ORDER ON DEFENDANTS' REQUEST FOR SINGLE ENTITY INSTRUCTION; DISPUTED INSTRUCTION ON COOPERATING WITNESSES

PHYLLIS J. HAMILTON, District Judge.

Defendants request an instruction that members of the same "economic unit" cannot conspire with each other to rig bids under the single entity doctrine announced in Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 771 (1984), which held that parent and subsidiary corporations share a unity of interest and are therefore incapable of conspiring with each other under § 1 of the Sherman Act. Doc. no. 311. The government opposes defendants' proposed instruction on the ground that it would confuse the jury by suggesting that defendants cannot be part of the same conspiracy if they worked at the same company, even if the conspiracy included competitors. Doc. no. 314. The government also objects to instructing the jury on finding that defendants were members of the same "economic unit" and "shared a unity of economic interest" to apply the Copperweld rule, for failing to define those terms clearly and permitting the jury to find that all the conspirators shared a commonality of interest. Because the instruction proposed by the defense risks jury confusion, the court denies defendants' request to give their specific proposed instruction.

The government concedes that the jury should understand that they should acquit defendants on Copperweld grounds if they conclude that the alleged conspiracy included only Al Florida's company and no one else. The government's proposed modification to the instruction on knowledge of and association with other conspirators, is not, however, much clearer in instructing the jury that a company and its employees are not capable of conspiring with each other for purposes of § 1 of the Sherman Act. Further, the single entity instruction is better suited to modify the bid rigging instruction, which instructs the jury that a conspiracy to rig bids is an agreement to eliminate, reduce or interfere with competition. Accordingly, the court modifies the bid rigging instruction no. 3, doc. no. 317, to add the following sentence after line 15, before the bracketed portions of the model ABA instruction:

See Freeman v. San Diego Ass'n of Realtors, 322 F.3d 1133, 1147 (9th Cir. 2003) (holding that the single-entity rule applies to a company and its officers, employees and wholly owned subsidiaries; firms owned by the same person; and principal-agent relationships) (citing Copperweld); Siegel Transfer, Inc. v. Carrier Exp., Inc., 54 F.3d 1125, 1134 (3d Cir. 1995) ("In Copperweld the Court made clear that section 1 does not capture coordinated activity among the employees and officers of the same firm or police "internal agreements" between a corporation and these individuals.") (citing Copperweld, 467 U.S. at 769).

After the court instructed the parties to meet and confer on instruction no. 40 on testimony of witnesses involving special circumstances, the parties have proposed competing instructions based on Ninth Circuit model instruction 4.9. The court declines to adopt the modifications to the model instruction proposed by defendants and the language of instructions used in another case in this district involving witnesses who received different benefits from the government, including compensation and immunity, which are not at issue here. The court adopts the instruction proposed by the government, doc. no. 316, which more closely follows the Ninth Circuit model instruction which the court approved during the charging conference. The court hereby amends the instruction as proposed by the government for the final set of instructions, instruction no. 22, as follows:

IT IS SO ORDERED.