MEMORANDUM OPINION AND ORDER
Plaintiffs have filed suit on behalf of a class of sulfuric acid consumers against several producers of the commodity (collectively “Defendants”) for violations of § 1 of the Sherman Act, 15 U.S.C. § 1. Plaintiffs allege that Defendants engaged in anticompetitive behavior by conspiring to reduce the output and fix the price of sulfuric acid in Canada and the United States. In furtherance of the conspiracy, American Defendants GAC Chemical Corporation (“GAC”),
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Boliden Intertrade Holdings, Inc. (“Boliden”), Pressure Vessel Services, Inc. (“PVS”),
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Koch Industries Inc. (“Koch”), E.I. du Pont de Nemours and Company (“DuPont”), Marsulex, Inc., (“Marsulex”), and Chemtrade Logistics, Inc. (“Chemtrade”) allegedly shut down or curtailed production in their respective facilities in favor of purchasing acid from Canadian Defendants Noranda, Inc. (“Noranda”) or Falconbridge Ltd. (“Falcon-bridge”). Plaintiffs also allege that Defendants Noranda, Falconbridge, and DuPont operated an illegal price fixing and output restriction agreement under the label of Noranda DuPont, LLC (now “Norfalco”), a joint venture. Plaintiffs’ cases were consolidated and transferred to this Court by the Multidistrict Litigation Panel on July 1, 2003. The Court certified Plaintiffs’ class on March 21, 2007,
Before this Court are motions for summary judgment brought by Defendants GAC [413], Noranda [418], Boliden [422], Falconbridge [426], PVS [430], Norfalco [433], and Koch [439], All Defendants join
FACTS 3
The instant action centers on allegedly anticompetitive behavior that took place in the sulfuric acid market in Canada and the United States from 1988 through 2001.
A. Parties
1. The named Plaintiffs are Ohio Chemical Services, inc., Independent Chemical Corporation, National Alum Corporation, Producers Chemical Company, Old Bridge Chemicals, Inc., and AG RX. Each claims to have purchased sulfuric acid directly from one or more of the Defendants or their alleged co-conspirators.
2. The Defendants are Norfalco, Noranda, Faleonbridge, PVS, GAC, and Koch. Defendants Noranda and Faleonbridge, both located in Canada, were at all relevant times in the mining business, and were involuntary producers of sulfuric acid as a consequence of their metal smelting activities. The other Defendants were at various times in the business of manufacturing, marketing, selling, or distributing sulfuric acid in the United States.
3. Defendants who have already reached settlement with Plaintiffs include DuPont, Marsulex, and Chemtrade.
B. Jurisdiction
4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337 and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26.
5. Plaintiffs also allege that personal jurisdiction over the defendants comports with the United States Constitution. Plaintiffs allege that venue is proper in this District pursuant to Sections 4 and 12 of the Clayton Act, 15 U.S.C. § 15(a) and 22, and 28 U.S.C. § 1391(b), (c) and (d) based upon their allegations that Defendants resided, transacted business, were found or had agents in this District and because of their allegations that a substantial part of the events giving rise to their claims occurred, and a substantial portion of the allegedly affected interstate trade and commerce was carried out, in this District.
C. Procedural History
6. Sulfuric acid consumers filed a variety of suits in United States federal courts, many of which were consolidated and transferred to this court by the Multidistrict Litigation Panel on July 1, 2003. On motion of the Plaintiffs, this Court certified a class on March 21, 2007, made up of:
All persons (excluding federal, state, and local governmental entities and political
7. Plaintiffs allege they purchased sulfuric acid directly from one or more of the defendants in this case.
D. Sulfuric Acid Industry Generally
8. Sulfuric acid is an extremely corrosive chemical used in many industrial processes. The largest use of sulfuric acid in North America is to manufacture fertilizer, which is made by combining acid with phosphates. Sulfuric acid is also an input in numerous industrial products and manufacturing processes. For example, it is used in kraft pulp bleaching to make chlorine dioxide, a bleaching agent, and to make titanium dioxide. (Falcon-bridge Rule 56.1 Statement of Facts (“SOF”) ¶¶ 4,13,14)
9. Sulfuric acid is generally produced in one of two ways: voluntarily, in a process of burning elemental sulfur, or involuntarily, as a by-product from the smelting of ores into metals such as copper and zinc. (Noranda SOF ¶ 4.)
10. The marginal cost to a voluntary producer of sulfuric acid is generally the cost of the sulfur and the cost of operating the plant, net of a credit for any by-product energy generated during the manufacturing process. (Noranda SOF ¶ 7.)
11. The process of smelting ores into metals generates sulfur-containing gases, which environmental laws require to be recaptured, resulting in the “involuntary” production of sulfuric acid. There is a dispute as to how to characterize the marginal cost to smelters of producing involuntary sulfuric acid. (PI. Response, Noranda SOF ¶ 8.)
12. Because there are no commercially viable methods for disposing of or storing sulfuric acid, smelting operations producing acid have no reasonable alternative to selling it. A smelter runs the risk of a forced shut down of its smelting operations if it is unable to sell enough sulfuric acid to avoid exceeding its storage capacity. (Falconbridge SOF ¶¶ 7, 8,10.)
13. The costs of shutting down a smelter are quite high. (Falconbridge SOF ¶ 11.)
14. The cost of transporting sulfuric acid is large compared to its value. (Falconbridge SOF ¶ 12.)
15. The demand for sulfuric acid is driven for the most part by the demand for the products in which it is used as an input. There are frequently no close substitutes for acid in these products. (Falcon-bridge SOF ¶¶ 15,16.)
16. However, the demand for acid is not always responsive to the price of acid. Also, the value of sulfuric acid in relation to the value of the product in which it serves as an input is small. (Falconbridge SOF ¶¶ 16,17.)
17. In the 1980s, environmental legislation designed to prevent acid rain forced smelting companies to capture an increased amount of sulfuric acid as a result of their smelting processes. (GAC SOF ¶ 21.)
18. Acid pricing eroded in the early 1990s due to the abundance of
E. Noranda’s Sulfuric Acid
19. Noranda’s core smelting operations produce base metals, such as nickel, copper, or zinc. Sulfuric acid is not part of Noranda’s core business. (Noranda SOF ¶ 9, 18, 20.)
20. During the 1980s, Noranda had to deal with an increased amount of sulfuric acid from its smelting processes, due in part to stricter environmental regulations for the prevention of acid rain. Regulations required the recapture of sulfur containing gases from the smelting process, which were converted to sulfuric acid. (Falconbridge SOF ¶ 18.)
21. In the mid-1980s, Noranda made plans for a new sulfuric acid plant at its Horne smelter, designed to produce hundreds of thousands of additional tons of sulfuric acid per year. (Noranda SOF ¶ 16.)
22. The supply of acid in Eastern Canada, where Noranda’s smelters were located, was greater than the local demand. (Falconbridge SOF ¶ 19.)
23. Noranda retained an outside consultant to investigate the market opportunities for the new sulfuric acid recovery system to be built at its Horne smelter. The result was a June 1985 report by Manderson Associates, Inc., entitled Sulphur & Sulphuric Acid: Long Range Outlook for World and Regional Supply, Demand, Costs, and Prices with Emphasis on the Market Opportunities for By-Product Sulphuric Acid that May be Produced at Noranda’s Smelter at Noranda, Quebec. (Noranda Ex. 6 (“Manderson Report”).)
24. The Manderson Report noted that, because of freight costs, the net-back price from the sale of sulfuric acid from Noranda’s new Horne sulfuric acid recovery plant to the U.S. market would be lower than the netbacks of “most (and possibly all) other locations that produce and market smelter acid in the U.S.” (Manderson Report at 182.)
25. As used in the industry, the term “netback” or “Net Back” refers to the return on a sale net of freight costs.
26. The Report also stated that the likelihood of low net-backs from sales to the United States “suggests that Noranda would, at best, be only temporarily successful by cutting prices to gain market entry, especially against other producers of non-discretionary sulphuric acid. Moreover, there is the added danger that predatory pricing of Canadian acid would cause U.S. producers to lodge a complaint of dumping, which (if sustained) could trigger the assessment of an import tariff or other restrictions on acid movements from Canada into the U.S.” (Id. at 182-83.)
27. The Report concluded that “the most prudent marketing approach would be for Noranda to work with existing U.S. producers of discretionary (sulphur-based) acid who, because of declining margins or other reasons, are willing to shut or throttle down their existing acid production in exchange for purchasing smelter acid. DuPont recently followed this tactic in the Chicago market — by closing its local plant in Chicago Heights and becoming a marketer of smelter
28. In estimating the sales prospects in the United States for Noranda’s new Horne sulfuric acid plant, the Manderson Report “assumed that Noranda would pursue a sales philosophy of working with local acid marketers-producers, who would supplement part or all of their acid requirements through outside purchase. Their idled plants would therefore serve as standby, if disruptions in supply of smelter acid take place.” Id. at 16. The Report noted the Midwest and North Central U.S. as potentially attractive areas for the sale of acid. (Id. at 183.)
29. On October 18, 1985, the Canadian federal government solicited a meeting with Noranda to discuss a variety of topics with Noranda and the author of the Manderson Report. The topics included Noranda’s “marketing strategy” for sulfuric acid, and whether there were “producers-sellers” that were “likely candidates” for the arrangements discussed in the report. (Noranda SOF ¶ 30.)
F. Noranda’s entrance into U.S. markets
30. U.S. trade laws sanction imports that compete with American products if the American producers can make a case that prices are too low, a condition called “dumping.” (Noranda SOF ¶ 31.)
31. Noranda was concerned that selling its acid directly to end-user consumers in the United States would put it at risk of an anti-dumping action brought by voluntary producers of sulfuric acid. (Noranda SOF ¶ 31.)
32. Noranda knew that certain voluntary producers in the U.S. had old and inefficient production facilities. As of the mid-1980s, “[m]ost of the acid plant capacity outside of the southeastern U.S. [was] from units which [were] fifteen years or older.” (Manderson Report at 12.)
33. Noranda Sales Corporation, Noranda’s wholly-owned sales and marketing subsidiary, proposed a strategy called “displacement by agreement,” whereby Noranda would sell sulfuric acid to voluntary producers at a price lower than the costs of manufacturing the acid. (Def. Response, PL SOF ¶ 12.)
34. There is significant dispute as to promises and understandings beyond the face of Defendants’ sales contracts. The primary dispute among the parties is whether Noranda required producers to shut down or curtail acid production as a condition of entering these agreements, and whether the purpose of these agreements was to stabilize prices, control industry output, and prevent competition.
35. During the relevant time, Noranda also sold through resellers and to end-user customers in the United States. (Noranda SOF ¶ 41.)
G. PVS Involvement
36. Plaintiffs allege that Noranda and PVS entered into agreements to shut down PVS’s sulfuric acid production facilities in Copley, Ohio, and Bay City, Michigan, thereby reducing the total amount of acid in
37. PVS operated a sulfur burner in Copley, Ohio, that had been built in the early 1970s. (PL Response, PVS SOF ¶ 16.)
38. In 1987, PVS conducted a make-or-buy analysis to determine whether to continue producing sulfuric acid at Copley or obtain its requirements from another source. (PVS SOF ¶ 20.) In addition to Noranda, PVS considered Phelps Dodge, Kennecott, Monaca, and Asarco as potential suppliers. (PVS SOF ¶ 25.)
39. PVS ultimately determined that it would shut down the Copley plant’s sulfuric acid manufacturing process and purchase the sulfuric acid it needed to service its customers. (PVS SOF ¶ 26.)
40. PVS executive, Donald Sosnoski, wrote regarding the prospect of a distribution contract with Noranda:
“As I understand the market circumstances in Ohio, our choices are not between running the plant or proceeding with the unit train proposal. Rather, they are apparently between proceeding with the unit train proposal or gradually shutting down the plant and getting out of the sulfuric acid market in Ohio. Apparently, the Noranda acid is destined for the Ohio market, and if we don’t control it, someone else will. The latter would apparently result in depressed prices and make it uneconomical to operate the plant.” Noranda Ex. 36 (3/1/88 Sosnoski Mem.) at 3.
41. PVS and Noranda entered into a contract whereby PVS agreed to purchase an estimated 60,000 tons of sulfuric acid annually from Noranda. (PVS SOF ¶ 40.)
42. The agreement between Noranda and PVS-Copley includes a revenue sharing provision. (PVS Ex. 31, Copley Contract at ¶ 13.)
43. PVS acquired its Bay City, Michigan sulfuric acid plant on or around April 30, 1976, in order to supply one principal customer, Dow Chemical, in Midland, Michigan. The plant was built many years before then. (PVS SOF ¶ 42.)
44. After the loss of Dow Chemical as a customer, the Bay City sulfuric acid facility principally supplied PVS in Detroit, Michigan. (PVS SOF ¶ 44.)
45. The additional freight costs of transporting acid over more than 100 miles to Detroit, combined with the plant’s old age and inefficiency, made the Bay City operations economically unsound. (PVS SOF ¶¶ 44, 45.)
46. At some point, PVS considered purchasing its sulfuric acid requirements from smelting companies, rather than continuing to manufacture acid at Bay City. (PVS SOF ¶ 47.)
47. PVS assessed the possibility of purchasing acid from Phelps Dodge, Asarco, Kennecott, Inco, Noranda, or Falconbridge. (PVS SOF ¶ 47.)
48. A formal analysis conducted in June 1990 favored purchasing acid from Noranda. (PVS SOF ¶¶47, 48.)
49. On August 1, 1990, PVS entered into a contract with Noranda for the sale and delivery of PVS’s sulfuric acid requirements to its Detroit facility, in the amount of 40,-000 tons of acid annually. (PVS SOF ¶ 54.)
H. GAC Involvement
51. Plaintiff alleges that Delta Chemicals, Inc. (“Delta”) coordinated with Noranda to shut down its sulfuric acid plants. The shutdowns allegedly removed 60,000 to 70,000 tons of annual capacity from the sulfuric acid market. (Compl. ¶ 40.)
52. Delta operated two acid plants at its Searsport facility from which it manufactured acid for sale to customers. (GAC SOF ¶ 7.)
53. At some point in the 1980s, when sales of sulfuric acid began to outpace Delta’s manufacturing ability, the company began purchasing acid from third parties like Noranda to satisfy customer demand (GAC SOF ¶ 9, 28.)
54. Delta had environmental problems at the Searsport sulfuric acid facility starting as early as 1977. (GAC SOF ¶¶ 10,11.)
55. In light of the costs required for environmental compliance, Delta performed a make-or-buy analysis to determine whether it would be more economical to continue producing sulfuric acid at Searsport, or instead buy 100% of Delta’s acid requirements from a third party. (GAC SOF ¶ 15.)
56. Negotiations began between Delta and Noranda over the purchase of Delta’s acid requirements. (GAC SOF ¶ 12.) On October 6,1989, the companies entered into a contract for the sale by Noranda to Delta of “the total requirement of sulphuric acid by internal consumption at and sales from [Delta’s] Searsport facility.” (GAC SOF ¶ 39, 40; GAC Ex. 23 at p. 2.)
57. The Delta Contract stated that purchases would begin “no later than November 1, 1989, and continue to December 31, 1996, and thereafter from year after year subject to the right of termination.... ” (GAC Ex. 23 at p. 6.)
58. The “revenue sharing” provision between Noranda and Delta provides that “any increase or decrease in Gross Margin [on Delta’s sales to its customers] ... shall be shared equally” by Noranda and Delta.
59. By their terms, the revenue-sharing agreements relate only to the distribution of Noranda’s product.
60. Delta shut down of the Searsport facility in 1988. (GAC SOF ¶ 42.)
61. On or about March 8, 1994, GAC purchased the assets of Delta for $8.02 million, subject to certain adjustments, pursuant to an Asset Purchase Agreement of that date. (GAC Ex. 26.)
62. Delta and GAC survived as separate entities. (GAC Ex. 26 ¶ 1.2, 1.3, 2.2,11.1,11.2.)
63. Paragraph 2.2 of the Asset Purchase Agreement provides that, except for certain specific “Assumed Liabilities,” GAC “shall in no event assume or be responsible for any liabilities, liens, security interests, claims, obligations, or encumbrances of [Delta].” (GAC Ex. 26 ¶ 2.2.)
64. When GAC acquired Delta’s assets, the Searsport facility was not valued in or considered as part of the acquisition. Delta’s Searsport plants were inoperable and incapable of producing sulfuric acid. Many of its components had rusted
65. On or about March 19, 1995, Noranda and GAC agreed to revise the pricing for the balance of their 1995 sales, as well as develop a long-term, post-1995 contract. (GAC SOF ¶ 59.)
66. On March 1, 1996, GAC entered into a new sulfuric acid supply contract with Noranda. (GAC SOF ¶ 60; GAC Ex. 28.)
67. The GAC Contract does not have any “revenue sharing” provisions, customer allocation provisions, or territorial restriction provisions. (GAC SOF ¶ 61; GAC Ex. 28.)
68. At some point, GAC later contracted with the Noranda DuPont Joint Venture for the supply of sulfuric acid. PL SOF ¶ 38.
I. Koch Involvement
69. Plaintiffs allege that, pursuant to agreements with Noranda, Koch Sulfur Products Company or Koch Sulfur Products Company, LLC (collectively “Koch”) closed or scaled back production its sulfuric acid plants, thus removing supply from the market. (Compl. ¶ 41.)
70. Koch operated various sulfuric acid production facilities until 2002, when it completed its exit from the sulfuric acid business. Koch also marketed another company’s sulfuric acid by-product and operated terminals for the receipt and storage of acid purchased for resale or produced internally. (Koch SOF ¶¶ 7, 8.)
71. Koch operated at a relatively small scale compared to the total amount of U.S. sales of sulfuric acid. (Koch SOF ¶ 13.) Its production of sulfuric acid fluctuated every year at each of its facilities. (Koch SOF ¶ 9.)
72. From 1988 to 1990, Koch sought to expand its sulfuric acid trading business. It was able to do so by purchasing additional sulfuric acid from other sources (both voluntary producers and involuntary smelter producers, including those located in Europe) and reselling it in the marketplace. (Koch SOF ¶¶ 10, 23.)
73. Koch closed two sulfuric acid plants during the 15-year putative class period. (Koch SOF ¶ 17.)
74. Koch purchased the Acme, North Carolina plant in 1990 and closed it in 1991. (Koch SOF ¶ 18.)
75. Koch leased the DeSoto, Kansas facility from the United States Army. The DeSoto plant ceased manufacturing sulfuric acid at in June 1999. (Koch SOF ¶¶ 20, 21, 29.)
76. At some point, Koch internally discussed and compared its cost of production to its cost of purchasing sulfuric acid from others, including Noranda. (Koch SOF ¶ 24.)
77. Discussions took place in 1998 and 1999 between Koch and the Noranda DuPont Joint Venture, in which Koch negotiated to buy sulfuric acid from the joint venture. (Koch SOF ¶ 27.)
78. The explicit terms of any of Koch’s agreements with Noranda or Noranda DuPont never included revenue sharing provisions, territorial allocations, customer restrictions, conditions that Koch purchase all its requirements from the seller, or any restrictions on what Koch would charge in the event it resold
J. Noranda/Falconbridge Ownership
79. Falconbridge’s core products were nickel and copper, not sulfuric acid. (Noranda SOF ¶ 19.)
80. Alex Balogh, previously of Noranda Copper, became President of Falconbridge in 1989. (Falconbridge SOF ¶ 21.)
81. From 1994 through 2001, Balogh served as both the Chairman of Falconbridge’s Board of Directors and the Deputy Chairman of Noranda’s Board of Directors. (Falconbridge SOF ¶ 25.)
82. From 1989 through 2003, Noranda had more members on Falcon-bridge’s Board of Directors than any other single entity. (Falcon-bridge SOF ¶ 24.)
83. From 1989 until June 1994, Noranda owned 50% of Falconbridge. Trelleborg AG (“Trelleborg”) owned the other half. (Falcon-bridge SOF ¶ 43, Noranda SOF ¶ 3.)
84. In 1994, Trelleborg sold a large percentage of its shares to the public. Its holding in Falconbridge was reduced to 28%, leaving Noranda (with 46.4%) as Falcon-bridge’s largest shareholder. (Falconbridge SOF ¶ 22.)
85. Between 1994 and 2000, Noranda owned between 46.3% to 54.9% of the company, though it only became a majority shareholder after July 19, 2000. (PI. Ex. 9, 268.) During this period, the remaining shares of Falconbridge were publicly owned with no significant shareholder other than Noranda. (Falconbridge SOF ¶ 23.)
86. Between 2000 and 2003, Noranda’s ownership interest ranged from 54.9% and 59.5%, with no other shareholder owning a significant interest. (Falconbridge SOF ¶ 26.)
87. Since July 1, 1994, Falconbridge’s financials have been fully consolidated in Noranda’s consolidated financial statements. (Falconbridge SOF ¶ 28.)
88. In 2000, Noranda and Falcon-bridge began to integrate a number of departments and business units in order to achieve managerial and operational cost-efficiencies. (Falconbridge SOF ¶ 29.)
89. In June 2005, Noranda and Falcon-bridge merged and the former Noranda and Falconbridge now form one company, under the name of Falconbridge Limited. (Falcon-bridge SOF ¶ 30.)
90. Noranda and Falconbridge were viewed by the market as one single entity. (Falconbridge SOF ¶ 31.)
K. Noranda/Falconbridge Sales Relationship
91. Due in part to stricter environmental regulations during the 1980s, Falconbridge also had to contend with increased amounts of sulfuric acid from its smelting operations. (Falconbridge SOF ¶ 18.)
92. Falconbridge did not have experience in selling sulfuric acid to end users. (Falconbridge SOF ¶ 34.)
93. Noranda had experience marketing its metals directly, as well as in marketing its sulfuric acid in the United States through a group of distributors. Noranda conducted these marketing activities through Noranda Sales Corp., its wholly-owned sales and marketing subsidiary. (Falconbridge SOF ¶ 35.)
95. ' In April 1991, Falconbridge appointed Noranda as its sole sales agent responsible for the sales, marketing and distribution of the sulfuric acid that Falconbridge produced as a consequence of its smelting activities. (Falconbridge SOF ¶ 37.)
96. After the agency appointment, Noranda handled the sales and marketing of Falconbridge’s sulfuric acid until the agency relationship for the sale of acid in the United States terminated in 1998 with the formation of the Noranda DuPont Joint Venture. (Falconbridge SOF ¶ 38.)
97. This agency agreement streamlined the marketing and sale of sulfuric acid produced by the Noranda/Falconbridge system. It was also desirable because Falconbridge did not have a marketing organization for its own acid. (Falconbridge SOF ¶ 39.)
98. In the agency arrangement between Noranda and Falconbridge, Falconbridge retained the title to and ownership of the acid, including the ultimate risk of non-sale of the acid. (Falconbridge SOF ¶ 42.)
L. Noranda DuPont Joint Venture
99. In an effort to optimize the distribution of Noranda-Falconbridge sulfuric acid, the companies considered forming a joint venture with a distributor. The companies believed that the arrangement would eliminate third-party commissions and increase certainty that their by-product acid would be shipped and sold. (Norfalco SOF ¶¶ 10, 12, 13.)
100. Noranda considered several existing distributors as potential joint venture candidates, assessing them for attention to safety, environmental standards, distribution expertise, infrastructure, and access to markets. (Norfalco SOF ¶ 14.)
101. Concerned about antidumping actions by American acid producers, Noranda also considered whether the potential joint venture partner could offer protection from an antidumping action. (Norfalco SOF ¶ 15.)
102. DuPont was the candidate that received the highest overall ranking in Noranda’s evaluation of the strength of potential joint venture partners. (Norfalco SOF ¶ 16.)
103. DuPont saw a joint venture with Noranda as an opportunity to grow its business, by gaining access to substantially higher volumes of product than DuPont could achieve on its own. (Norfalco SOF ¶ 17.)
104. Noranda and Falconbridge hoped to achieve numerous efficiencies through a joint venture with DuPont, including an opportunity to generate savings on freight costs and to supply customers from plants in multiple locations. (Norfalco SOF ¶¶ 19, 20.)
105. A “white paper” drafted by DuPont projected that DuPont would contribute leased transportation equipment, terminal agreements, market access, and technical and business expertise to the Joint Venture, while Noranda would contribute transportation equip
106. In the fall of 1997, Noranda and DuPont hired the independent accounting firm Deloitte & Touche to assist in evaluating the potential economic benefits of a joint venture. The firm was hired so that each party’s competitively sensitive information would be kept from the other party. (Norfalco SOF ¶ 24.)
107. Noranda and DuPont asked Deloitte & Touche to estimate the value gained by forming a direct sales joint venture instead of paying intermediaries (i.e., resellers) to distribute sulfuric acid. Deloitte & Touche foresaw “an average gross [profit] margin of U.S. $9.49 per short ton for direct shipments and U.S. $5.95 per short ton for shipments through terminals.” (Norfalco SOF ¶ 25, 12/1/97 D & T Letter, Ex. 19.)
108. On April 13, 1998, Noranda and DuPont executed a Letter of Understanding regarding the formation of the joint venture, to be named Noranda DuPont LLC (“Noranda DuPont” or “Joint Venture”). Therein, Noranda and DuPont proposed to “assign certain agreements to [the] LLC, including but not limited to reseller agreements, railcar leases, terminal agreements, vessel charter parties, barge leases and truck destination agreements, and to transfer certain other assets to” the Joint Venture. (Norfalco SOF ¶ 26, 4/13/98 Letter of Understanding, Ex. 21. at ND00087881.)
109. On April 15, 1998, the Joint Venture’s Certificate of Formation as a limited liability company was filed in the office of the Secretary of the State of Delaware. (Norfalco SOF ¶ 27.)
110. On June 22, 1998, Noranda and DuPont entered into a short-form Limited Liability Company Agreement. Shortly thereafter, Noranda and DuPont entered into an Amended and Restated Limited Liability Company Agreement, under which Noranda and DuPont each received a fifty-percent interest in the joint venture in exchange for their respective contributions to the Joint Venture of certain assets and cash in the amount of $5,000. (Norfalco SOF ¶ 28.)
111. The LLC Agreement states that “[t]he sole purpose of the Company is to engage in the business of purchasing, transporting, distributing, marketing and selling Acid produced in the United States and Canada, and to engage in any and all lawful activities necessary or advisable in connection therewith or incidental thereto.” (Norfalco SOF ¶ 30, 7/1/98 Amended LLC Agreement, § 3.1 Ex. 24.)
112. The Agreement provides that the Joint Venture “shall do all things necessary to maintain its limited liability company existence separate and apart from each Member and any Affiliate of any Member, including holding regular meetings of the Members and maintaining its books and records on a current basis separate from that of any Affiliate of the Company or any other Person.” (Norfalco
113. The Agreement provides that Noranda DuPont LLC shall not commingle its funds with the participants or maintain joint bank accounts that could be independently accessed by its participants. (Norfalco SOF ¶ 31, 7/1/98 Amended LLC Agreement at § 3.3, Ex. 24.)
114. Noranda and DuPont each agreed to advance the Joint Venture up to $2 million to cover cash deficits. (Norfalco SOF ¶ 29.)
115. The Joint Venture’s profits were split between Noranda and DuPont. The Joint Venture was also set up so that Noranda and DuPont would share in any losses resulting from the operation of the joint venture. (Norfalco SOF ¶ 34.)
116. Noranda and DuPont received a percentage of the estimated margin made by Noranda’s resellers prior to the formation of the Joint Venture based upon the volume of acid that the Joint Venture was able to sell. (Norfalco SOF ¶ 35.)
117. Falconbridge was a non-voting member of the Joint Venture, but participated on the Board and functioned as a full member. (Norfalco SOF ¶ 32.)
118. It was agreed that Falconbridge would participate in Noranda’s share of any distributions from, or contributions to, the Joint Venture on the basis of Falconbridge’s prorata supply of sulfuric acid relative to that of Noranda. (Norfalco SOF ¶ 36.)
119. The Joint Venture’s Board, or “Members’ Committee” included representatives from Noranda and DuPont, as well as a non-voting member from Falconbridge. The Committee met on a regular basis and the management of the joint venture would submit reports on their progress. (Norfalco SOF ¶ 51.)
120. The Joint Venture had a variety of leases assigned to it by involved parties. (Norfalco SOF ¶ 39.) For example, DuPont assigned to the Joint Venture its leases for railcars, barges and tank trucks used to transport sulfuric acid to the joint venture. (Norfalco SOF ¶ 38.)
121. The Joint Venture contracted with DuPont for the services of its sales force and the use of DuPont’s technological support, customer support infrastructure, rail cars, customer contacts and sales experience, and overall logistic and distributional experience. Contracted services included (a) accounting and invoicing, tax, treasury, credit and collection; (b) information systems and network services; (c) risk management; (d) sales; (e) customer service; (f) safety; (g) human resources; and (h) logistics services, such as maintenance of equipment, transportation rate negotiations, freight services, tracking services, leasing of transportation services, contracts with carriers. The Joint Venture compensated DuPont for these services and had financial responsibility for the cost of DuPont’s sales force. (Norfalco SOF ¶¶ 46, 47.)
122. The Joint Venture contracted with Noranda for certain logistics and transportation-related services, including rate negotiations with rail and truck carriers. The Joint
123. Noranda, Falconbridge, and DuPont contributed man-power to the Joint Venture by “seconding” employees to operate the new company. This method allowed the employees to preserve their benefits and pension status they were paid by the respective principals. The companies invoiced the Joint Venture for the salaries and benefits of the seconded employees. It was the job of the seconded employees first and foremost to look out for the best interest of the joint venture. (Norfalco SOF ¶ 43.)
124. Noranda and Falconbridge contributed personnel to the Joint Venture with experience in acid sales and transportation logistics and management. Seconded personnel included Kim Ross, formerly the head of Noranda’s sulfuric acid business; Geoff Cowell, formerly marketing manager of Noranda’s sulfuric acid department; Paul Shaw, brought in to improve business relationships; Tom Kim, who had sales experience; and Joseph Plut. Ross served as president of the Joint Venture from 1998-2000, after which Shaw took over. Falconbridge seconded John Pellegrini, who was involved in supply chain and inventory management for the Joint Venture. (Norfalco SOF ¶ 44.)
125. DuPont employees seconded to the Joint Venture included John Hammond, formerly vice president of marketing and operations for DuPont’s sulfuric acid business; James Pawloski, who had prior experience at DuPont with business development; and Mark Myers, who served as a business analyst for DuPont. Pawloski was involved in marketing for the Joint Venture and Myers served as a product manager, Myers had price authority for acid sales and worked with the sales force for to identify new customers and maintain existing ones. (Norfalco SOF ¶ 45.)
126. Noranda, DuPont and Falcon-bridge each entered into separate sulfuric acid supply agreements with the Joint Venture. Noranda and Falconbridge each agreed to sell 100% of their respective acid productions to the Joint Venture. For its part, DuPont agreed to sell all of the acid it manufactured it its plants with certain specified exceptions for acid produced for internal DuPont consumption. (Norfalco SOF ¶ 49.)
127. Under their respective supply agreements with the Joint Venture, Noranda, DuPont, and Falconbridge each retained the right to increase or decrease the amount of sulfuric acid available for delivery to the Joint Venture at any or all of their plants, and to acquire or construct additional sulfuric acid production facilities. (Norfalco SOF ¶ 50.)
128. The Joint Venture began operations on January 1, 1999. Though it had been in existence since July 1998, servicing the pre-existing distribution contracts assigned to it, the bulk of the pre-existing contracts ended and the new ones began at the beginning of 1999. (Norfalco SOF ¶ 52.)
129. The Joint Venture had its own office in Chadds Ford, Pennsylva
130. The Joint Venture entered into contracts under its own name. (Norfalco SOF ¶ 54.)
131. The Joint Venture was responsible for setting the resale price of the sulfuric acid it purchased from Nor anda, DuPont, and Falcon-bridge. (Norfalco SOF ¶ 55.)
132. On average, sulfuric acid contract and transaction prices fell after the formation of the Joint Venture. (Norfalco SOF ¶¶ 66, 71.) The cause of the decline is disputed.
133. The Joint Venture was able to negotiate favorable rail and transportation contracts, and was successful in lowering transportation costs. (Norfalco SOF ¶ 60.)
134. The Joint Venture relied on DuPont’s national sales force, which handled a variety of chemical products. The Joint Venture argues that its sulfuric acid customers benefítted from the “one stop shopping” it was able to provide. (Norfalco SOF ¶¶ 57, 59, 61.)
135. The Joint Venture also contends that their supply of acid was less susceptible to events like strikes and maintenance shut downs. DuPont’s capabilities as a voluntary producer of sulfuric acid gave the Joint Venture “backup capability” if the supply of by-product acid was held up. (Norfalco SOF ¶ 58.)
136. As a new entrant, the Joint Venture competed with other distributors of sulfuric acid for business that previously had not been the subject of competition. (Norfalco SOF ¶ 65.)
137. Documents in the files of other companies engaged in the marketing and distribution of sulfuric acid reflect a perception that the Joint Venture was lowering prices. (Norfalco SOF ¶ 67.)
138. Koch’s Samuel Murray wrote in a February 1999 memorandum that PVS had “indicated that the JV is lowering pricing by $8-10/ton.” (Norfalco SOF ¶68, 2/99 Murray Memo, Ex. 46.)
139. At some facilities, Plaintiff National Alum purchased sulfuric acid from the Joint Venture at a price that was $5 less per ton than the price for which it had purchased sulfuric acid from its previous supplier. (Norfalco SOF ¶ 69.)
140. Plaintiff Old Bridge purchased sulfuric acid from the Joint Venture at a price that was lower than the price for which it had purchased sulfuric acid from its previous supplier. (Norfalco SOF ¶ 70.)
141. In the early months of 1999, the Joint Venture experienced a short term inventory bubble. Several factors contributed to the short term inventory bubble, including the following: (1) the Joint Venture’s attempts to initiate its acid delivery operations and integrate the assets contributed by Noranda, Falconbridge and DuPont; (2) severe winter weather conditions preventing the shipment of acid from Canada and the return of rail cars that were needed to ship acid from the smelters; (3) vigorous competition and an effort to lock up customers by other sellers of acid in response to the an
142. The Joint Venture took several steps to control this inventory problem that were unrelated to affecting production, including:
(1) making efforts to secure additional short term space and maximize existing storage facilities;
(2) trying to unload and return railcars as expeditiously as possible; and (3) lowering prices to make additional sales. (Norfalco SOF ¶ 73.)
143. Rather than manufacturing acid that the Joint Venture could not sell or store, DuPont reduced production at one or, at most, two of its sulfuric acid plants. (Norfalco SOF ¶ 75.)
144. Accordingly, DuPont reduced its sulfuric acid production by a maximum of 20,000 to 25,000 tons over a two-month period. (Norfalco SOF ¶ 76.)
145. The Joint Venture decided that it would, on a temporary basis, ship acid that it had purchased from Noranda and Falconbridge to customers that had previously received acid procured from DuPont. The Joint Venture consulted with DuPont regarding this decision. (Norfalco SOF ¶ 74.)
146. The Joint Venture was successful in its efforts to address the temporary inventory bubble. (Norfalco SOF ¶ 77.)
147. In May 2001, Noranda redeemed DuPont’s interest in the Joint Venture. DuPont withdrew due to dissatisfaction with the Joint Venture’s financial results. DuPont also had concerns about the large “environmental footprint” associated with the Joint Venture’s transportation of over 3 million tons of a hazardous product. (Norfalco SOF ¶ 79.)
148. Immediately after Noranda redeemed DuPont’s interest in the Joint Venture, the operating entity continued in the form of NorFalco LLC, a company owned by Noranda and Falconbridge. (Norfalco SOF ¶ 80.)
M. Boliden Involvement
149. From 1989 until 1994, Trelleborg owned 50% of Falconbridge. (Falconbridge SOF ¶ 43.)
150. Trelleborg also owned 100% of Boliden Intertrade, a world-wide marketer and trader of sulfuric acid. (Falconbridge SOF ¶ 44.)
151. In 1990, Boliden purchased Tennessee Chemicals Company (“TCC”), a manufacturer and marketer of sulfuric acid. (Falcon-bridge SOF ¶ 44.)
152. TCC had a sulfur-burning acid plant located in Copperhill, Tennessee, and Boliden had considerable infrastructure and expertise in marketing sulfuric acid in the southeastern United States. (Falconbridge SOF ¶ 45.)
153. In 1992, Noranda Sales entered into an agreement with Boliden by which Boliden distributed Falcon-bridge acid to customers in the United States. (Falconbridge SOF ¶ 47.)
154. Under the agreement, Falcon-bridge paid Boliden a commission on sales of Falconbridge acid to Boliden customers. Falconbridge received whatever price the customer paid for the acid less Boli
155. Boliden was insulated from price changes in the marketplace because it received its commission per ton regardless of the price to the consumer. (Falconbridge SOF ¶ 49.)
156. In March, 1992, Boliden installed a new sulfur burner at Copperhill, Copperhill’s nameplate production capacity for sulfuric acid production with this new sulfur burner increased to approximately 900,-000 tons of sulfuric acid per year. (Falconbridge SOF ¶ 52.)
157. In early 1995, Boliden told Noranda and Falconbridge that it may increase its production at its Copperhill facility to actually achieve its stated nameplate capacity of 900,000 tons of acid per year. (Falconbridge SOF ¶ 53.)
158. In May 1995 Boliden reached its production capacity at its Copper-hill facility achieved its stated nameplate capacity of 900,000 tons of acid per year. (Falconbridge SOF ¶ 54.)
N. Zone Contracts
159. Falconbridge traditionally relied on Boliden and Marsulex to sell its output of sulfuric acid. (Falconbridge SOF ¶ 57.) However, Noranda grew dissatisfied and concerned about Marsulex’s performance. (Falconbridge SOF ¶¶ 58, 59.)
160. In or around 1995, Noranda, as Falconbridge’s agent for the sale of sulfuric acid, restructured Falconbridge’s method of distribution in the United States. (Falcon-bridge SOF ¶ 56.)
161. Noranda divided the northeastern half of the U.S. into 16 geographic zones, and invited certain prequalified resellers to offer to sell Falconbridge acid delivered within those zones. (Falconbridge SOF ¶ 60.)
162. Noranda offered the opportunity to bid on the zone contracts to distributors that Noranda believed “had efficiencies and goodwill for marketing acid in different geographic areas or infrastructure different areas [sic].” (Falcon-bridge SOF ¶ 62, Ross Dep. at 171:1-12, Ex. 17.)
163. Noranda established a number of criteria in determining which distributors would be prequalified to bid. The criteria “included things like a reseller’s safety history, their infrastructure that they had in place that would be used to resell Noranda-Falconbridge sulfuric acid, their sales experience, [and] their knowledge of [Noranda and Falconbridge’s] products.” (Falconbridge SOF ¶ 60, Thomas Dep. at 131:19-132:10, Ex. 11.)
164. The zone contracts did not prevent the resellers from selling sulfuric acid in any geographic location that the reseller wished. (Falconbridge SOF ¶ 66.)
165. The zone contracts contained no restrictions whatsoever with regard to sales of sulfuric acid manufactured by companies other than Noranda or Falconbridge. (Falconbridge SOF ¶ 67.)
166. Marsulex, PVS, Boliden, and DuPont worked with Noranda under zone contracts. (Falconbridge SOF ¶¶ 64, 69.)
167. Plaintiffs allege that negotiations surrounding the zone contracts
O. Timeline
168. Fertecon is a widely-distributed trade publication that dates to the 1980s is widely read by participants in the sulfuric acid industry. (Boliden SOF ¶ 4.)
169. Representatives of many of the Plaintiffs would read publications such as Chemical Marketing Reporter, Chemical Week, and Purchasing Magazine to stay knowledgeable about the sulfuric acid industry. (Boliden SOF ¶¶ 5-9.)
170. Noranda and PVS entered into a contract regarding facilities in Copley, Ohio that became effective on March 11, 1988. The March 11, 1988 contract between Noranda and PVS regarding facilities in Copley, Ohio was terminated by December 31, 1998. (Boliden SOF ¶ 11.)
171. Noranda and Delta entered into a contract regarding facilities in Searsport, Maine that became effective on October 6, 1989. The October 1989 contract between Noranda and Delta was no longer in effect as of March 1,1996, when Noranda entered into a separate contract with GAC, which had bought Delta’s assets on March 9, 1994. (Boliden SOF ¶ 12.)
172. On August 1, 1990, Noranda and PVS-Nolwood Chemicals, Inc. (“PVS Nolwood”) entered into a contract regarding facilities in Bay City, Michigan. (Boliden SOF ¶ 13.)
173. Noranda and Koch entered into a purchase contract on June 27, 1990. (Boliden SOF ¶ 14.)
174. Noranda and Boliden entered into a contract that was effective on January 1.1992. The January 1, 1992 contract between Noranda and Boliden was terminated by December 31, 1998. (Boliden SOF ¶ 15.)
175. Noranda and DuPont entered into a contract regarding facilities in Grasselli, New Jersey that became effective on or about April 1, 1992. The April 1992 contract between Noranda and DuPont was terminated by December 31, 1998. (Boliden SOF ¶ 16.)
176. From 1986 through 1999, it was widely acknowledged and understood throughout the sulfuric acid industry and its publications that large volumes of smelter sulfuric acid were entering the American market from Canada. It was also acknowledged and understood that Noranda was actively involved in developing relationships with companies involved in the American sulfuric acid regarding this development. (Boliden SOF ¶¶ 17-77.)
177. In January 2003, the first Canadian media reports appeared regarding an investigation by the U.S. Department of Justice into anticompetitive activities involving sulfuric acid. The articles arose after the Royal Canadian Mounted Police and Competition Bureau raided Noranda and Falconbridge offices, seizing thousands of documents. (PI. SOF ¶¶ 171-173.)
LEGAL STANDARD
Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to
When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.
See Schuster v. Lucent Tech., Inc.,
ANALYSIS
Plaintiffs claim that Defendants violated the Sherman Act by engaging in collusive and anticompetitive behavior between 1988 and 2001. According to Plaintiffs, Noranda and Falconbridge negotiated agreements in which eo-Defendants could access cheaper Noranda-Falconbridge acid if they shut down or curtailed their own voluntary production of sulfuric acid. Profit-sharing arrangements allegedly served to distribute the proceeds of this collusion. Dominant producers Noranda, Falcon-bridge, and DuPont later formed a joint venture that virtually controlled the merchant market supply of sulfuric acid. DuPont allegedly restricted its production at the Joint Venture’s direction. Overall, Plaintiffs allege that these arrangements enabled Defendants to control and reduce the industry-wide supply of sulfuric acid; stabilize, raise, or otherwise fix prices; and allocate market share, customers, and profits among themselves to eliminate competition.
Defendants contend that closing sulfuric acid production facilities was not, as Plaintiffs argue, a condition of any agreements to purchase Noranda-Falconbridge acid. Defendants generally argue that older facilities were shut down because the capital costs of maintaining them or complying with environmental regulations made continued voluntary production economically unfeasible. Noranda and Falconbridge further argue that DuPont’s production was only temporarily reduced to deal with a short-term inventory bubble.
I. Choice of Law
As an initial matter, the Court must identify the governing law in this case. 28 U.S.C. § 1407 authorizes the Judicial Panel on Multidistrict Litigation to consolidate, by transfer of venue to a single district, civil actions pending in different federal courts. When cases are based on diversity of citizenship, the transferee court must apply the state laws that the transferor forums would have, according to that forums’ choice-of-law rules.
See In re Data General Corp. Antitrust Litigation,
With cases based on federal question jurisdiction, however, adopting the law of multiple transferor circuits poses problems. As the D.C. Circuit observed in
In re Korean Air Lines Disaster,
“because there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory.”
Although the Seventh Circuit has yet to decide which law governs federal claims in cases transferred under 28 U.S.C. § 1407, it has adopted the rationale of
Korean Air
when resolving the question under 28 U.S.C. § 1404(a), which authorizes district courts to transfer cases for reasons of convenience.
See McMasters v. U.S.,
II. Statute of Limitations
Before proceeding to the merits of Defendants’ motions, the Court must address their assertion that all Sherman Act claims fail due to the expiration of the statute of limitations. Antitrust claims are subject to a four-year statute of limitations period. 15 U.S.C. § 15b. Generally, an antitrust claim “accrues and the statute begins to run when a defendant commits an act that injures a plaintiffs business.”
Zenith Radio Corp. v. Hazeltine Research, Inc.,
Defendants assert that the Seventh Circuit’s interpretation is contrary to Supreme Court precedent, and that the proper standard for accrual of the statute of limitations in antitrust suits is the incident of injury, rather than the discovery of the harm. Under Defendants’ approach, most of Plaintiffs’ claims are time-barred because all but one of the challenged contracts expired more than four years before Plaintiffs acted. Defendants’ reading of Supreme Court jurisprudence cannot change the fact that, as discussed above, Seventh Circuit precedent governs this multidistrict litigation. It is for the Seventh Circuit or the Supreme Court to overturn that precedent, not this Court. Therefore, Defendants’ initial argument fails.
Assuming for the sake of argument that the discovery rule does not apply to antitrust claims, genuine issues of material fact would remain as to whether Plaintiffs’ accrual dates should be tolled on the grounds of fraudulent concealment. In an antitrust case, the doctrine of fraudulent concealment “presupposes that the plaintiff ... should have discovered[ ] that the defendant injured him, and denotes efforts by the defendant ... to prevent the plaintiff from suing in time.”
Copper Antitrust,
As grounds for tolling under fraudulent concealment, Plaintiffs point to announcements made by Defendants throughout the 1990s that go beyond mere failures to disclose or denials of -wrongdoing.
See
PI. Ex. 30; PI. Ex. 75; PI. Ex. 154; PI. Ex. 155; PI. Ex. 157. These statements go so far as to offer alternative, and allegedly false, explanations for Defendants’ decisions to shut down facilities or raise prices. While Defendants contend that their announcements are honest disclosures supported by market data, the Court must draw all reasonable inferences in Plaintiffs’ favor where matters are disputed. Defendants’ public statements create triable issues of fact as to whether Defendants, through misleading public statements, affirmatively concealed agreements to reduce industry-wide output or fix prices.
See Copper Antitrust,
Fraudulent concealment aside, Defendants contend that this action remains time-barred because a reasonably diligent plaintiff should have been aware of all relevant aspects of the alleged anticompetitive behavior early on.
See Cathedral of Joy Baptist Church v. Village of Hazel Crest,
In re Copper Antitrust Litigation (“Copper Antitrust”)
guides the Court’s ensuing analysis.
As in
Copper Antitrust,
the publications cited by Defendants fail to make any mention of collusive behavior that could potentially give rise to liability under the Sherman Act. The reports merely expound upon common knowledge: namely, that
What can be established with certainty is that, in January of 2003, the Canadian Government raided Noranda and Falcon-bridge offices for a U.S. federal investigation into possible anticompetitive activity. The Canadian news media immediately pounced on the event, producing ample coverage of the potentially illegal nature of Defendants’ agreements. From that point on, Plaintiffs had undeniable access to the facts required to support an antitrust suit against Defendants. If the limitations period began accruing at that time, Plaintiffs would have had until January 2007 to file their complaints. Plaintiffs’ cases, all filed before September 16, 2003, were brought well within the applicable four-year statute of limitations.
The record does not indisputably show that, prior to 2003, information detectable upon diligent inquiry would have put Plaintiffs on notice of the alleged conduct forming the basis of this case. The point at which a reasonable person would have appreciated the need for diligent inquiry, or whether a resulting investigation would have produced useful results, are ultimately questions of fact for a juror to decide.
See Morton’s Market, Inc. v. Gustafson’s Dairy, Inc.,
III. The Sherman Act
The Court now addresses the merits of Defendants’ motions for summary judgment on Plaintiffs Sherman Act claims.
A. Elements of a Claim under § 1
Section 1 of the Sherman Act prohibits any “contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. To prevail on a
1. Contract, Combination, or Conspiracy
While courts at summary judgment construe all reasonable inferences in the light most favorable to the nonmovant, an exception is made for lawsuits alleging conspiracies to violate § 1 of the Sherman Act.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
Courts in the Seventh Circuit divide this inquiry into two parts. A court first asks if the plaintiffs evidence of conspiracy is ambiguous, that is, if it is as consistent with the defendants’ permissible independent interests as with an illegal conspiracy. If so, the court looks for any evidence that tends to exclude the possibility that the defendants were pursuing these independent interests.
Market Force Inc. v. Wauwatosa Realty Co.,
a. Defendants Noranda, Falconbridge, PVS, Koch, and Boliden
While Defendants assert that the facts cannot reasonably be construed as proof of collusion, evidence pointing to cooperation among Noranda, Falconbridge, PVS, Koch, and Boliden
8
does not conclusively favor either side. Defendants’ evidence admittedly generates questions of fact on the matter. As they see it, Noranda and Falconbridge simply outsourced the distribution of a by-product to voluntary producers who, faced with the
The inquiry does not end there, though. Plaintiffs have further submitted evidence tending to exclude the possibility of independent action on the part of Defendants. The most damaging piece of evidence is Noranda’s “Sulphuric Acid 1989 Plan,” in which the company articulates its continuing strategy to “approach[] sulphur burning acid producers to purchase acid from Noranda and thereby shutdown sulphur burning acid plants. It is a strategy of displacement by agreement.”
This strategy is being followed so as not to force an oversupply into a balanced market with predictable price disruption
and to minimize the risk of inviting trade action by U.S. authorities.” PI. Ex. 13 ¶ 12 (emphasis added). Evidence pointing to compliance with this plan on the part of Defendants Koch, Boliden, PVS, and Falconbridge only strengthens the inference of collusive activity.
See, e.g.,
PL Ex. 54 at KSP00062754 (Koch memo) (“Koch could displace acid currently in the market with Noranda acid, so as to maintain industry structure.”); PL Ex. 42 (Boliden internal letter) (“Noranda will undoubtedly continue to press the Copperhill shutdown issue with Boliden.”); PL Ex. 39 at 2 (Falconbridge memo) (“Boliden have just recently conceded they will cut back Copperhill by 112,500 MT and move only 50% (112,500 MT) of our tonnage to Florida.”); Pl. Ex. 40 at 2; Pl. Ex. 41 at 8 (Falconbridge memo) (“Boliden will reduce their sulphur burning acid production to purchase acid from KCM7FL.”); PL Ex. 14 at 8 (Noranda Report) (“Agreement has been reached whereby PVS will close this facility and receive all their acid requirements from Noranda.”); Pl. Ex. 27 at 166784 (PVS/Noranda Contract) (“PVS agrees to arrange to have its affiliate discontinue production of sulphuric acid at its Bay City, Michigan acid plant no later than October 15, 1990.”); PL Ex. 13 at 13 (Noranda Report) (“Confirmed contracts with PVS in Copley, Ohio ... involving closure of sulphur
Defendants constantly fault Plaintiffs for failing to produce direct evidence revealing anything more than arms-length negotiations and independent make-buy decisions. As shown above, Plaintiffs have submitted circumstantial evidence tending to show that Defendants’ negotiations went beyond commerce in acid to produce a cleverly disguised conspiracy. Plaintiffs are not limited to proving • their claims through direct evidence. The Court must deny summary judgment if the evidence, whether directly or indirectly indicating guilt, tends to exclude the possibility of independent action.
See In re High Fructose Com Syrup Antitrust Litig.,
As Defendants accurately state, none of the evidence
necessarily
excludes the possibility that Defendants arrived at make-
Defendants further assert that evidence of separate agreements between Noranda and American producers is insufficient to support the inference that they agreed to a single and common scheme. For their argument, Defendants overstate the holding of
Spectators’ Communication Network Inc. v. Colonial Country Club,
which holds that hub-and-spoke conspiracies wherein a core conspirator (at the hub) stands in a vertical relationship with co-conspirators (the spokes) cannot qualify as a horizontal combination in violation of § 1 without evidence that the competing co-conspirators agreed among themselves.
In any event, Plaintiffs’ evidence can reasonably be read to indicate a single conspiracy among Defendants. A classic hub-and-spoke conspiracy involves a “rim” connecting the spokes, such that the spokes “must have been aware of each other and must do something in furtherance of some single, illegal enterprise.”
U.S. v. Haynes,
None of Defendants’ remaining case law supports a grant of summary judgment on this record. The cases only confirm that antitrust law's heightened standard of proof serves to weed out factually or economically implausible claims. In
Matsushita,
the Supreme Court approved summary judgment on a claim alleging a conspiracy to charge higher-than-competitive prices because the alleged restraint “simply [made] no economic sense” and defendants lacked “any rational motive to conspire.”
See 475 U.S.
at
587, 597,
Defendants’ attempt to characterize the alleged conspiracy as “economically implausible” fails. Plaintiffs allege and produce evidence to support the existence of a garden-variety output limitation scheme.
See, infra,
Section IILB.l.b. The actual and probable anticompetitive effects of such conspiracies are well established. Moreover, unlike the above cases, Plaintiffs in the instant case do not solely rely on nebulous accusations of cooperation. Plaintiffs have submitted tangible evidence against each Defendant
15
tending to exclude the possibility of unilateral action, whether in the form of external correspondence or internal memoranda.
16
It is un
b. Defendant GAC
Defendant GAC, the purchaser of Delta Inc.’s assets, paints a much more compelling portrait of its lack of collusive behavior. On October 6, 1989, Delta and Noranda entered into a contract for the sale of smelter acid satisfying the total requirements of Delta’s Searsport, Maine facility until 1996. GAC Ex. 23 at 2, 6 (Delta-Noranda contract). Delta shut down the Searsport facility in 1988. GAC purchased most of Delta’s assets on March 8, 1994, after which Delta survived as a separate entity. At the time of the acquisition, the Searsport facility was inoperable, with many parts either rusted or missing. Searsport was therefore not valued in or considered as part of GAC’s acquisition. GAC did retain Delta management in the sulfuric acid business, and assumed the Delta-Noranda contract for the remainder of its term. See PI. Ex. 26 at NFD106333 (GAC-Delta contract). On March 1, 1996, GAC entered into a new supply contract with Noranda. GAC later contracted with the Noranda DuPont Joint Venture for the supply of sulfuric acid.
In Plaintiffs’ brief in opposition to GAC’s motion to dismiss, they promised to establish through discovery that GAC acquired Delta with knowledge of the DeltaNoranda conspiracy and with the intent to benefit from that illegal agreement. As Plaintiffs observed, “[i]t is well recognized that a co-conspirator who joins a conspiracy may, in the antitrust context, be charged with the preceding acts of its co-conspirators.”
Havoco of America, Ltd. v. Shell Oil Co.,
Plaintiffs further argued that GAC may have assumed liability for Delta’s past actions under exceptions to the common law rule against successor liability. In most American jurisdictions, a purchaser of assets does not assume the seller’s liabilities “even if all the assets are transferred by the sale so that in effect the entire business has been sold, and the purchaser intends to continue it as a going concern.”
E.E.O.C. v. G-K-G, Inc.,
The GAC-Delta Asset Purchase Agreement undisputedly provides that, except for certain specific “Assumed Liabilities,” GAC “shall in no event assume or be responsible for any liabilities, liens, security interests, claims, obligations, or encumbrances of [Delta].” GAC SOF ¶ 51, GAC Ex. 26 ¶ 2.2. As per the explicit language of the contract, GAC did not assume liability for antitrust infringements. Plaintiffs have produced nothing to refute the validity of the Asset Purchase Agreement. Delta’s complicity in the alleged conspiracy-— to which Plaintiffs devote the bulk of their argument — is therefore irrelevant to the question of whether summary judgment is appropriate on GAC’s motion.
At summary judgment, Plaintiffs have apparently shifted the theory of their case. Plaintiffs now contend that the following factors combine to produce a reasonable inference that GAC consciously joined the conspiracy allegedly entered by Delta: (1) GAC “stepped into Delta’s shoes” by knowingly and intentionally assuming the Delta-Noranda Agreement with the knowledge and consent of Noranda, and operating under it until at least March 1996; (2) Delta personnel continued with GAC’s acid business; and (3) GAC never rendered the Searsport facility operational and never produced sulfuric acid.
Plaintiffs cite no authority for their position that an asset purchaser knowingly joins in a seller’s antitrust conspiracy as a matter of law by assuming an existing contract, maintaining the seller’s personnel, and deciding against restarting production at inoperable plants. The conspiracy alleged by Plaintiffs was to reduce output to stabilize prices.
17
There is no evidence indicating that GAC ever made a decision to limit output, as it is undisputed that GAC never produced acid. As for the price fixing claim, Plaintiffs cite a GACNoranda communication to show that GAC was upset at being underpriced and outbid by Marsulex, another reseller of Noranda-Falconbridge acid.
See
Marsulex Ex. 16; Def. Reply Ex. C, Poure Dep. At 52:14-55:9. To the extent that this implies coordination among GAC, Noranda, and Marsulex regarding the pricing of Noranda-Falconbridge acid, such cooperation constitutes a vertical price restraint on intrabrand competition; GAC functioned as a reseller of Noranda acid and never as a competing producer. As discussed at length in Sections III.B.l.a and III.B.4 of this opinion, antitrust law is concerned with interbrand competition among horizontally aligned competitors. It does not condemn vertical cooperation between suppliers and distributors as illegal
per se.
Vertical price restraints are properly analyzed under the rule .of reason. For reasons stated later in this opinion, challenges to such restraints cannot survive summary judgment because Plaintiffs have waived
In sum, Plaintiffs have produced neither direct nor circumstantial evidence that reasonably tends to prove that GAC was aware of, much less made a conscious commitment to enter into, an illegal conspiracy with co-Defendants.
See Monsanto,
2. Unreasonable Restraint of Trade
Depending on the nature of an alleged restraint, the reasonableness of a restraint of trade is judged according to one of two standards.
Denny’s Marina,
Claims under § 1 of the Sherman Act are generally evaluated under the rule of reason, unless the challenged action falls into the narrow category of
per se
violations.
Wilk v. American Medical Ass’n,
Since Plaintiffs have waived the argument, the Court need not consider whether a factual dispute exists as to the prevailing parties under the rule of reason.
See Laborers’ Int’l Union of N. Am. v. Caruso,
The Supreme Court has cautioned against the over-zealous application of the
per se
label.
Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Ass’n, Inc.,
Because the parties disagree on virtually every aspect of the multi-step analysis required to determine the appropriateness of the per se rule, the Court addresses these arguments separately in Section III.B of this opinion. As the Court’s reasoning will show, outstanding factual disputes preclude a decision at this point on the applicable legal rule in this case. 19
3. Accompanying Injury
Seeing as multiple Defendants have raised the issue, the Court shall first touch on the accompanying injury element. To survive summary judgment, Plaintiffs must also show that they suffered a cognizable injury resulting from Defendants’ alleged conspiracy.
See Matsushita,
Calculating damages presents a separate challenge. A plaintiff seeking damages must prove that his financial loss was caused by the unlawful acts of the defendant.
MCI Communications Corp. v. American Tel. and Tel. Co.,
Although Defendants argue that this litigation may not proceed because Plaintiffs cannot prove antitrust injury, the substance of Defendants’ arguments targets Plaintiffs’ damages calculations. Defendants assert that Plaintiffs’ causation expert and statistician rely on faulty analytical methods or mere guesswork. But the arguable inaccuracy of Plaintiffs’ damages calculations is not grounds for granting summary judgment. The credibility and persuasiveness of Plaintiffs’ expert witnesses are issues best left to a factfinder. For the purposes of the instant motions, what matters is that Plaintiffs’ satisfaction of the accompanying injury requirement hinges on the success of their per se case. Until a factfinder is given an opportunity to assess the disputed facts underlying Plaintiffs’ per se theory, the issue of antitrust injury is not ripe for summary judgment.
B. Per Se Treatment vs. Rule of Reason
Defendants generally argue that the unique nature of the sulfuric acid industry, the complexity of Defendants’ relationships, and the procompetitive effects of their actions prevent the Court from holding that their actions “would always or almost always tend to restrict competition and decrease output,” so as to warrant
per se
treatment.
BMI,
The cumulative weight of Defendants’ evidence may certainly bear fruit at trial, when a factfinder must decide whether Plaintiffs have satisfied their burden of proof. At the summary judgment stage, however, Defendants’ efforts are misdirected. At this stage of the proceedings, is not this Court’s task to determine whether Defendants’ conduct would be
1. Horizontal Price Fixing as a Per Se Violation
Per se
analysis calls for a distinction between horizontal and vertical arrangements. Only a small class of “manifestly competitive” horizontal agreements among competitors falls under the
per se
rule. All other horizontal agreements, and all vertical ones, have been deemed potentially procompetitive and are thus judged under the rule of reason.
See Leegin Creative Leather Products, Inc. v. PSKS, Inc.,
Horizontal price-fixing is one of the clearest
per se
violations of the Sherman Act.
See Texaco v. Dagher,
a. Horizontal vs. Vertical Relationships
“An arrangement is said to be ‘horizontal’ when its participants are (1) either actual or potential rivals at the time the agreement is made; and (2) the agreement eliminates some avenue of rivalry among them.” 11 H. Hovenkamp, Antitrust Law ¶ 1901b, p. 203 (2d ed.2005). Defendants claim that, because Noranda and Falconbridge were neither actual nor potential competitors of the American co-Defendants, their relationships were vertical rather than horizontal in nature, and thus subject to the rule of reason.
Noranda and Falconbridge depict themselves as suppliers in desperate need of distributors, rather than producers in competition with other producers. Noranda, the exclusive sales agent for Falconbridge, claims that it lacked the capacity to compete against American co-Defendants because it had no distribution infrastructure with which to disseminate sulfuric acid. Plaintiffs not only dispute that Noranda lacked the capacity to compete with co-Defendants, but they also assert that Noranda actually competed against them. See PI. Ex. 5 at 1, 3, 4 (Noranda marketing-video) (advertising “dedicated information and transportation networks for total customer service” and “Noranda’s single car fleet of 200 line railcars to the 40-car unit trains dedicated to a large volume of sulfu
Alternatively, Defendants argue that their arrangement belongs to the class of horizontal-vertical hybrids subject to the rule of reason. In support of this position, they cite cases applying the rule of reason whenever the general lack of experience with hybrid vertical/horizontal arrangements, like dual-distributorships, counseled against
per se
treatment.
See, e.g., Krehl v. Baskin-Robbins Ice Cream Co.,
According to Noranda’s own briefs, it approached American acid producers as a matter of necessity, seeking to offload large quantities of the commodity without bearing the risk of antidumping actions associated with direct sales. As such, whether or not Noranda had the capacity for direct sales at the time, it arguably could have developed that capacity, as their ultimate purpose was the sale of acid to end users. See PL Ex. 97 at NFD206607 (Noranda DuPont presentation) (“If Noranda and DuPont are unable to conclude agreement on joint venture then Noranda will withdraw & will set up its own U.S. company to sell directly to customers”). Noranda’s strategy was motivated by concerns about antidumping actions and low prices — there is no indication that distribution, transportation, or related problems were foremost in the company’s mind. Ultimately, the evidence can be reasonably read to infer that Noranda and Falconbridge, upon realizing that the market would not accommodate their product at the price levels of the time, placed themselves in a vertical relationship with co-Defendants as a matter of necessity, negotiating with the American producers to become distributors when they might not have otherwise done so. The Canadian acid producers essentially went through a series of communications to adjust the market to their good. While the resulting conspiracy, as alleged, incorporates vertical elements as a vehicle for restraining trade, it substantively amounts to the concerted action of actual or potential competitors eliminating some avenue of rivalry among them.-
All this is to say whether Noranda and Falconbridge stood in a horizontal, vertical, or hybrid relationship with co-Defendants remains a triable issue of fact. Defendants cannot prevail on the position that their agreements were solely vertical and thus necessarily governed by the rule of reason.
Defendants observe on numerous occasions that a given business practice does not earn
per se
illegality until courts have had considerable experience with it.
See Topco,
Defendants thus overreach when accusing Plaintiffs of formalistic literalism in their use of the terms “price fixing” and “output restrictions” to Defendants’ conduct. In
Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc.
(“BMI”), the Supreme Court contrasted the use of “price fixing” in the literal sense — as when two partners set a common price for their goods and services — against “price fixing” as a descriptive term for anticompetitive practices commonly considered
per se
illegal.
BMI,
Plaintiffs have alleged conduct characteristic of price fixing in the substantive, rather than literal sense. Conspiring to reduce industry output as a means of stabilizing or raising prices is prototypical of conduct that has time and again been condemned by courts as
per se
illegal.
See, e.g., U.S. v. Socony-Vacuum Oil Co.,
Defendants continually confuse their version of the facts, which does not involve archetypal price fixing behavior, with the factual story generated when all reasonable inferences are drawn in Plaintiffs’ favor. While this tactic pervades all arguments in Defendants’ briefs, it fails in each instance. In particular, a recurring theme in Defendants briefs intones that per se treatment is inappropriate because the undisputed facts remain consistent with Defendants’ claims. Defendants fail to acknowledge that neither are the undisputed facts inconsistent with Plaintiffs’ interpretations, which additionally benefit from favorable inferences.
For example, consider Defendants’ repeated assertions that the terminated plants were among the least profitable operated by Defendants, that Noranda’s acid was relatively cheap, and that make-buy analyses favored displacement.
See
PVS Br. at 11; Koch Br. at 5; Falconbridge Br. at 7; Noranda Br. at 5. The undisputed nature of these facts does not preclude the possibility that facilities were shut down pursuant to a collusive agreement to limit production. Firstly, as noted by Plaintiffs, “competitors would be most amenable to closing less profitable plants, not their most profitable ones. There is no requirement under the antitrust laws
While Defendants frequently refer to their financial constraints as an element in their defense, an unforgiving market offers no excuse for violating antitrust laws. In writing the Sherman Act, Congress did “not permit[ ] the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.”
Socony-Vacuum,
The facts of
U.S. v. Socony-Vacuum Oil Co.,
“The whole scheme was carefully planned and executed to the end that distress gasoline would not overhang the markets and depress them at any time. And as a result of the payment of fair going market prices a floor was placed and kept under the spot markets .... a floor which served the function of increasing the stability and firmness of market prices. That was repeatedly characterized in this case as stabilization. But in terms of market operations stabilization is but one form of manipulation. And market manipulation in its various manifestations is ... a factor which prevents the determination of ... prices by free competition alone.” Socony-Vacuum,310 U.S. at 220-23 ,60 S.Ct. 811 . 22
Moving on, Defendants rightly note that, due to environmental regulations and the nature of the material, Noranda indisputably lacked a viable alternative to selling its acid, other than shutting down smelting operations. But Plaintiffs do not condemn the sale of the acid, merely the unlawful conspiracy that allegedly accompanied those sales. Plaintiffs allege that Noranda could have sold the acid in a legitimate manner, but opted not to. As an example, Plaintiffs point to the Noranda/Delta agreement, claiming that Noranda could have won Delta’s largest customer, Georgia Pulp and Paper, by underbidding Delta. However, as explained in Noranda’s “Sulfuric Acid 1989 Plan,” the competition would have “force[d] an oversupply into a balanced market with predictable price disruption.” PI. Ex. 13 at 14. Noranda allegedly chose the more lucrative and illegal route, colluding with Delta to shut down its plant, take tons out of production, and continue contracts with existing customers with Noranda smelter acid. Plaintiffs further suggest that the Florida fertilizer market was a viable alternative destination for Noranda’s smelter acid. See PI. Ex. 11, 12.
Noranda’s argument that they avoided end consumers to prevent anti-dumping actions, while potentially true, does not avoid antitrust liability. Defendants offer no authority for the position that a company is immune from antitrust actions simply because it engaged in anti-competitive behavior as a means of diminishing the probability of other types of lawsuits. Even if well-intended, Defendants’ state of mind is not a determinative factor in the Court’s analysis.
See Professional Engineers,
Defendants’ general argument that the undisputed facts can be read in their favor does not alter the Court’s analysis. It is undisputed that had defendants engaged in arms-length negotiations, the ensuing conduct would not have invoked antitrust liability. Unfortunately for Defendants, a person resolving all factual disputes in Plaintiffs’ favor could find that Defendants did not act independently or legitimately. See, supra, Section III.A.1 (summarizing evidence tending to exclude the possibility of independent action).
2. The Ancillary Restraints Doctrine
An “ancillary” restraint “contribute[s] to the success of a cooperative venture that promises greater productivity and output,” whereas a “naked” restraint restricts competition without the benefit of a redeeming procompetitive virtue.
Polk Bros., Inc. v. Forest City Enters., Inc.,
The Seventh Circuit articulates the requisite inquiry in Polk Brothers. It instructs, “[a] court must ask whether an agreement promoted enterprise and productivity at the time it was adopted. If it arguably did, then the court must apply the Rule of Reason to make a more discriminating assessment.” Id. By contrast, if an agreement “is formed with the objectively intended purpose or likely effect of increasing price or decreasing marketwide output in the short run,” it may be condemned as a naked restraint on competition. 11 H. Hovenkamp, Antitrust Law ¶ 1906a, p. 235 (2d ed.2005). Summary judgment is therefore warranted if the shutdown agreements undisputedly promoted a cooperative venture with plausible prospects for increasing output or creating more desirable products.
Defendants posit that the output reduction agreements, as alleged, necessarily contributed to the success of a larger and lawful cooperative venture. They reiterate that the economic realities of the time were such that voluntary producers had to decide whether to continue producing sulfuric acid in an environment that made it difficult for them to compete. By entering into a distribution relationship with Noranda in lieu of producing all their acid, co-Defendants continued using their existing tangible and intangible distribution assets, rather than idling them. Defendants submit that shutting down production promoted and enabled the success of Defendants’ relationship by ensuring Noranda a “home” for its acid. Arguably, consumers stood to benefit from an increased supply of lower cost acid made available through an expanded distributional network.
Defendants’ position is problematic in a number of regards. To begin, under established precedent, a restraint is only ancillary if it necessary to achieve otherwise unattainable procompetitive benefits.
See BMI,
Defendants claim that the alleged shutdown agreements made possible an otherwise unobtainable “new and unique product” in the form of “cheap by-product smelter acid” delivered through the distri
In any event, Defendants’ argument relies on an interpretation of the record in which the shutdowns buttressed some efficiency-enhancing integration among the parties.
See BMI,
3. The Sulfuric Acid Industry
Defendants argue that the unique nature of the sulfuric acid industry differentiates it from other price-fixing and output-reduction cases, such that the Court cannot say with confidence that Defendants’ restraints “would always or almost always tend to restrict competition and decrease output.”
BMI,
In
National Collegiate Athletic Association (“NCAA”) v. Board of Regents,
the Supreme Court held that the collegiate athletic industry was such that “horizontal restraints on competition are essential if the product is to be available at all.”
Hoping to similarly distinguish this case from the typical
per se
fact pattern, Defendants point out that “U.S. Courts have yet to consider the competitive effects accompanying the displacement of voluntary acid with essentially costless by-product acid.” Noranda Br. at 10.
25
The sulfuric acid industry, while idiosyncratic, is not so markedly different from other industries in which the
per se
rale has been applied that the Court is prevented from applying the rale here. In the sulfuric acid industry, the commodity can be produced at a much cheaper price by some competitors than others and it must be offloaded through sale. These factors are common in many industries. Moreover, “the argument that the
per se
rule must be rejustified for every industry that has not been subject to significant antitrust litigation ignores the rationale for
per se
rules, which in part is to avoid ‘the necessity for an incredibly complicated and prolonged economic investigation into the entire his
This is not a case, as Defendants argue, where reluctance to adopt a
per se
rule should be observed “in the context of business relationships where the economic impact of certain practices is not immediately obvious.”
Khan,
4. Zone Contracts
Plaintiffs challenge Defendants’ zone contracts as an attempt at horizontal market allocation and thus a
per se
violation of § 1. One of the classic examples of a
per se
violation is an agreement between competitors to allocate territories in order to minimize competition.
See Topco,
Plaintiffs conflation of the zone contracts with horizontal market allocation agreements falls flat. It is undisputed that the zone contracts were implemented by Noranda, Falconbridge’s exclusive sales agent, to reduce intrabrand competition among distributors selling Falconbridge sulfuric acid. See Falconbridge SOF ¶ 65. While Noranda stands as a horizontal competitor with Defendants during illegal agreements to limit industry output, it stands in vertical relationships with them insofar as the sale of its own acid is concerned, whether from Noranda or Falcon-bridge sources. If the zone contracts had restricted competing producers from selling their own sulfuric acid in certain territorial locations, that would undoubtedly be a per se violation. But the zoning policy had no power over how producers handled their own acid; they only divided the U.S. into territories in which a limited number of prequalified resellers were permitted to bid for Falconbridge acid sales contracts. See Falconbridge SOF ¶ 60. Even then, the zone contracts did not prevent the resellers from marketing Falconbridge sulfuric acid in any geographic location that the reseller wished. See Falconbridge SOF ¶ 66. 27
The zoning policy was essentially a nonrestrictive system relied upon by Noranda Sales to geographically diversify buyers of Falconbridge acid.
28
Such systems are regularly upheld by courts as legal.
See Cranfill v. Scott & Fetzer Co.,
773 F.Supp.
5. The Noranda DuPont Joint Venture
Joint ventures are typically judged under the rule of reason because they require extensive cooperation by nature and “hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively.”
Copperweld,
The per se rule thus remains available to Plaintiffs if: (1) the record permits a reasonable juror to conclude that the joint venture was merely a sham label attached to per se illegal conduct, or (2) the challenged practice is collateral to the “core activity” of the joint venture and a naked restraint on competition. Plaintiffs allege that, under the guise of a sham joint venture, Noranda, Faleonbridge, and DuPont conspired to set common prices and reduce output as means of balancing supply and demand in the sulfuric acid market. They further compare DuPont’s output reductions to naked restraints. Defendants counter that Noranda and Faleonbridge entered into the direct sales joint venture with DuPont to eliminate Noranda’s need to sell through multiple intermediaries and achieve numerous market efficiencies, including the opportunity to generate savings on freight costs that could be passed on to consumers, and offering a more dependable supply of sulfuric acid to an expanded network of end users. Defendants assert that controlling the output of the joint venturers was ancillary to the achievement of these efficiencies.
Defendants argue that
Texaco v. Dagher
controls this case. In
Dagher,
two oil companies formed a production and marketing joint venture under the name of Equilon Enterprises. The Supreme Court held that Equilon’s decision to sell separately-branded gasoline at the same price was not
per se
illegal price fixing because the constituent oil companies were, for antitrust purposes, no longer horizontal competitors. The Court reasoned, “[w]hen persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit ... such joint ventures [are] regarded as a single firm competing with other sellers in the market.”
Id.
at 6 (internal quotation marks and citation omitted). In reaching its conclusion, the
Dagher
Court “presume[d] for purposes of these cases that Equilon is a lawful joint venture. Its formation has been approved by federal and state regulators, and there is no contention here that it is a sham.”
Id.
at 6 n. 1,
The indicia of legitimacy and integration so compelling in
Dagher
are not to be found in the instant case.
31
Specifically, the formation of Equilon was approved by consent decree by the Federal Trade
Certainly, Plaintiffs’ chances of prevailing on their “sham” claim diminish with the accumulation of evidence pointing to real integration between the joint venturers.
See Maricopa,
Prior to the formation of the Joint Venture, the record indicates that Noranda pressured DuPont to curtail its virgin acid production, and that DuPont may have complied. In a 1996 communication to Noranda’s Vice President regarding resale contract negotiations, DuPont’s Product Manager warned, “[w]e believe that [Noranda’s] pricing at these levels encourages suppliers with sulfur burners to increase production .... We can burn sulfur and deliver acid ... at significantly lower prices than you are asking us to pay. In other words, the proposed pricing encourages us to burn sulfur while Noranda has been steadily inquiring about ways to encourage us NOT to burn sulfur at our plants. We both know this is not in the long term best interest of both parties.” PI. Ex. 82. This sentiment arguably builds on a history of prior collusion. See PI. Ex. 28 at 2 (Noranda memo) (referencing “our confidential discussions with DuPont relative to the eventual ... closing of the Grasselli sulphur burner and hence the elimination of this 200,000 mt of acid production from the market.”); PL Ex. 14 at 2, 8 (Noranda report) (“Successful negotiations with ... DuPont ... have demonstrated the feasibility of replacing sulphur burned acid with smelted acid”) (“[Du Pont h]as expressed a much stronger interest in scaling down production at [the Grasselli] facility by as much as 50-100,000 STPY.”); PL Ex. 27 at 1 (Noranda memo) (“Grasselli Terms: DuPont shall permanently cease production of acid and oleum at Grasselli prior to commencement of shipments by Noranda.”).
Such evidence tends to exclude the possibility that Noranda and DuPont consistently acted in an independent and legitimate manner.
See Matsushita,
The Joint Venture’s chief financial officer stated that the “primary goal” of the joint venture was “to make sure we never shut a smelter down.” PL Ex. 89, Kopko Dep. 139:21-140:7. In early 1999, the Joint Venture suffered a short-term inventory bubble due to an oversupply of acid in the marketplace, among other factors. Norfalco SOF ¶ 72. To avoid smelter shutdowns at Noranda, DuPont scaled back production and burned sulfur at minimum levels for two months. Pl. Ex. 119. at 2 (DuPont email); Pl. Ex. 120 at 2 (DuPont email); PL Ex. 121 at ND94778 (Noranda DuPont presentation); PL Ex. 122 at 2 (Noranda DuPont fax); PL Ex. 123 at ND118186 (Noranda DuPont presentation). 35 Again, there are perfectly legal explanations for this decision. Still, the undisputed facts remain consistent with Plaintiffs’ contention that the Joint Venture sought to maintain a balanced market by reducing output to accommodate Noranda’s smelter acid.
Finally, the Court is unable to conclusively determine the level at which Noranda, DuPont, and Falconbridge integrated under the Joint Venture. To Defendants’ credit, Plaintiffs’ fixation on the Joint Venture’s lack of manufacturing assets is largely misdirected. While “there were no capitalizable assets on the books of the joint venture ... there was accounts receivable, inventory, and assigned leases.’ (PL Ex. 104, Hamma Dep. 152:17-153:11.) Noranda and DuPont further contributed cash and seconded personnel to the Joint Venture. Norfalco SOF ¶ 29, 38, 43^5.
36
In the end, dispute over the central nature and purpose of the Noranda DuPont Joint Venture clouds inquiry into whether, at the time of its inception, it plausibly enhanced competition and efficiency in the sulfuric acid market. Certainly, the market efficiencies praised by Defendants might arise if the Joint Venture was as legitimate and integrated as claimed. Moreover, as Defendants also argue, it may well be that Plaintiffs have vastly overstated the evidence, which is comprised primarily of emails, notes, and slideshow presentations. But the weight of the evidence is for a juror, not the Court, to decide. When viewing the record in the light most favorable to Plaintiffs, a reasonable juror might conclude that, underneath the elaborate trappings of a joint venture, Noranda and DuPont maintained a relatively unintegrated sales relationship that enabled them to limit market output whenever supply threatened to overshadow demand. The joint activity described in the latter scenario has no prospects for pro-competitive effects and would therefore remain vulnerable to per se condemnation.
Defending the Joint Venture’s actions as ancillary to a legitimate business purpose does not produce a different result. In Dagher; the Supreme Court expressly forbade the application of the ancillary restraints doctrine to the pricing of goods sold by a joint venture, because price setting was a function of that joint venture’s “core activity.”
See Dagher,
In light of the lack of clarity on this issue, this Court cannot find that the Joint Venture was so clearly of a legitimate nature as to negate evidence justifying
per se
treatment, or make all anticom
6. Falconbridge, Noranda, and Boliden as a Single Entity
Defendants Falconbridge, Noranda, and Boliden argue that they are incapable of conspiring with each other in violation of § 1 because they essentially form a single entity. The Sherman Act makes a “basic distinction between concerted and independent action.”
Copperweld,
In
Copperweld Corporation v. Independence Tube Corporation,
the Supreme Court held that the coordinated activity of a parent and its wholly owned subsidiary must be viewed as that of a “single enterprise” for purposes of section 1 of the Sherman Act. The Court based its holding on the rationale that “a parent and its wholly owned subsidiary have a complete unity of interest.... [T]heir general corporate actions are guided or determined not by two separate corporate consciousnesses, but one.”
We generally treat agreements within a single firm as independent action on the presumption that the components of the firm will act to maximize the firm’s profits. But in rare cases, that presumption does not hold. Agreements made within a firm can constitute concerted action covered by § 1 when the parties to the agreement act on interests separate from those of the firm itself, and the intrafirm agreements may simply be a formalistic shell for ongoing concerted action. — U.S. ---,130 S.Ct. 2201 , 2215,176 L.Ed.2d 947 (2010) (citing Topco Associates, Inc.,405 U.S., at 609 ,92 S.Ct. 1126 ; Sealy,388 U.S., at 352-354 ,87 S.Ct. 1847 ).
The NFL was not considered a “single entity” because the league’s independently-operating teams retained competitive interests and did not resemble components of a single firm seeking to maximize the firm’s profits.
Id.
In other words, if an agreement joins together “independent centers of decisionmaking,” it qualifies as concerted action under the purview of § 1.
See id.
at 2212 (quoting
Copperweld,
It is undisputed that Trelleborg owned 100% of Boliden Intertrade. From 1989 until June 1994, Trelleborg also owned 50% of Falconbridge, while Noranda owned the other half. In 1994, Trelleborg sold a large percentage of its Falconbridge
All parties agree that, under
Copper-weld,
any agreements between Trelleborg and its wholly owned subsidiary, Boliden, cannot be considered concerted action in violation of § 1 of the Sherman Act. However,
Copperweld’s
guidance ends there.
See Copperweld,
Although the Supreme Court has not addressed the aforementioned issue, lower courts have found that similarly related entities can conspire with each other.
See, e.g., Sonitrol of Fresno, Inc. v. AT & T,
The degree to which Noranda exerted
de facto
control over Falconbridge is disputed, however. Plaintiffs present evidence contradicting the perception of a “complete unity of interest” between Noranda and Falconbridge.
Copperweld,
Noranda and Falconbridge further argue that they cannot conspire to engage in concerted action under § 1 because they share an agency relationship. In April 1991, Falconbridge appointed Noranda as its sole sales agent responsible for the sales, marketing and distribution of its sulfuric acid. Noranda handled the sales and marketing of Falconbridge’s sulfuric acid until the agency relationship for the sale of acid in the United States terminated in 1998 with the formation of the Noranda DuPont Joint Venture. 37
Defendants inaccurately cite
Day v. Taylor,
According to Plaintiffs’ allegations, Noranda’s role as sales agent merely streamlined the process by which the two Canadian companies delivered smelter acid to co-conspirators. In that case, the agency relationship does not insulate Noranda and Falconbridge from liability under the Sherman Act. In any event, Falconbridge may still be liable for
per se
violations of the Sherman Act if its agent Noranda acted with actual or apparent authority to commit the illegal acts at issue.
See American Soc. of Mechanical Engineers, Inc., v. Hydrolevel Corp.,
The Court finally addresses Defendants’ contention that Boliden, Noranda, and Falconbridge should collectively enjoy “single entity” status because Falconbridge was purportedly a joint venture between the two others. As an initial matter, the Court rejects the suggestion that Falcon-bridge was a joint venture between Boliden and Noranda. More accurately, Falconbridge was a joint venture between Trelleborg and Noranda. The fact that a wholly owned subsidiary and its parent company are considered a single entity for purposes of § 1 liability does not mean that the two are interchangeable in all regards. At any rate, Defendants cite no authority for the proposition that two companies engaging in a joint venture cannot violate antitrust laws by entering in an anticompetitive conspiracy separate and apart from that joint venture.
Defendants’ argument that Noranda and Boliden must be considered a single entity in all aspects simply because Falconbridge is unified draws language from case law wherein joint ventures or their actions are themselves challenged as infringements of the Sherman Act.
See, e.g., Dagher,
CONCLUSION
At this point, Plaintiffs have raised enough issues of contested material fact to preclude both summary judgment on the merits and determination of the appropriate legal standard for this case. Plaintiffs claim that Defendants were in a competitive situation, were confronted by a jarring change to the market, and coordinated their production and distribution to stabilize that market. There is, of course, a lack of clarity as to whether Defendants in fact acted as Plaintiffs allege, but there is complete clarity that, if they did, it would amount to a per se violation of the Sherman Act and carry with it anticompetitive effects.
Defendant GAC stands apart from eoDefendants due to a lack of evidence tending to exclude the possibility of independent action on its part. Plaintiffs’ horizontal market allocation claims based on Defendants’ zone contracts are likewise unavailing, as vertical nonprice restraints are properly judged under the rule of reason. Having eschewed rule of reason analysis, Plaintiffs have failed to raise a triable issue of fact as to Defendants’ liability under the per se doctrine for the anticompetitive nature of the zone contracts.
For the foregoing reasons, the Court GRANTS Defendant GAC’s motion for summary judgment. The Court DENIES the motions submitted by Defendants Noranda, Boliden, PVS, Norfalco, and Koch. Defendant Falconbridge’s motion is DENIED in part. Falconbridge’s request for summary judgment on the issue of Defendants’ zone contracts is GRANTED.
Notes
. Defendant GAC brought a motion to dismiss [339] that has since been rendered moot by its motion for summary judgment. Therefore, Defendant GAC’s motion to dismiss is DENIED as MOOT.
. PVS Nolwood Chemicals, Inc. and PVS Chemicals, Inc. Ohio are also parties to this action. For purposes of this motion the three PVS-related companies will be referred to collectively as "PVS.”
. Several parties have chosen to disregard this Court's standing order and Rule 56's purpose of increasing the efficiency of these proceedings by providing argument, disputed facts, and inaccurate/insufficient citation in their statements of facts. Plaintiffs’ statement of fact especially suffers from such conduct. As stated in its standing order, the Court shall not consider inappropriate arguments presented in the parties’ Rule 56.1 statements.
. Prior to
Korean Air,
the Judicial Panel on Multidistrict Litigation and some district courts assumed that
Van Dusen
applied to federal claims.
See, e.g., In re Plumbing Fixtures Litigation,
. Other circuits have adopted the same position.
See Newton v. Thomason,
. Because Plaintiffs filed their suits in 2003, the statute of limitations could not have accrued any earlier than 1999, if Plaintiffs acted in a timely manner. Boliden does not argue that Plaintiffs ever gained actual notice of anticompetitive activities.
. Plaintiffs contend that the explicit and implicit terms of Defendants’ agreements, submitted in the instant case as evidence of anti-competitive behavior, remained confidential and inaccessible. The Court notes that internal documents used by some Plaintiffs to craft their claims came to light when a Canadian court unsealed them in mid-2003. That litigation was required to produce these records further discourages the Court from concluding that, as a matter of law, a reasonably diligent plaintiff could have uncovered Defendants' alleged misconduct absent legal action.
See Glazer Steel Corp.
v.
Toyomenka, Inc.,
. Evidence that reasonably tends to prove a conspiracy among Noranda, Falconbridge, and DuPont under the umbrella of the Noranda DuPont Joint Venture is discussed in Section III.B.5 of this opinion.
. The revenue sharing provisions in some of Defendants' contracts is an example. Plaintiffs do not claim that contractual revenue sharing per se violates antitrust laws. Rather, they rely on the provisions as evidence pointing to collusive activity, for their capacity to act as mechanisms through which Defendants allegedly reaped the profits of their conspiracy. While revenue sharing can be consistent with such usage, and may provide Defendants with added motive to cooperate with each other in make-buy decisions, it does not, standing alone, tend to show anticompetitive collusion.
. Defendant Koch complains at length that none of Koch’s contracts explicitly involved the shutdown of facilities or the reduction of production, nor is there evidence that Koch ever attended any meetings at which the overarching conspiracy was discussed. Yet, Plaintiffs’ circumstantial evidence tends to show that negotiations beyond the scope of the written agreements informed Koch of the purpose and methods of the alleged conspiracy, and that Koch acted accordingly. See, e.g. PI. Ex. 14 at 11 (1988 Noranda report) ("Koch has expressed an interest in partial closure of both plants with particular emphasis on the Wilmington facility”); PL Ex. 52 (1988 Koch memo) ("As a company, management wants production to either cease or be scaled back for Noranda’s acid to enter the market.”); Pl. Ex. 54 at KSP00062754 (1990 Koch memo) ("Koch could displace acid currently in the market with Noranda acid, so as to maintain industry structure."); Pl. Ex. 56 at 7 (Koch Answers to Interrogatories) (showing a reduction in production by 25,000 tons in 1990 at the Wilmington Plant); PL Ex. 242 at KSP00119407 (2005 notes by Koch employee) (“[Noranda] wondered about Wilmington facility. He felt there could be a good fit once the new acid plant comes on stream. I mentioned that we have considered the option and can talk in the near future.”).
. Citing
In re High Fructose Corn Syrup Antitrust Litigation,
Defendants seem to argue that Plaintiffs must produce a written contract in order to survive summaiy judgment.
See
Koch Reply Br. at 2 (citing
High Fmctose,
. In the alternative, Defendant Boliden claims that it "withdrew” from any conspiracy by May 1995, when it was reported to be running the Copperhill plant at full capacity. Firstly, Plaintiffs dispute that Boliden began running at capacity at that time.
See
Noranda Ex. 27 at 37 (showing that Copperhill’s annual output fell short of its capacity between 1993 and 1998). Secondly, even if Copperhill was producing at maximum levels, doing so for some period of time is not inconsistent with the overall conspiracy alleged by Plaintiffs. To wit, Defendants allegedly conspired to reduce output whenever supply overshadowed demand, so as to maintain a balanced market. Whenever supply dipped below demand, Defendants could increase production while still remaining true to the goals of the conspiracy. Thirdly, producing at full capacity is insufficient to alone constitute a withdrawal from a conspiracy. Withdrawal requires an affirmative act on the part of the conspirator; he must either make a full confession to the authorities, or communicate to each of his coconspirators that he has abandoned the conspiracy and its goals.
See United States v. Sax,
.
See
Boliden Br. App. A-H (sample media reports of decisions by producers to close acid plants and resell Canadian smelter acid). In addition to extensive media coverage, there is evidence indicating an awareness among American Defendants of co-Defendants' specific dealings with Noranda.
See, e.g.,
PL Ex.
. See, e.g„ Pl. Ex. 215 at PVS107692 (PVS internal letter) ("Noranda acid is destined for the Ohio market and if we do not control it, someone else will. The latter would apparently result in depressed prices and make it uneconomical to operate the plant.”); Pl. Ex. 54 at KSP00062754 (Koch memo) ("Koch could displace acid currently in the market with Noranda acid, so as to maintain industry structure.”); Pl. Ex. 45 at 1-2 (Boliden-Noranda letter) ("Noranda and Boliden are in concurrence in that ... 'sharing the pain' is essential.... It is our objective ... to pursue other opportunities such as ... shut down agreements ... in order to maximize the realizations on this tonnage.”); Pl. Ex. 28 at 2 (1991 Noranda memo) ("All parties fully support Boliden’s strategic desire to reduce Marsulex’s volume by that quantity ... of acid anticipated (some time ago) to be displaced from Falconbridge’s traditional Canadian sales.”).
. See, e.g., Pl. Ex. 13 ¶ 12 (implicating Noranda); Pl. Ex. 54 at KSP00062754 (implicating Koch and Noranda); Pl. Ex. 52 (implicating Koch); Pl. Ex. 39 at 2 (implicating Boliden and Falconbridge); Pl. Ex. 41 at 8 (implicating Boliden and Falconbridge); Pl. Ex. 14 at 8, 10 (implicating PVS and Noranda); Pl. Ex. 13 at 13 (implicating PVS and Noranda); Pl. Ex. 27 at 166784 (implicating PVS and Noranda).
. Citing
General Lease-ways,
Defendants urge the Court to disregard internal company documents because the reliability of their content is questionable. In deciding whether a plaintiff had raised a substantial question on the merits so as to warrant a preliminary injunction, the
General Lease-ways
court "attached] rather little weight to internal company documents used to show anticompetitive intent, because, though they sometimes dazzle a jury, they cast only a dim light on what ought to be the central question in an antitrust case: actual or probable anticompetitive effect.” 744
. Plaintiffs’ allegations of a horizontal conspiracy to allocate customers lack sufficient evidentiary support and thus cannot survive summary judgment. See, infra, Section III. B.4. Such a claim would fail against GAC at any rate, because it did not compete with Noranda or Falconbridge in the production of sulfuric acid.
. Plaintiffs briefly make an attempt to address the issue of market power by equating the concept with Dr. Tolliver's assessment of market share. Yet, they do not dispute that Dr. Tolliver did not determine the geographic markets or markets at issue in this case. See Noranda SOF ¶ 52.
. An intermediate "quick look” doctrine also exists for cases that do not fall in
per se
illegal categories, yet do not require elaborate industry, analysis to determine their overall anti-competitive effect. Such conduct can be condemned short of full rule of reason analysis if "an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets.”
Cal. Dental Ass’n
v.
FTC,
. Defendants paint a picture of an "economic reality that acid produced as a by-product from smelting metals and acid produced from burning sulfur would not both continue to be produced in a 'balanced' market where supply already equaled demand.... A rational voluntary producer of acid would not continue producing under these conditions.” Noranda Reply Br. at 7-8. Plaintiffs dispute the continued profitability of Defendants' plants, however. See PL Ex. 8, Hall Dep. 204:22-205:23.
. Defendants argue that the agreements produced efficiencies for Defendants' business. It is undisputed, for instance, that Delta’s sales increased. GAC SOF ¶ 45. But whether these efficiencies came at the cost of the consumer is the key question of fact in this case.
. Koch's argument that it could not have conspired to decrease production because it increased overall output by importing acid from Europe, as well as Noranda’s defense that its smelter acid may have ultimately increased or maintained the total output of acid
. Generally, a finding of ancillarity works to "remove the
per se
label from restraints otherwise falling within that category.” R. Bork,
. Noranda argues that the Manderson Report represents "prior executive ... branch involvement,” which serves as a "unique indicator that the challenged practice may have redeeming competitive virtues and that the search for those values is not almost sure to be in vain.”
BMI,
. To illustrate the uniqueness of the sulfuric acid industry, Defendants cite a Canadian case holding that voluntary producer's decision to shut down facilities in favor of an exclusive resale contract with a smelter did not violate Canadian antitrust laws. See R. v. Allied Chem. Canada Ltd., 6 W.W.R. 481 [1975]. While legal analysis under Canadian law is irrelevant, it bears noting that the British Columbia Supreme Court’s holding was not premised on the uniqueness of the sulfuric acid industry. The court actually based its decision on findings of fact that this Court is prevented from making at summary judgment. The Canadian court observed, "[certainly there are cases where control and diminution of supply may be a weapon to control price.... Bui here the problem was to dispose of an excess of acid, not to dry the source of supply.... There was no suggestion that the plan was to shut down [the plant] so [the smelter] could control the price of acid, nor is there any evidence that any overt acts to that end did result.” Id. at ¶ 125-26. The court ultimately found that "[t]here was no initial illegal agreement to limit all facilities in the western British Columbia area to those at [the smelter], and there was no ongoing policy to do so, nor any overt action directed to carrying out such a policy.” Id. at ¶ 137. By contrast, it remains disputed whether the instant case involves illegal agreements comprising an ongoing conspiracy to reduce output as a means of influencing prices.
. Intrabrand vertical restraints threaten interbrand competition only if the supplier has monopoly power in the relevant market.
See O.S.C. Corp. v. Apple Computer, Inc.,
. Although Plaintiffs do not dispute this in their response to Falconbridge’s statement of facts, they cursorily suggest in their brief that the contracts restricted the areas in which Falconbridge acid could be resold. In support of this position, Plaintiffs cite without explanation an internal Noranda email.
See
PI. Ex. 78. The email describes a request for sulfuric acid from a potential Wisconsin customer. The Noranda employee taking the order writes that ”[t]he acid must come from the Horne [Noranda's smelter] because only Marsulex can sell Falconbridge in this zone and Marsulex is not my customer.” PL Ex. 189;
see also
PL Ex. 77 at NFD197665 (map indicating that Wisconsin was in Marsulex’s "zone”). When viewed in the light most favorable to Plaintiffs, this email at most establishes that the zone contracts granted Falcon-bridge acid distributors an exclusive right to purchase and sell Falconbridge acid in their given zone, while Noranda acid (i.e. from the Horne smelter) could be freely sold to customers outside that pool. The effect of the distinction is minimal. Such a vertical restraint on Falconbridge acid sales would remain subject to the rule of reason under
GTE Sylvania,
. In contrast to the evidence reasonably tending to prove Defendants’ participation in an output limitation conspiracy, Plaintiffs'
. The Supreme Court frequently looks beyond labels to condemn underlying collusion among competitors as violations of the Sherman Act.
See American Needle,
. In dicta, the Supreme Court speculated that "[h]ad respondents challenged Equilon itself, they would have been required to show that its creation was anticompetitive under the rule of reason.” Id. This line cannot be read to mean that whether a joint venture amounts to a sham must be analyzed under the rule of reason. Such an interpretation does not square with existing Supreme Court precedent. See P. Areeda & H. Hovenkamp, Antitrust Law ¶2132, p. 387 (Supp.2010) ("[W]e would not read too much into the decision's dicta.”).
. Given Equilon’s legal pedigree and high level of integration, subsequent applications of the “single entity” principle indicate that
Dagher
should be interpreted narrowly.
See, e.g., American Needle, Inc.
v.
National Football League,
--- U.S. ---,
. The Supreme Court did not elaborate on the basis for its holding. Most likely, the Court condemned the joint venture as a
per se
violation because, from the start, it held no reasonable prospect of delivering efficiency-enhancing benefits to society. The Court found that "[t]he purpose of the agreement was to end any business or commercial competition between the two papers,” and that defendants lacked a viable defense for their actions. In effect, despite the integration of
. Defendants suggest that any possibly legitimate venture encompassing the alleged anti-competitive behavior requires that the rule of reason test be applied. However, as this Court interprets the law, it is only plausible connections to legitimate business motivations that urge against applying per se analysis to what would otherwise be clearly anticompetitive behavior. And whether or not Noranda, DuPont, and Falconbridge’s collaboration plausibly promoted competition or market efficiency is exactly what is at issue here
. Overall, Defendants tend to analyze separately evidence in support of anticompetitive deals made with Noranda prior to 1998 and those made with Noranda DuPont, LLC thereafter. The Court declines to decide how long, if at all, the alleged conspiracy lasted, and which specific plant shutdowns it entailed. If the Noranda DuPont joint venture is found to be an extension of existing concerted action, the temporal distinction posed by Defendants may be rendered moot. It is up to a factfinder to determine whether the dealings of Defendants Koch, PVS, and Boliden with Noranda DuPont LLC form part of a conspiracy that existed prior to the formation of the Joint Venture.
. DuPont claims that its decision to scale back production was unilateral, but the issue is disputed. Plaintiffs have produced evidence implying that DuPont acted at the direction of the Joint Venture. See Pl. Ex. 122, at ND00087153.
. The undisputed record also establishes that profits of the Joint Venture were split evenly between Noranda and DuPont, and that both companies shared the Joint Venture's losses. Norfalco SOF ¶ 34. Given the questionable history between the joint venturers in this case, the Court hesitates to read too much into the sharing of profits and risks. "If the fact that potential competitors shared in profits or losses from a venture meant that the venture was immune from § 1, then any cartel 'could evade the antitrust law simply by creating a 'joint venture’ to serve as the exclusive seller of their competing products."
See American Needle,
. Although Noranda acted as Falconbridge's exclusive sales agent for seven years, it appears that, within this relationship, the companies retained competing interests. See PI. Ex. 272 at NFD 172546 ("Falconbridge pointed out that it felt it had a disproportionate allocation of ‘distant’ customers relative to Noranda during the preceding 3 years, and that if Noranda had been pooling with Falconbridge its average freight cost would be lower....”).