In re Chocolate Confectionary Antitrust Litigation
TABLE OF CONTENTS
I. Introduction
779
II. Prоcedural History.......................................................780
III. Summary Judgment Standard.............................................781
IV. The Evidence............................................................781
V. Analysis ............................... 785
A. General Antitrust Principles.......... 785
B. Parallel Pricing..................... 787
C. ’’Plus” Factor Evidence.............. 788
1. Motive & Market Factors......... 789
2. Behavior Against Interests........ 791
3. Traditional Evidence of Conspiracy 797
a. Canadian Conspiracy......... 797
b. Advanced Knowledge......... 801
c. Opportunities to Collude...... 803
4. Record as a Whole............... 804
VI. Conclusion 805
Presently before the court are six motions for summary judgment filed by Nestlé U.S.A., Inc. (“Nestlé”) (Docs. 1205, 1385), The Hershey Company (“Hershey”) (Docs. 1206, 1386), and Mars, Inc., and Mars Snackfood U.S. (collectively, “Mars”) (Docs. 1221, 1421).
I. Introduction
The pending summary judgment motions come before the court as part of
II. Procedural History
The Judicial Panel on Multidistrict Litigation consolidated all pretrial matters in the above-captioned action in the United States District Court for the Middle District of Pennsylvania pursuant to
III. Summary Judgment Standard
Through summary adjudication, the court may dispose of claims that do not present a “genuine issue as to any material fact” and for which a jury trial would be an empty and unnecessary formality.
Although the nature of the parties’ respective summary judgment burdens are unaltered in antitrust litigation, the Supreme Court has limited the scope of the reasonable inferences that a district court may draw from ambiguous evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
IV. The Evidence
The defendants are members of three distinct multinational corporate families which manufacture, market, sell, and distribute chocolate confectionary products in a global market. Mars, Inc. is a privately held company and worldwide producer of chocolate, headquartered in Virginia, and it is the parent company of Mars Snack-food US, LLC (“Mars U.S.”). (Doc. 1296-1 at ¶¶48, 50). Included in Mars’ brand portfolio are such iconic brands as M & Ms, Milky Way, Twix, Snickers, and Dove. {Id. at ¶ 52). Mars is also the parent company of Mars Canada, Inc., (“Mars Canada”), a wholly owned subsidiary of Mars which sells chocolate and other can
The Hershey Company (“Hershey”) is a publicly traded entity incorporated in Delaware and based in Hershey, Pennsylvania. (Id. at ¶ 87). Hershey, like Mars, manufactures and sells chocolate confectionary products along with other food and snack products. (Id. at ¶ 89). Hershey’s notable brands include Hershey’s Milk Chocolate Bar, Hershey Kisses, Reese’s Peanut Butter Cups, Mr. Goodbar, Pay Day, and Milk Duds. (Id. at ¶ 90). Mirroring Mars’ organizational hierarchy, Hershey is the parent company of Hеrshey Canada Inc. (“Hershey Canada”). (Id. at ¶ 106). Like Mars, the day-to-day operations and business strategies of the two entities are separate, but Hershey, the parent company, approves all domestic and international pricing decisions. (Id. at ¶ 92).
Finally, Nestlé U.S.A., Inc. (“Nestlé”) is a U.S.-based company wholly owned by Nestlé S.A., a company headquartered in Vevey, Switzerland. (Id. at 132). Nestlé, like its codefendants, manufactures, sells, and distributes chocolate confectionary products in the United States, with its most popular brands including Nestlé Crunch, Butterfinger, and Babe Ruth. (Id. at ¶¶ 127, 129). As with Hershey and Mars, Nestlé is a subsidiary, subject to the oversight of its corporate parent, Nestlé 5. A. (Id. at ¶ 157). Nestlé S.A. has both U.S.-based and Canada-based (“Nestlé Canada”) subsidiaries. (Id. at ¶ 162). However, distinct from its codefendants, Nestlé prices its U.S. chocolate products exclusive and independent of its parent company, Nestlé S.A.
It is undisputed that, collectively, the three defendants dominate the domestic chocolate confectionary market. The market is highly concentrated and composed of few sellers, with the three defendants controlling more than 75 percent of the market. (Id. at ¶ 356). During the years 2002 through 2007, Hershey was the largest domestic chocolate manufacturer and the domestic market share leader accounting for approximately 42 percent of all chocolate candy sales in the United States. (Id.) Mars followed with the second largest share at 28 percent of all U.S. chocolate sales, and Nestlé was the third largest producer with an average market share of 8 percent.
Defendants each manufacture a wide array of chocolate products in a variety of different package types and sizes. (Id. at ¶ 192). Their chocolate product offerings are traditionally divided into two subcategories: immediate consumption products and future consumption products. (Id.) Immediate consumption products are those sold in packaging types that consumers typically buy and consume at the time of purchase; they include single (“singles”) and king size (“kings”) bars. (Id. at ¶ 193). Future consumption products are purchased for consumption at a later date, and include bags or boxes of candy containing “bite size” or “miniature” bars. (Id. at ¶ 197). The weight of singles, kings, and future consumption packs varies
The primary ingredients in each defendant’s chocolate candy products are cocoa, sugar, dairy, peanuts, almonds, fats, and oils. (Id. at ¶ 202). It is undisputed that from 2002 through 2007, the period in which defendants allegedly conspired to raise the prices of singles and kings, the average market cost for cocoa increased by 53 percent. (Id. at ¶ 204). While plaintiffs correctly assert that defendants did not pay market price (as reflected on futures exchanges) because of hedging, plaintiffs do not and cannot dispute that the cost of cocoa, defendants’ primary raw ingredient, was on the rise. (Id. (plaintiffs conceding that average cost was on the rise but demonstrating that defendants’ costs, while increasing, were not as high as those reflected on the exchange)). Indeed, plaintiffs concede that “the futures exchange had fluctuation in prices between January 2002 and April 2007.” (Id. at ¶¶ 204-09). Defendants posit that the 2002, 2004, and 2007 price increases were motivated, in part, by rising ingredient, manufacturing, and distribution costs.
Prior to 2002, pricing patterns were inconsistent. Defendants point the court to several occasions when one manufacturer initiated a price increase and the remaining defendants followed the increase almost immediatеly. (Id. at ¶¶ 372-76). Plaintiffs concede that in January of 1979, September of 1981, January of 1986, February of 1991, and December of 1995, list price increases initiated by one defendant were almost immediately followed by the remaining defendants. (Id.) Plaintiffs observe, however, and the record supports the observation, that other price increases were marked by periods of substantial delay rather than lock step price increases. (Id.)
On December 7, 2002, Mars initiated the first of three price increases that under-gird this litigation, announcing a singles list price increase of 3.5 cents per bar. Two days later, Hershey followed with an identical increase, and on December 11, 2002, Nestlé increased its list price by 3.3 cents per bar. (Id. at ¶ 418 (Mars); ¶ 419 (Hershey); ¶ 423 (Nestlé)). The second round of increases began on November 19, 2004, when Mars announced a price increase for future consumption products only. On December 15, 2004, Hershey matched Mars’ packaged candy price and also increased the list price of singles by 2 cents, six packs by 3 cents, and kings by 3 cents. Mars matched the additional price increases on December 17, 2004, and Nestlé followed suit with nearly identical increases on December 22, 2004. (Id. at ¶ 454 (Mars initial), ¶ 460 (Hershey), ¶ 461 (Mars matching), ¶ 462 (Nestlé)). The final series of price increases was initiated by Mars on March 23, 2007, when it increased the price of singles by 2 cents per bar and kings by 3 cents per bar. On April 4, 2007, Hershey matched Mars’ price increase, and the following day, Nestlé likewise raised list prices on singles,
As an explanation for these pricing actions, defendants cite to rising production and ingredient costs and posit that the increases were determined independently of one another, in a manner consistent with each company’s best interests. Plaintiffs, on the other hand, point north to the Canadian market for a more sinister explanation of the domestic price increases. Plaintiffs assert that, during the relevant time period (2002 to 2007), the Canadian chocolate market was marked by a sophisticated trade spend conspiracy. According to record evidence, in 2002, a Canadian distribution company, ITWAL, commenced a campaign to encourage Canada’s four largest chocolate manufacturers to curb promotions and discounts. (Id. at ¶¶ 580-82). ITWAL’s efforts were apparently successful, triggering a series of secret meetings which resulted in agreements among the manufacturers to reign in trade spend discounting and to restrict competition. (Id.) As a result of these communications and conduct, the Canadian Competition Bureau criminally charged the Canadian manufacturers — three of whom share parent corporations with the domestic defendants — with conspiring to restrict competition and fix prices for chocolate products. Hershey Canada pled guilty on June 21, 2013, to a charge with respect to conduct occurring in 2007, and charges remain pending against the other defendants’ foreign affiliates.
At inception, plaintiffs’ antitrust claims relied almost exclusively on the existence of the Canadian trade spend conspiracy and its impact on the domestic chocolate market. During the course of this litigation, however, plaintiffs’ cross-border theory has evolved almost beyond recognition. In the first iteration, plaintiffs theorized that given “[t]he opportunity for arbitrage, and the fact of arbitrage, between the United States and Canada,” coordination in Canada would not have been effective in the absence of simultaneous price-fixing efforts in the United States. (Doc. 421 at ¶ 104(i)). Plаintiffs alleged broadly that the overlap of economic, operational, and managerial factors between the two markets is “so extensive” as to effectively eviscerate the border between the countries, merging the domestic and Canadian chocolate markets into a “single market.” (Id. at ¶ 104(i)). This theory quickly withered on the vine in the absence of any factual support.
Plaintiffs next posited that as a result of “significantly integrated” cross-border management, senior executives in the United States “were aware of and condoned” the conspiracy in Canada, making it “plausible” that “the same executives” conspired in the United States. (Id. at ¶¶ 28, 104(b)-(d) (“Defendants’ senior executives in the United States were aware of and condoned the conspiracy in Canada.”)). Plaintiffs argued that as a result of the overlap of executive level decision-makers, any conspiracy in Canada necessarily would have spilled across the border into the domestic market. (Id. at ¶ 104(c)-(d); Doc. 996 at 11 (contending at class certification that management on both sides of the border was “closely intertwined”)). In essence, plaintiffs asserted that management simply would not have taken advantage of an opportunity to conspire in one market without also conspiring in the United States. Discovery produced no evidence of “significantly integrated” cross-border management, and this theory was subsequently jettisoned.
With discovery revealing no facts directly connecting Canadian conduct to defendants’ pricing decisions, plaintiffs creative
In the context of Rule 702 motion practice, the court concluded that this actuation theory is economically plausible and may support plaintiffs’ antitrust claims provided, however, that its factual contingencies are supported by record evidence. (See Doc. 1369 at 29-30 (holding that actuation theory is “indeed based on economic principles”)). Factual support never materialized. Although plaintiffs offer general averments with respect to defendants’ alleged awareness of — and even participation in — the Canadian conspiracy, neither the experts nor the parties direct the court to any evidence establishing or tending to prove that defendants knew of, or that them domestic pricing decisions were influenced by, the Canadian trade spend conspiracy. (E.g., Vellturo Dep., 135:8-23, July 10, 2012 (conceding no evidence exists to demonstrate that domestic executives had explicit knowledge of the Canadian trade spend conspiracy); Vellturo Rebuttal at ¶ 102 (no evidence proves that domestic decision-makers were aware of the Canadian trade spend agreement, its nature, or its success, or that it played a role in domestic pricing decisions)). As set forth below, this failure to produce any record evidence of a causal connection between the Canadian trade spend conspiracy and plaintiffs’ allegations of an American pricing conspiracy is fatal to plaintiffs’ antitrust claims.
V. Analysis
The parties raise several predicate issues which the court must resolve before reaching its conclusion as to liability within the ambit of
A. General § 1 Antitrust Principles
Section 1 of the Sherman Act,
Price-fixing liability under Section 1 is predicated on the existence of an agreement, spoken or otherwise, between the defendants. Baby Food,
An antitrust plaintiff proceeding with only circumstantial evidence must establish both “conscious parallelism” and certain “plus” factors. See Petruzzi’s,
B. Parallel Pricing
Parallel pricing is described by the Supreme Court as “the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a prefixed maximizing, supracompetitive level by recognizing shared economic interests and their interdependence with respect to price and output decisions.” Brooke Group v. Brown & Williamson Tobacco Corp.,
The defendants do not — and cannot — contest the fact that their price increases were synchronized and parallel throughout the alleged conspiracy period; instead, defendants vigorously dispute the explanation offered by plaintiffs for the increases, asserting that they did not blindly follow one another but exercised independent business judgment with respect to each price increase. The indisputable fact remains, however, that on three separate occasions between December of 2002 and April of 2007, when one defendant initiated a price increasе on single and king size chocolate bars, the other two defendants followed immediately with similar price increases.
The three lock step price increases challenged by plaintiffs proceeded as follows. In December of 2002, Mars’ list price increase of 3.5 cents per bar on singles was followed within two days by Hershey and two days thereafter by Nestlé.
Acknowledging these threshold facts, defendants nonetheless contend that the price increases were not truly parallel because each defendant’s trade spend discounting practice varied, resulting in markedly different “net” transaction prices. In other words, according to defendants, any parallelism in list pricing was rendered moot by the fact that actual net transaction prices varied across the market. The Third Circuit has squarely addressed, and rejected, this theory. In Flat Glass, the panel was faced with similar arguments: antitrust defendants contended that “regardless of [their] list prices, the actual transactional prices ... declined during the period of the alleged conspiracy,” thus, in defendants’ view, precluding antitrust liability. Flat Glass,
In light of the Third Circuit’s unequivocal holding in Flat Glass, the court rejects defendants’ contention that a lack of uniformity in some — or all — transaction prices precludes antitrust liability. As to this preliminary element of a Section 1 claim, plaintiffs have presented ample, undisputed evidence from which a trier of fact could conclude that price increases implemented by defendants were made with awareness of their competitors’ pricing decisions, and that their competitors’ actions influenced or motivated defendants’ individual pricing decisions. See Petruzzi’s,
C. “Plus” Factor Evidence
In some markets, еvidence of conscious parallel pricing in and of itself “permits a court to infer the existence of a conspiracy between competitors.” Baby Food,
Given the court’s finding of parallel pricing in the matter sub judice, the court must consider whether any plus factors tend to “show that the allegedly wrongful conduct of the defense was conscious and not the result of independent business decisions of the competitors.” Baby Food,
1. Motive & Market Factors
The first plus factor contemplates whether market dynamics rendered the chocolate confectionary market conducive to price-fixing conspiracies in the 2002-2007 time period at issue. See Flat Glass,
In the context of
The court has already conducted a Rule 702 assessment of Dr. Vellturo’s expert analysis and report and observed that his “conclusions are indeed based on economic principles.” (Doc. 1369 at 29 (denying motion in limine as to Dr. Vellturo’s report on market characteristics)). The court opined that Dr. Vellturo’s observations regarding the structural characteristics of the chocolate market are based upon reliable record evidence. (See id.) Likewise, in the context of Rule 702, the court has approved the reports and conclusions of Dr. Tollison. (Doc. 1286 at 14 (observing that Dr. Tollison’s “opinions are founded upon basic economic precepts and industry characteristics”)). Indeed, defendants do not seriously dispute the conceptual or foundational aspects of either expert’s testimony, and the court conceives of no compelling reason to reconsider these rulings. Rather, with respect to market conditions and motive, the parties dispute whether any reasonable inferences of liability can be drawn from the court’s previous findings.
Further, and importantly, defendants’ own experts reach many of the same conclusions as Drs. Vellturo and Tollison with respect to whether market conditions were ripe for collusion. Hershey’s expert witness, Dr. Joseph P. Kalt, agrees with Dr. Vellturo that factors such as high market concentration, high entry barriers, collusive opportunities, and closely substitutable products tend to be more “conducive to conspiratorial behavior.” (Kalt Dep. 223:8-225:7, Aug. 20, 2012). And Dr. Kalt does not dispute Dr. Vellturo’s estimation that defendants collectively controlled between 75 and 78 percent of the domestic chocolate products market during the alleged conspiracy period, (id. at 227:7-228:16), nor does he disagree with the conclusion that the high costs of constructing and establishing a new chocolate manufacturing entity create substantial barriers to entry. (Id. at 229:9-23). Thus, at least insofar as motive, sufficient record evidence would support a jury finding that the structure of chocolate confectionary market makes price fixing • “feasible.”
The mere fact that a market may exhibit oligarchic tendencies and characteristics is, without more, insufficient to establish antitrust liability. See id. at 361 (noting that
2. Behavior Against Interests
The second plus factor queries whether the defendants, by increasing them prices in 2002, 2004, and 2007, acted against their individual self interests. In Baby Food, the Third Circuit succinctly explained that this factor is satisfied when a plaintiff puts forth reliable evidence that a defendant’s pricing actions “would be irrational assuming that the defendant operated in a competitive market.” Flat Glass,
Defendants cite rising materials costs in support of their position that the three targeted price increases were necessary, independent business decisions and not the result of a collusive price-fixing agreement. (Doc. 1213 at 20-22 (Nestlé); Doc. 1222 at 30-32 (Mars); Doc. 1323 at 24-30 (Hershey)). Defendants further argue that their pricing decisions, while parallel, were designed and implemented in such a way as to catch their respective competitors off guard and gain whatever momentary market advantage they could achieve under thе circumstances.
With respect to the question of rising costs, plaintiffs attempt to create a factual dispute sufficient to preclude summary judgment, suggesting that the parties’ respective experts are at direct odds with regard to whether costs steadily increased during the conspiracy period. Plaintiffs
The flaw in the experts’ conclusions stems from a misapprehension of defendants’ explanation for the price increases, focusing on pre-conspiracy period cost stability rather than anticipated post-2002 cost instability. In his report, Dr. Vellturo emphasizes that input costs “were not increasing significantly ... in the period pri- or to the first subject price increase at the end of 2002,” referencing his own Exhibit 5 in particular. (Vellturo Rebuttal at ¶¶ 41-42 (observing that Hershey’s costs were stable prior to 2002); ¶45 (noting that Mars’ costs were stable “prior to ... instituting the first subject price increase in 2002”)). Dr. Vellturo concludes that defendants’ price increases cannot be explained as responsive to market cost instability and must necessarily be the result of unlawful collusion. (Id. at ¶ 34 (concluding that changes in input costs are not a viable “explanation as to what changed in 2002 that led to a clear shift in conduct in the United States by [defendants]”)). Dr. Tollison’s conclusion with respect to the defendants’ cost justification also centers on contemporaneous and post hoc market cost analyses. (See Tollison Rep. at ¶ 64).
Significantly, however, defendants have not posited that their pricing decisions were reactionary responses to pre-conspiracy cost increases. Defendants have argued that their price increases were forward-looking, made in anticipation of raw materials cost increases in 2003, (e.g., Doc. 1211 at 21-22 (Hershey noting that 2002 increase was motivated in part by consensus that raw materials costs would begin to rise in 2003); Doc. 1223 at ¶ 396 (defendants noting that 2002 increase was driven, in part, by predictions that political instability and drought in the Ivory Coast would increase cocoa costs in 2003)), a rationale which Dr. Vellturo and Dr. Tollison make no attempt to discredit or disprove and, indeed, fail to address. Dr. Vellturo’s own exhibits reflect that cost increases, however insubstantial, were a reality throughout the conspiracy period. (Vellturo Rebuttal, Exs. 3, 5). For example, Dr. Vellturo’s Exhibit 5, depicting Hershey-specific prices per pound for commodities, reveals a consistent incline in Hershey’s actual hedged cocoa costs, in addition to increases in its dairy cost and fluctuating costs for its other inputs. (See id., Ex. 5). Hence, Dr. Vellturo’s report demonstrates that even hedged costs were not immune to market influences during the conspiracy period.
It is rational, competitive, and self-interest motivated behavior to increase prices for the purpose of mitigating the effect of anticipated cost increases. See, e.g., Baby Food,
Further, as Mars observes, plaintiffs’ cost analyses give no consideration to other cost elements, such as increasing labor, health, and energy costs, which uncontroverted record evidence establishes were factors in defendants’ pricing decisions. (Doc. 1231-1 at ¶¶ 13-15, ¶ 116 (Nestlé’s expert witness, Dr. Marshall, noting thаt labor, packaging, energy, and distribution costs account for nearly 55 percent of Mars’ total costs); Gamgort Dep. 101:16-102:7, Mar. 11, 2011 (Mars’ executive observing that Mars’ 2002 price increase was the result of a “cumulative adverse impact from all of the input costs ... [including] packaging, energy, labor costs, healthcare costs ... ”)). Dr. Tollison acknowledged on cross-examination that any costs which increase as a percentage of sales should be taken into consideration when pricing. (Tollison Dep. 124:6-126:13, July 14, 2011). Nonetheless, he concedes that the cost index upon which he relied did not contemplate any costs other than raw materials. (Id.) Defendants have produced evidence which establishes that increasing input costs, including not only raw materials but labor, health, and energy costs as well, were variables considered and consequential to their price increase decisions. (See, e.g., Doc. 1211 at 21-22 (Hershey citing anticipated cost increase); Gamgort Dep. 101:16-102:7 (Mars’ executive observing that increase was the result of a “cumulative adverse impact from all of the input costs ... [including] packaging, energy, labor costs, healthcare costs ... ”)). More importantly, plaintiffs have failed to offer any material challenge to defendants’ proffered rationale. See Big Apple BMW,
Moreover, defendants assert that their pricing decisions, while largely identical and effectively simultaneous, were nonetheless timed and orchestrated in such a wаy as to achieve whatever momentary pricing advantage they could over their competitors. (See Doc. 1211 at 20-27 (Hershey detailing internal discussions and efforts of each firm leading up to and following announced price increases)). Robert Gamgort (“Gamgort”), a top executive at Mars during the relevant time peri
[I]t was an attractive opportunity for us to catch people by surprise, catch our competitor by surprise.... It can disrupt them by if they’re not ready, the retailers take — if they didn’t do the prep work that we always did, the retailer takes the price up right away, starts buying heavily against the old price, it causes two issues, one is it can deplete their inventory rapidly, and the first customer to order would get that inventory, causing out of stocks with other customers.
It also is an opportunity cost, which is they end up loading up — the retailers load up their warehouses at an old price and then it defers your ability to capture your costs later on because you sold in all your inventory at an old price. So it’s very disruptive if you’re not ready.
(Gamgort Dep. 118:19-119:9). Gamgort also explained that, in order to achieve this strategic advantage, management is “constantly looking for opportunities to disrupt ... competition.” {Id. at 118:7-15). Defendants’ internal documents entirely corroborate this assertion, reflecting, to varying degrees, aggressive in-house pricing discussions focused on catching competition off guard. {E.g., Doc. 1225-7 at 9883 (Mars business activity recommendation indicating desire to “disrupt!] distracted competition” with 2002 price increase)). The record evidence also reveals frustration among competitors when these attempts were successful. {See, e.g., Doc. 1246-6 at 8856 (Hershey executive noting in email after Mars’ 2004 increase that he is “angry at myself that we didn’t see this coming”)). Plaintiffs have failed to adduce any evidence which would tend to suggest that these documents were sham portrayals in furtherance of the price-fixing conspiracy.
The unvarnished facts of record reflect independent decision-making prior to the 2002 price increase. In July of 2002, approximately five months prior to the first price increase, Mars began evaluating potential pricing actions. (Doc. 1256-4 at 5572-77). Nestlé meeting notes dated September 12, 2002, reflect that Nestlé was also engaged in internal discussions, and that it desired a price increase, observing that it was paying “roughly twice as much as Hershey for cocoa”; however, given its market position, Nestlé resolved to “follow any price advance, yet we can’t initiate a lead.” (Doc. 1256-6 at 5593). Similarly, although Hershey engaged in its own price discussions and reviewed several proposals, {see, e.g., Doc. 1256-8 at 8452-53; Doc. 1256-9 at 7322), it ultimately adopted a “wait and see” approach, opting to follow but not lead a price increase. (Doc. 1257 at 6997). By late September, Mars internally agreed upon a deadline of December 9, 2002, to implement an increase on singles. (Doc. 1225-7 at 9883, 9899). By November, even independent market analysts predicted that because Hershey held the most advantageous forward-looking cocoa position, its competitors may begin to effect price increases which Hershey would be compelled to follow. (Doc. 1256-2 at 6837). Thus, with respect to the first increase, defendants have proved without contravention that each was actively engaged in internal analyses with respect to whether, when, and by what amount to raise its prices.
Defendants’ tactical approaches to the 2002 price increase varied greatly. On December 7, 2002, cоnsistent with its self-imposed deadline, Mars raised the price of its singles and 6-packs of singles by 3.5 cents per bar. (Doc. 1243-1 at 4111-12). On December 9, 2002, Hershey followed, increasing its prices of singles by 3.5 cents per bar, but increasing 6-packs of singles by only 2.5 cents per bar. (Doc. 1245-3 at
The same is true of the 2004 and 2007 price increases, both reflecting unilateral pricing decisions and divergent strategies. In March of 2003, Hershey warned that, despite hedging, cocoa costs would increase “substantially” in 2004, and it contemplated a potential price increase to offset this anticipated problem. (Doc. 1257-8 at 4888). In May of 2003, Hershey specifically evaluated a potential increase on the list price of singles and kings. (Doc. 1257-9 at 6115, 6120, 6123). Hershey has produced internal documents which reveal that the end of 2003 and much of 2004 were marked by extensive discussions regarding potential pricing action and weight reductions. (E.g., Doc. 1227-9 at 7955-57 (internal presentation discussing pricing given cost increases); Doc. 1229 at 7922-23 (internal presentation discussing pricing triggers and responses)). Contemporaneous Mars documents indicate that commodity cost increases were a significant factor in its pricing discussions.
Hershey’s documents also reveal that in June of 2004, its pricing team had proposed a November 2004 price increase on singles, kings, and 6-packs but recommended a hold on packaged product price changes. (Doc. 1227-9 at 7953). However, when Mars initiated a packaged candy increase on November 19, 2004, (Doc. 1260-1 at 1674-1787), it forced Hershey to abandon its earlier strategy. Ultimately, nearly three weeks later, Hershey decided to increase prices on packaged candy as well as singles and kings, (Doc. 1229-3 at 7039), with the increases effective on December 15, 2004. (Doc. 1245-4 at 0601). Shortly thereafter, the remaining defendants matched Hershey’s prices. (Doc. 1226-4 at 8813-8820; Doc. 1261-1 at 3522-23).
In 2007, defendants were once again engaged in independent pricing discussions, beginning with Mars’ decision in the spring of 2006 to hire an outside contractor to develop a pricing strategy. (Doc. 1263 at 4257-58). According to internal documents, both Mars and Hershey were concerned with anticipated increases in market costs for key inputs. (See Doc. 1263-7 (Mars presentation reviewing market costs of key ingredients); Doc. 1263-8 (Hershey presentation noting rise in input costs and discussing potential price increase)). On March 21, 2007, a Hershey pricing team created a proposal to increase prices on singles and kings, but it recommended a six to eight week delay in order to conduct a market study. (Doc. 1229-5 at 9500-02).
In response to this evidence, plaintiffs contend that indications of “surprise” are insufficient to disprove the existence of a conspiracy, asserting that there is no reason to believe that all of the defendants’ employees would be aware of tacit agreements to increase prices in lock step. (Doc. 1296 at 96). In the same vein, plaintiffs assert that an agreement to follow competitors’ price increases does not preclude surprise at the timing or amount of a competitor’s increase. (Id.) This argument is unavailing because it ignores plaintiffs’ own affirmative burden at this juncture. See Big Apple BMW,
With respect to Nestlé, the evidence is even more favorable. Given its minor market share with respect to the more dominant defendants, Nestlé cogently asserts that failure to follow the price increases of its competitors would have been detrimental to its economic self-interest. The parties do not dispute that Nestlé, far from being a market leader, possessed only an 8 percent market share during the relevant period. (Vellturo Rep., Ex 6-A). Uncontroverted evidence demonstrates that Nestlé was constrained by virtue of its market position: although it desired to increase product prices to meet rising costs of production, it also deemed such a move to be strategically unsound given its small market share. (Doc. 1256-6 at 5593 (in 2002, observing increasing cocoa costs but noting that while Nestlé “will follow any price advance ... we can’t initiate a lead.”)). At least one court has credited such concerns, noting that given the nature of an oligopolistic market, “when there is a strong market leader, that leader will be the price leader and other market players will often raise prices along with the market leader in order to increase their profit.” Holiday Wholesale Grocery
Having carefully reviewed the extensive
3. Traditional Evidence of Conspiracy
Courts have been hesitant to allow an antitrust plaintiff to proceed beyond summary judgment in the absence of evidence from which a jury could infer the existence of “an actual, manifest agreement not to compete.” Flat Glass,
a. Canadian Conspiracy
The foundation of plaintiffs’ claims rests largely on their hypothesis that alleged and partially proven anticompetitive conduct in Canada somehow facilitated a price-fixing conspiracy in the United States. As noted supra at pp. 784-85, however, plaintiffs’ initial hopes of discovering and proving an overt cross-border conspiracy have been reduced to this tenuous theory: that the initial success of the Canadian trade spend conspiracy demonstrated to the three domestic defendants that the nature of the market would support and disguise their illegal agreements. (Doc. 1296 at 88-91). Plaintiffs’ cross-border actuation theory rests upon the reports and testimony of the individual purchaser plaintiffs’ expert, Dr. Vellturo. (Vellturo Rep. at ¶¶ 202-09; Vellturo Re
Anticompetitive conduct “elsewhere in time or place does not generally allow the inference of an immediate conspiracy.” Philip E. Areeda & HErbert H. Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1421a (3d ed. 2012). Indeed, absent some reliable, factual link between foreign and domestic conduct, courts have declined to use foreign conduct as a plus factor for liability purposes. In re Elevator Antitrust Litig.,
In his report, Dr. Vellturo tenuously opines, in pertinent part, as follows:
From an economic standpoint, the close interrelations between Canadian and United States marketplaces indicate that anti-competitive practices and outcomes in one market could likely serve as facilitating devices for the establishment and execution of tacitly (or expressly) collusive outcomes in the other. Given the extensive interactions between the United States and Canadian operations at Defendants, I find that the collusive conduct and outcomes executed in Canada did serve as a facilitating device that actuated and helped to maintain anti-competitive outcomes in the United States.
(Vellturo Rep. at ¶ 203).
Dr. Vellturo concedes that there is no record evidence establishing that defendants’ domestic pricing decision-makers had “explicit knowledge” of any anticompetitive or unlawful activity in Canada, (Vellturo Dep. 135:8-23), vitiating his conclusion that an awareness of successful efforts in Canada directly facilitated domestic collusion. Dr. Vellturo further concedes that there are no documents or other evidence, contemporaneous or otherwise, which indicate that defendants’ domestic decision-makers were even aware of the Canadian trade spend agreement, its nature, or its success, or that the Canadian conspiracy played any role whatsoever in defendants’ pricing decisions. (Vellturo Rebuttal at ¶ 102). Indeed, the only evidence cited by Dr. Vellturo to support his conclusion that information crossed the border is evidence that the domestic defendants stayed informed as to their Canadian counterparts’ lawful competitive activities. (Vellturo Rep., ¶ 113 (Hershey Canada executive relayed price increase information to domestic officer after announcement was public); ¶ 138 (observing that in 2003, Hershey’s domestic executives were “closely scrutinizing” the Canadian market)).
This is not to say that plaintiffs have stepped up to the plate empty-handed. When pressed during oral argument, counsel for the individual purchaser plaintiffs directed the court to several documents and suggested to the court that discovery produced ample evidence of anticompetitive behavior and unlawful communications. (Tr. of Oral Argument, 75:20-81:25). Specifically, counsel cites the following evidence:
(1) An October 2002 email between Art Nemeth and Bruce Brown, two Hershey Canada executives, indicating that Brown had discussions with Mars’ Canada personnel involving pricing (Doc. 1296-102 at 7468);
(2) A November 2002 memorandum from Hershey chief executive officer Rick Lenny to the Hershey Board of Directors acknowledging that “Canada has been plagued by aggressive competitive promotions all year” and indicating that Bruce Brown has been appointed as acting general manager in Canada (Doc. 1296-51 at 6813);
(3) A January 2003 email from Bruce Brown to Burton Snyder, then-interim president of Hershey International indicating that Nestlé Canada had announced a price increase and that “some intelligence” suggests that Mars Canada “is anxious to follow the price increase” but “would rather have Hershey or Cadbury go ahead of them” because Mars “suffered more than we did last year, relatively speaking, so they’re not starting from a position of strength” (Doc. 1296-54 at 8134);
(4) A January 2003 email from Burton Snyder to Bruce Brown directing Hershey Canada to proceed with the price increase proposed by Brown in a prior email (Doc. 1296-103 at 8133);
(5) A June 2005 email from Bruce Brown to J.P. Bilbrey, then-president of Hershey International, that “we had heard rumors swirling around about a potential competitive price increase (Nestlé/Cadbury) in Canada for Q4 2005, and had it confirmed last week, although details are sketchy” (Doc. 1296-130 at 9021); and
(6) A January 2007 email from Bert Alfonso, Hershey’s Vice President for Financial and Planning, introducing Eric Lent, Hershey Canada’s newvice president, to David Sculthorpe, president of Cadbury Canada. (Doc. 1296-144 at 5540).
Viewed in a light most favorable to plaintiffs, this evidence of executive-level communications falls woefully short of the “extensive interactions” between domestic and Canadian affiliates which are so crucial to the viability of Dr. Vellturo’s “actuation” theory. Close inspection of the correspondence reveals nothing dissolute with respect to the domestic defendants. The emails represent communications primarily among Canadian executives, and they pertain to Canadian price increases. The only email of domestic relevance, Bert Alfonso’s routine introduction of a new Canadian colleague to his competitors, is entirely innocuous. Baby Food,
Consequently, for a jury to accept and rely upon plaintiffs’ theory that the Canada conspiracy “actuated” domestic collusion, it would need to make an inferential quantum leap: that a general awareness of competitive activity among foreign subsidiaries necessarily translates to knowledge of unlawful activities as well. Lawful sharing of competitive intelligence among subsidiaries, however, is plainly “conduct [as] consistent with permissible competition as with illegal conspiracy,” and the actuation inference suggested by plaintiffs is clearly not within “the range of acceptable inferences” the court may derive from plaintiffs’ evidence. See Baby Food,
The record is devoid of evidence tending to establish any tie between the Canadian trade spend conspiracy and the lock step
b. Advanced Knowledge
Plaintiffs point to a handful of internal documents indicating that defendants were aware of — or at least anticipated — their competitor’s price increases before those increases were made public. This evidence includes: (1) an undated, unsigned chronology from Hershey’s files indicating that an employee discovered that Mars was “considering a price increase due to rising cocoa costs” in September of 2002 (Doc. 1266-8 at 8243); (2) a December 20, 2004 email from Hershey chief executive officer Richard Lenny (“Lenny”) to the Hershey Board indicating that Hershey had “received confirmation that both Mars and Nestlé hаve also raised their prices on loose bars” after Hershey and Mars had increased their prices but before Nestlé had issued its trade announcement (Doc. 1266-5 at 0092); (3) a February 21, 2007 email from Mars’ president observing, with regard to price increase proposal, that “[Hershey] will most definately [sic] follow given their poor earnings” (Doc. 1266-6 at 9967-68); and (4) an internal April 2007 email between Nestlé employees reacting to Hershey’s price announcement in which a Nestlé manager responds by writing: “It’s about time ... did our [sales department bulletin] go out?” (Doc. 1266-7 at 8091-92). Plaintiffs posit that this evidence is sufficient to permit a jury to find that “there was direct communication concerning a price increase in the United
In Baby Food, the Third Circuit panel addressed the issue of whether advanced knowledge of a competitor’s pricing announcements suffices to permit an inference that the competitors had conspired to fix prices. At summary judgment, the Baby Food plaintiffs presented evidence that defendants’ sales representatives would frequently obtain competitive information from one another. Baby Food,
The Third Circuit agreed with the district court on appeal. Rejecting the plaintiffs’ contention that advanced possession of competitive price information permits an inference of a “pervasive exchange of confidential information,” the panel wrote:
We have previously held that communications between competitors do not permit an inference of an agreement to fix prices unless ‘those communications rise to the level of an agreement, tacit or otherwise.’ Gathering competitors’ price information can be consistent with independent competitive behavior.... We do not believe that the mere possession of competitive memoranda is evidence of concerted action to fix prices. In a highly competitive industry, as is the baby food industry, it makes common sense to obtain as much information as possible of the pricing policies and marketing strategy of one’s competitors.
Id. at 126 (citing Wallace v. Bank of Bartlett,
Plaintiffs at bar have failed to distinguish Baby Food in any meaningful way and, viewed objectively, plaintiffs’ evidence is even less compelling. First, in contrast to Baby Food, plaintiffs have produced no evidence tying defendants’ advanced notice to their competitors. More critically, plaintiffs offer no evidence beyond their own speculation to controvert defendants’ explanations as to the sources of the “notice” they possessed. With respect to Hershey’s 2002 internal timeline indicating that it had “learned” that Mars was considering an increase and its 2004 email indicating that Nestlé had increasеd prices before Nestlé’s announcement was public, Hershey has produced evidence that the information came from market sources. (Doc. 1256-9 at 7321 (contemporaneous 2002 internal presentation indicating that third party cocoa suppliers have predicted that Mars will increase prices); Doc. 1323, Ex. A, at ¶¶ 3-5 (former vice president of customer marketing declaring that increase notice came from customers, not competitors)). Dr. Tollison acknowledges
In sharp contrast to plaintiffs’ conspiracy speculations, the record reveals that defendants were frequently surprised by both the timing and amounts of their competitors’ increases. (See, e.g., Doc. 1225-7 at 9883 (contemporaneous Mars document noting intent to “potentially disrupt distracted competition” with pricing); see also Gamgort Dep. 117:10-118:15 (emphasizing element of surprise in pricing)). Given the dearth of evidence tending to prove the exchange of price information, let alone an agreement to fix prices, the court is compelled to follow the sound guidance of Baby Food and hold that the meager evidence of advanced pricing information, without more, is as consistent with independent business conduct as conspiracy to fix prices. It is therefore insufficient to establish an inference of antitrust liability. See Baby Food,
c. Opportunities to Collude
Lastly, plaintiffs assert that defendants’ executives with pricing authority had numerous opportunities to conspire proximate to the 2002, 2004, and 2007 price increases. Specifically, plaintiffs contend that high level trade association contacts predating price increases in 2004 permit the inference that defendants’ executives either offered pricing information to one another, a notion wholly unsupported by the record, or that defendants agreed to conspire during those meetings. (Doc. 1296 at 91-92; Doc. 1454 at 50-51). Defendants observe that there is nothing abnormal about regular interaction of competitors, especially in the context of trade association meetings, and that these events cannot support an inference of conspiracy. (Doc. 1402 at 15-18; Doc. 1401 at 19-20; Doc. 1422 at 13-16). Once more, the case law and the facts of record align with defendants.
The Third Circuit and other appellate courts have routinely held that mere opportunities to conspire, like evidence of motive or market factors, are insufficient to establish an inference of conspiracy. See, e.g., Baby Food,
The evidence presented by plaintiffs shows only that several top executives from the defendant manufacturers were among hundreds of other attendees at a
4. Record as a Whole
In final reply to defendants’ measured responses, plaintiffs urge the court to consider the record as a whole and to refrain from parsing individual pieces of evidence or weighing each separately. (See Doc. 1296 at 63). The court is fully cognizant of the Third Circuit’s mandate to view the record as a whole, and it is with this precept in mind that the court has considered each of the conspiracy allegations lodged by plaintiffs. See Baby Food,
Despite slight variations in fact which, ultimately, favor defendants, the litigation before the court is conceptually indistinguishable from Baby Food as it pertains to plus factor evidence in circumstantial antitrust cases. In the end, despite exhaustive and comprehensive discovery, hundreds of depositions, the production of thousands of documents, and the tireless efforts of all counsel,
YI. Conclusion
Initially, plaintiffs’ claims of a domestic price-fixing conspiracy were quite plausible. The Canadian trade spend conspiracy raised the specter of Sherman Act violations in our contiguous marketplace. Litigation and merits discovery properly ensued. But, at the end of thе day, the probata could not match the allegata.
Despite diligent efforts on the part of plaintiffs’ counsel and nearly unfettered access to defendants’ records, plaintiffs are before the court with nothing more than speculation as to the who, what, when, where, and how of the communications that allegedly facilitated the parallel price increases. Nothing scandalous or improper has been discovered within our borders, and no evidence permits a reasonable inference of a price-fixing agreement. Plaintiffs offer no meaningful arguments or evidence to counter defendants’ legitimate business explanations for the parallel price increases. Accordingly, the court cannot but conclude that defendants’ conduct is “as consistent with permissible competition as with illegal conspiracy.” Matsushita,
For all of the reasons articulated herein, the court concludes that summary judgment in favor of all defendants is warranted on the Section 1 antitrust claims of both the individual purchaser plaintiffs and the direct purchaser class and will thus grant defendants’ motions. An appropriate order follows.
ORDER
AND NOW, this 26th day of February, 2014, upon consideration of the motions for summary judgment filed by Nestlé U.S.A., Inc. (“Nestlé”) (Docs. 1205, 1385), The Hershey Company (“Hershey”) (Docs. 1206, 1386), and Mars, Inc., and Mars Snackfood U.S. (collectively, “Mars”) (Docs. 1221, 1421), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the motions (Docs. 1205, 1206, 1221, 1385, 1386, 1421) are GRANTED in favor of all defendants and against the direct purchaser class and the individual purchaser plaintiffs as to all Section 1 claims. The Clerk of Court is directed to defer the entry of judgment pending the conclusion of the litigation.
Notes
. The individual purchaser plaintiffs are Meijer, Inc. and Meijer Distribution, Inc.; Publix Super Markets, Inc.; Affiliated Foods, Inc.; CVS Pharmacy, Inc.; Rite Aid Corporation, and Rite Aid Hdqtrs. Corр.; Longs Drug Stores California, Inc.; Golub Corporation (d/b/a Price Chopper); Giant Eagle, Inc.; Kroger Co.; Safeway, Inc.; Walgreen Co.; Hy-Vee, Inc.; The Great Atlantic & Pacific Tea Co.; Albertson’s LLC; HEB Grocery Company, LP; SuperValu, Inc.; Food Lion LLC; Flannaford Bros. Co.; Kash n’Karry Food Stores, Inc.; Brookshire Grocery Co.; and United Supermarkets LLC. The court will refer to this group as "individual purchaser plaintiffs.”
. On December 7, 2012, the court granted a motion for class certification pursuant to
All persons and entities who directly purchased standard ("singles”) and King size ("King”) single serve chocolate candy for re-sale from any Defendant or any predecessor, controlled subsidiary affiliates or division of any Defendant, in the United States or for delivery into the United States at any time from December 9, 2002 through December 20, 2007.
(Doc. 1286 at 57). In certifying the class, the court expressly excluded governmental entities, the defendants, and the individual purchaser plaintiffs. (Id. at 57-58).
. The defendants are Nestle U.S.A., Inc., ("Nestlé”), The Hershey Company ("Hershey”), and Mars, Inc., and Mars Snackfood U.S. LLC (collectively, "Mars”). Unless individually identified, all references to "defendants” herein refer to all defendants collectively.
. The parties are quite familiar with the procedural course that this litigation has followed and, therefore, the court will highlight only the most pertinent procedural landmarks herein.
. To the extent facts are undisputed and supported by record evidence, the court cites directly to the parties’ statements of material facts. For ease of reference, the court will cite to the last four (4) digits of the Bates stamp pagination on the respective exhibits of the parties. All other citations, e.g. to the parties' briefs or the court’s prior memoranda, will reflect the document’s original word-processing рagination.
. Plaintiffs dispute this fact but offer no evidence to controvert the documents and testimony establishing it. (See Doc. 1296-1 at ¶ 137).
. Although Nestlé ranks third among the major manufacturers in the U.S., the Nestlé brand has substantial market power abroad, and it is the market leader in Canada. (Doc. 1296-1 at ¶ 356).
. The individual purchaser plaintiffs have offered no evidentiary response to arguments raised by Mars with respect to future consumption products. Implicit from the court’s narrowing of the certified class and, more pertinently, from both plaintiff groups’ proof and arguments, is the abandonment of any claims related to future consumption products. Although the court is unaware of any formal withdrawal of these claims, the fact remains that proof in this matter has been tailored to single and king size bars to the exclusion of any future consumption products. Consequently, the court deems claims related to future consumption products to be withdrawn and focuses its analysis solely on single and king size bars.
. Nestlé emphasizes that its 2002 increase did not mirror its competitors’ increase and instead was 0.2 cents per bar lower. Such a slight differential between increases, however, is de minimis and not dispositive to the court’s parallel pricing analysis. Baby Food,
. Defendants do not dispute the vast majority of Dr. Vellturo's market factor conclusions, with the exception of his finding that "actual” raw material costs declined during the conspiracy period. The court will address this dispute infra.
. Defendants largely concede this point, offering cursory argument with respect to minor variations in their respective market shares, (Doc. 1222 at 28-29 (Mars contending that share shifts between defendants indicate competition rather than collusion)), and product differentiation (id. at 27-28 (Mars contending that differentiation rather than standardization renderеd market hostile to collusive behavior); Doc. 1319 at 23 (Nestlé positing that heavy branding and marketing symbols belie plaintiffs' contention that chocolate products are largely fungible)).
. See infra at pp. 793-96.
. Nestlé’s market share fluctuated only minimally during the conspiracy period, resting within the 8.0 to 8.3 percent range. (Vellturo Rep. at Ex. 6-A).
. Even if costs were stable or demand was in decline during the conspiracy period, pricing action without consideration of changes in cost does not, by itself, tend to disprove the possibility of independent and self-interested conduct. See, e.g., Brooke Group,
. Plaintiffs dispute whether costs actually motivated defendants' pricing discussions, but they do not dispute the fact that defendants were actively engaged in internal analyses. (Doc. 1296 at ¶ 440).
. No one factor is dispositive to an antitrust claim. Thus, if plaintiffs present sufficient evidence indicative of a traditional conspiracy under the third plus factor, they may survive summary judgment despite failing to establish other factors. See Flat Glass,
. The court notes with interest that Dr. Vellturo’s threshold statement speaks inchoately of close interrelations which “indicate” that “anti-competitive practices ... in one market could likely serve as facilitating devices ... for collusive outcomes in the other.” (Vellturo Rep. at ¶ 203 (emphasis added)). Despite the myriad contingencies in this preliminary observation, Dr. Vellturo abruptly follows with the sweeping conclusion that the "extensive interactions between the United States and Canadian operations ... did serve as a facilitating device that actuated” defendants' price-fixing conspiracy. (Id. (emphasis added)). This conclusion is a house of cards that is wholly contingent upon factual proof of "extensive interactions” between domestic and Canadian affiliates. In the absence of such factual proof, the house of cards necessarily collapses. See infra at pp. 799-800.
. At oral argument, plaintiffs’ counsel inventively portrayed the evidence as follows:
It goes on a spectrum from we were aware that there was coordination in Canada and didn’t put a stop to it because it helped us to coordinate our prices in the United States ... and when you have that kind of conduct by the U.S. executives who have pricing authority, that kind of awareness at a minimum, and that kind of direction at a maximum, I think a jury can easily conclude, as Dr. Vellturo points out, that they use Canada as a facilitating device. That is they used it to shape the expectations of U.S. executives that pricing should be followed.
(Tr. at 83:15-84:5; also id. at 90:15-22 ("You have the U.S. executives at a minimum aware of what’s going on in Canada and at a maximum directing it, and Dr. Vellturo says that is a perfect facilitating device to give comfort to, give assurances that U.S. price increases would be followed.”)).
. The development of a thorough summary judgment record has illuminated and underscored material differences between what occurred in Canada and what plaintiffs allege sub judice. The Canadian conduct involved concerted managerial efforts to curb transaction-level trade spend promotional practices. (See Doc. 1296-1 at 12-15). In contrast, the domestic conduct challenged by plaintiffs pertains to three list pricing decisions. The Canadian and domestic behaviors are fundamentally distinct, and plaintiffs do not point to any relevant similarities which would be probative of plaintiffs' claims. Given this further attenuation, the evidence does nоt support the inference urged by plaintiffs: that the initial success of a trade spend conspiracy in Canada assured the defendants that a domestic price-fixing conspiracy would succeed. For this additional reason, the court rejects plaintiffs' actuation theory as applied to this case.
. Plaintiffs emphasize that this court has previously ruled that their allegations with respect to domestic market conditions contemporaneous with the explicit collusion in Canada “raise an inference of plausibility [of concerted action] when juxtaposed with parallel conduct.” (Doc. 1296 at 90 (quoting In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 576 (M.D.Pa. Mar.4, 2009))). Plaintiffs accurately cite this court's holding. That decision, however, was rendered at the Rule 12(b)(6) stage, when plaintiffs’ allegations of executive-level communications between the defendants and their Canadian counterparts with respect to pricing were assumed true. See In re Chocolate,
. In previous submissions, plaintiffs have claimed that a proposed sale of Hershey to Nestle S.A. (in addition to a licensing agreement between those parties) created ample opportunities to conspire. (See Doc. 421 at ¶ 104(g)). This argument is notably absent from plaintiffs'
. The court again commends counsel for their exemplary and diligent efforts throughout all phases of this litigation.