw pepper for processing, Pohnpei also "prevent[ed] competition in the manufacture . . . of . . . merchandise," the merchandise being the finished, processed pepper. Viewed in either light, Pohnpei violated 32 F.S.M.C. 302(3).

     As part of its claim under count III of its first cause of action, AHPW has also pled a violation of 32 F.S.M.C. 303, which makes it unlawful for a person to fix the price of a commodity. However, that section specifically addresses "fix[ing]" the price "charged" for "goods, merchandise, machinery, supplies, or commodities." The tenor of this provision is directed toward sale, and not the purchase, of goods. The facts of this case do not involve Pohnpei’s selling of raw pepper, but its conduct in purchasing raw pepper at a price with which Island Traders could not compete. Thus, 32. F.S.M.C. 303 does not apply. Pohnpei did not violate that statutory provision.

B. Count III of the second cause of action: the anticompetitive practices claim based on the trochus allegations

     AHPW’s claim for damage to its trochus button business is based on 32 F.S.M.C. 302(2), which provides that "[i]t is illegal for one or more persons to create or use an existing combination of capital, skill, or acts the effect of which is: . . . (2) to limit or reduce the production, or increase the price of, merchandise or any commodity." "Production" means "that which is made; i.e. goods," or the "[f]ruit of labor, as the productions of the earth, comprehending all vegetables and fruits." Black’s Law Dictionary 1209 (6th ed. 1990). The trochus in this case were self-propagating, and not made or fabricated. It is collected or taken in the same way that fish are ) the trochus in question was not the product of aquaculture. However, it could only be harvested if Pohnpei declared a trochus harvest, and Pohnpei’s failure to do so resulted in limiting or reducing the production of trochus shell buttons, which are both a "commodity" and "merchandise" in the way those terms are used in the statute.

     Pohnpei contends that its refusal to hold a trochus harvest stemmed from environmental concerns. Yet all of the reports addressing this issue that were admitted into evidence recommended that a trochus harvest be held. Indeed, the reason that one was not held, as Governor David testified (Trial Tape IV, Oct. 20, 2003, counters 172-74), was "because we could not buy all the trochus that Pohnpeians would harvest." Thus the concern was not that there would be too little trochus, but that there would be too much. Based on the evidence presented, however, nothing stood in the way of reasonable limitations on the harvest that could have harmonized both Pohnpei’s legitimate environmental concerns and the requirement under national law that Pohnpei not limit the production of any commodity.

     Accordingly, Pohnpei violated 32 F.S.M.C. 302(2) when it failed to hold a trochus harvest after 1994 and until 1998, when AHPW’s button business closed its doors.

C. Statute of limitations

     In the pretrial order of September 29, 2003, this court indicated that it would reconsider Pohnpei’s statute of limitations defense after trial. Pohnpei claims that AHPW’s cause of action "should have started accruing" in 1993, when it first started losing profits. Motion to Dismiss [] at 6 (July 23, 2003). This would have been even before the last trochus harvest was declared in 1994, and before Pohnpei established its pepper processing plant in mid-1995. By Pohnpei’s reasoning, the two year statute of limitations applicable to this case would have run in 1995, well before 1999, when this case was filed. In response, AHPW contends, as it has all along, that its cause of action did not accrue until 1998, when both the pepper processing and button operations ceased doing business. Thus, given AHPW’s view of the law and the fact, its 1999 lawsuit was well within the statutory period.

[12 FSM Intrm. 553]

     Both parties have proceeded on the basis that under Pohnpei State Law No. 2L-192-91, the applicable statute of limitations is two years. No applicable limitations period is specified in the national statute under which AHPW has proceeded, and in such a case the court will apply the most closely analogous state law limitations period so long as doing so does not frustrate or interfere with national policy. Occidental Life Ins. Co. v. Equal Employment Opportunity Comm’n, 432 U.S. 355, 367, 97 S. Ct. 2447, 2455, 53 L. Ed. 2d 402, 412 (1977). The national policy question was neither raised nor briefed by the parties, but in any event the only possible alternative under national law would be a longer, not a shorter, limitations period. 6 F.S.M.C. 805. Additionally, the court need not address the national policy question because it finds, as discussed further below, that this suit was filed within the two-year period assumed by the parties.

     The U.S. Supreme Court has noted that antitrust violations are tortious in character. Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 634, 636 n.5, 101 S. Ct. 2061, 2064 n.5, 68 L. Ed. 2d 500, 505 n.5 (1981). Similarly, the anticompetitive conduct at issue in this case, which continued over a period of years, is also tortious in nature. The continuing tort doctrine is "well-settled" law, and dictates that when there is an ongoing pattern of tortious activity where no single incident may be fairly identified as the cause of the harm suffered, then it is appropriate to regard the total effect of the conduct as actionable, and the statute of limitations does not begin to run until the conduct has ceased. Page v. United States, 729 F.2d 818, 821-23 (D.C. Cir. 1984) (holding that statute of limitations for a claim of tortious administration of a drug over a period of at least eight years did not begin to run until the treatment terminated). In order to invoke the continuing tort doctrine, there must be continuing unlawful acts, and not merely continuing effects from a single original act. Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981). In Taylor v. Meirick, 712 F.2d 1112, 1118-19 (7th Cir. 1983) the court held that copyright infringement was a continuing wrong and that the holder of the copyright could sue for damages resulting from sales that occurred more than three years, which was the limitations period, before he brought suit. The rationale behind "the principle that the statute of limitations does not begin to run on a continuing wrong until the wrong is over and done with" is that

[t]he principle strikes a balance between the plaintiff’s interest in being spared having to bring successive suits, and the two distinct interests, that statutes of limitations serve. One is evidentiary ) to reduce the error rate in legal proceedings by barring litigation over claims relating to the distant past. The other is repose ) to give people the assurance that after a fixed time they can go about their business without fear of having their liberty or property taken through the legal process. Apart from the harmful effect of uncertainty on planning, it is more painful to lose what you have come to think of as your own than it is gratifying to get back something you wrote off many years ago and have grown accustomed to doing without. When the final act of an unlawful course of conduct occurs within the statutory period, these purposes are adequately served, in balance with the plaintiff’s interest in not having to bring successive suits, by requiring the plaintiff to sue within the statutory period but letting him reach back and get damages for the entire duration of the alleged violation. Some of the evidence, at least, will be fresh. And the defendant’s uncertainty as to whether be will be sued at all will be confined to the statutory period. His uncertainty about the extent of his liability may be greater, but that is often true in litigation.

Id. at 1118-19 (citations omitted).

     The continuing tort principle applies in this case. With respect to the pepper operation, Pohnpei’s practice of buying pepper from farmers at a subsidized price with which AHPW could not compete began in 1995, and continued through 1998 when the pepper operation ceased doing business. With regard to the button business, Pohnpei held a trochus harvest in 1994, but held no further harvests

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thereafter even though the reports in its possession recommended a harvest, and even though AHPW repeatedly made requests that a harvest be held. In the April 21, 1997, letter of commitment from Pohnpei to AHPW, which was admitted into evidence as plaintiff’s exhibit 133, Pohnpei stated that in the early part of each year Pohnpei would conduct a reef survey to determine the then existing trochus population, and that the total allowable catch would then be determined from that number. "The early part of each year" when placed in the context of the April 21, 1997, letter, refers to the next year, 1998, but no trochus harvest was held then. The failure to do so constituted a continuation of tortious conduct for purposes of the statute of limitation. The instant case was filed on August 26, 1999, or well within two years from a time when Pohnpei’s tortious conduct was ongoing. Thus, the two year statute of limitations under Pohnpei state law does not foreclose the instant lawsuit.

D. Damages

     AHPW seeks loss of future profits as its damages in this case. "Loss of future profits is a well-established basis for determining the measure of economic injury resulting from an anticompetitive act which forces the victim out of business." Construction Aggregate Transp., Inc. v. Florida Rock Indus., Inc., 710 F.2d 752, 786 (11th Cir. 1983). Further, in unfair trade practices cases, courts draw a distinction between the amount of proof necessary to show that some damages resulted from the wrong, and the amount of proof necessary to calculate the exact amount of the damages. Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 745 (7th Cir. 1985). A lower burden of proof applies because "[t]he most elementary conception of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Id. (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S. Ct. 574, 580, 10 L. Ed. 652, 660 (1946)). Bigelow was a suit for damages under the Sherman Antitrust Act. 327 U.S. at 263, 66 S. Ct. at 579, 90 L. Ed. at 660. As the Construction Aggregate court noted, where

causation is established, the burden of proving damages is much less severe. This rule of leniency with regard to proof of damages is necessary because: "[a]ny other rule would enable the wrong-doer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain."

710 F.2d at 785-86 (citation omitted) (also quoting Bigelow, 327 U.S. at 264, 66 S. Ct. at 580, 90 L. Ed. at 660). "Once the fact of damage is established with reasonable certainty, the amount of damages need only be shown with as much certainty as the nature of the tort and the circumstances of the case permit." 4 Rudolf Callman, The Law of Unfair Competition, Trademarks and Monopolies, § 22.50 (1997) (footnotes omitted). In such cases, if it is uncertain and speculative and whether damages have been incurred, then damages will be denied; however, if it is only the amount of the damages that presents the uncertainty, then the court will allow recovery so long as there is proof of a reasonable basis from which the amount can be approximated or inferred. Pioneer Hi-Bred Int’l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1245 (8th Cir. 1994).

     Island Traders has established that its pepper operation was damaged as a direct result of Pohnpei’s violation of 32 F.S.M.C. 302(3). As a result of Pohnpei’s practice of purchasing pepper from local farmers at an artificially high, subsidized price, Island Traders was deprived of its source of raw pepper, and was forced out of business.

     Damage to AHPW’s button business as a result of Pohnpei’s violation of 32 F.S.M.C. 302(2) is less clear. There is no doubt about the violation itself. Nor is there doubt that after 1994, Pohnpei’s violation of the statute by failing to hold a trochus harvest without any justifiable reason for doing so precluded even the possibility of the production of a commodity, i.e., trochus shell buttons. However,

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in 1990, 1991, and 1992, when there were harvests held, AHPW was still unable to obtain a sufficient amount of trochus shell to operate its factory, because the individual trochus fisherman chose to sell the catch to other buyers. Robert C. Arthur, president of AHPW, testified that the decision by the individual trochus harvesters as to whom they were going to sell their harvest amounted to a popularity contest among the potential purchasers. Thus there is nothing of record to establish that even if a trochus harvest had been held after 1994, AHPW would have been successful in purchasing enough from the trochus harvesters so that it would have had an adequate source of supply for its button operation. Even after the issuance of the April 21, 1997 commitment letter, this is not clear. The letter states that AHPW would be issued a permit to buy 60 metric tons, or a lesser amount if the total allowable catch was less, and that the price would be negotiated by AHPW and the Pohnpei Department of Resource Management and Development prior to the annual harvest. The established practice was that the price would be the same for all purchasers. However, this letter does not commit Pohnpei to guarantee that AHPW would be successful in purchasing the requisite amount of trochus, but only that a harvest would be held, and that it would be issued a permit to purchase 60 metric tons. The letter does nothing to change the established way that the harvest was sold. Whether or not AHPW could have obtained a sufficient amount of trochus would still have depended on the individual decisions of the trochus harvesters as to whom they were going to sell their catches. Considering the evidence as a whole, there is an insufficient connection between Pohnpei’s violation of the statute and AHPW’s inability to purchase the amount of trochus it required. Thus, AHPW has failed to establish that it was damaged by Pohnpei’s conduct as proscribed 32 F.S.M.C. 302(2). That conduct was tortious in nature, Texas Indus., 451 U.S. at 636 n.5, 101 S. Ct. at 2064 n.5, 68 L. Ed. 2d at 505 n. 5, and in such a case the plaintiff is entitled only to nominal damages. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998). Accordingly, for violation of this statutory tort the court awards damages of $10. This amount is subject to trebling under 32 F.S.M.C. 306(2), for total damages of $30 on the claim under count III of the second cause of action of the complaint.

     Next is the question of the amount of damages on the pepper claim. As previously noted, loss of future profits is "a well-established basis for determining the measure of economic injury resulting from an anticompetitive act which forces the victim out of business." Construction Aggregate, 710 F.2d at 786 (11th Cir. 1983). Admitted into evidence were the profit projections for the pepper operation prepared by AHPW’s accountant George Kim, CPA. Mr. Kim’s projections were based on the fact that the pepper business had been very profitable over a period of nine to ten years. He chose three years of normal operations, when pepper supply was continuous, and when the manufacturing process was uninterrupted. He averaged these, and arrived at an annual profit of $56,362. This projection provides a reasonable basis from which Island Trader’s lost profits can be approximated or inferred. Pioneer Hi-Bred Int’l, 35 F.3d at 1245. This figure, and the foundational testimony provided for it by Mr. Kim, more than meets the lower burden of proof applicable under Otis Clapp.

     AHPW contends that its pepper business was a viable entity that could have had a continued successful existence for many years. It asks the court to award damages for a period of fifteen years, which is the period for which profit projections were offered. In considering this question, the court must consider, the "nature of the tort and circumstances of the case." 4 Callman, supra, § 22.50. A relevant circumstance is that AHPW’s pepper claim resulted from Pohnpei’s ongoing, unlawful conduct. If Pohnpei had stopped subsidizing the purchase of pepper with state money at an artificially high price, AHPW would have had access to a source of raw pepper and could have continued its business. Thus the nature of the conduct was discrete and specific, and in this respect AHPW’s pepper claim would have been amenable to injunctive relief, had AHPW sought it. Once that relief had been awarded, there could have been no prospective damages, since the conduct giving rise to those damages would necessarily have ceased. "[T]here should be no recovery for further diminution of the value of the business, predicated on continuing wrongdoing by the defendant, after the defendant has been enjoined." 4 Callman, supra, § 22.50. Since AHPW has sought sizable damages for the loss of

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its business extending years into the future, its damages calculations are necessarily based on the assumption that Pohnpei’s unlawful conduct would have continued indefinitely into the future. The projection based on this assumption results in a damages amount that is larger than the "nature of the tort and the circumstances of the case" support." Id.

     Under the continuing tort doctrine, the plaintiff is entitled to recover all of the damages that result from on-going tortious conduct, even though the inception of the conduct lies outside the limitations period. In arriving at a damages amount, the court will consider this principle, together with the two just discussed. It will treat the loss of future profits as those that AHPW incurred from the time that Pohnpei established its pepper operation until the suit was filed ) these profits were "future" to the extent that they were forward-looking from the time of the start of the unlawful conduct until suit was filed. The court will not award prospective damages from the time of the filing of the lawsuit onward because injunctive relief, to which the pepper claim would have been amenable, would have terminated the conduct complained of. Thus the court awards damages based on Mr. Kim’s projections for a period of four years, from the start of Pohnpei’s pepper processing operation in mid-1995 until AHPW filed suit in August of 1999. Pohnpei’s processing plant was in operation during this period, the pepper operation was affected by Pohnpei’s violation of the statute during this period, and AHPW also made continuing efforts to bring to Pohnpei’s attention the nature and extent of its problem. It was reasonable for AHPW to wait until 1999 to bring this action.

     Accordingly, the court awards damages on the pepper claim of $225,448 ($56,362 X 4 = $225,448). This amount is subject to trebling under 32 F.S.M.C. 306(2), for a total of $676,344. AHPW is also entitled to an award of attorney’s fees and may apply therefor.

     Two final points bear making on the question of damages. First, AHPW also claims damages for sums owed by it to third parties on the theory that since its business operations were destroyed by Pohnpei’s conduct, it cannot pay back those amounts. However, these sums would have depended for their repayment on profits that the pepper operation would have made but for Pohnpei’s conduct. Since future profits as defined and limited herein are the measure of the pepper business’s damages, to allow a separate recovery for these sums would be to permit a double recovery. The same considerations that limit the lost profits to four years also limit the recovery of these other sums. The claim for the additional amounts is accordingly denied.

     Second, Mr. Kim’s profit projections for the button business were based on the single profitable year that it had during its existence from 1985 until it closed its doors in 1998, even though trochus harvests were held in six out of those years. Thus it remains an open question whether the foundation for AHPW’s profit projections for the button operation could meet the lower burden of proof under Otis Clapp with respect to the damages amount even if it had established that Pohnpei’s violation of the statute directly caused the destruction of its button business.

E. The Koskella deposition

     There remains the question of the admission into evidence of the deposition testimony of Richard T. Koskella, which was taken in Dallas, Texas, on April 14, 2003. At the time of the taking of the deposition, AHPW’s counsel was present in Texas along with Mr. Koskella, while Pohnpei’s counsel was present telephonically and asked questions of Mr. Koskella on cross-examination. Pohnpei had previously stipulated on March 21, 2003, to the time, place, and manner of taking the deposition. Mr. Koskella is an economist whose testimony is offered as that of an expert under FSM Rule of Evidence 702, which provides that expert testimony is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue" and if the expert is "qualified as an expert by knowledge, skill, experience, training, or education." The court finds that Mr. Koskella, who holds a master’s

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degree in economics, is so qualified. Pohnpei has objected to the admission of Mr. Koskella’s deposition on a number of grounds, but all rest on the contention that Mr. Koskella should have been physically present at the trial.

     Rule 32a(3) of the FSM Rules of Civil Procedure provides in part that a

deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (B) that the witness is off of the island at which the trial or hearing is being held, unless it appears that the absence of the witness was procured by the party offering the deposition.

     FSM Civ. R. 32(a)(3)(B) (emphasis added). Mr. Koskella was off of the island of Pohnpei at the time his deposition was taken, and there was no showing that his absence from the island was procured by AHPW. Accordingly, Mr. Koskella’s deposition is admitted.

Conclusion

     The clerk is directed to enter judgment in favor of AHPW and against Pohnpei in the amount of $676,374 ($676,344 + $30), plus costs. Judgment issues herewith. AHPW may submit a statement of attorney’s fees and costs.

     As a final administrative matter, the following trial exhibits were destroyed when part of the court’s office roof was lost to typhoon Sudal. The court’s findings of facts had largely been completed before the destruction of the exhibits. AHPW is requested to submit new copies of the following to the court within ten days of the entry of these findings of fact and conclusions of law. All of these exhibits were admitted into evidence, and the clerk will so mark them in accordance with the list attached to the evidence envelope, which was preserved. The destroyed exhibits are:

Exhibit 2, letter dated January 4, 1988
Exhibit 7, letter dated April 27, 1989
Exhibit 10, letter dated May 22, 1990
Exhibit 19, letter dated August 2, 1993
Exhibit 35, letter dated December 31, 1996
Exhibit 36, letter dated January 15, 1997
Exhibit 38, letter dated March 7, 1997
Exhibit 42, letter dated February 2, 1998
Exhibit 47, letter dated May 7, 1998
Exhibit 101, facts about Pohnpei pepper production
Exhibit 102, trochus harvest in Pohnpei, 1969-1995
Exhibit 136, letter dated September 7, 1997
Exhibit 143, letter dated March 16, 1998
Exhibit 171, corporate resolution to borrow
Exhibit 172, FSMDB chattel mortgage

     The destruction on Yap caused by the typhoon delayed the issuance of the decision in this matter.

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