MEMORANDUM OPINION AND ORDER
Before the Court are the Motions for Summary Judgment filed by Defendants Georgia-Pacific [ECF No. 1086] and Wes-trock [ECF No. 1088]. For the reasons stated herein, the Court grants the Motions. It therefore denies as moot the parties’ cross filings for partial summary judgment on the narrower issue of released and untimely claims [ECF Nos. 1114 and 1188]. Lastly,.given that with this opinion the Court has disposed both of the parties’ Daubert and summary judgment motions, it denies as moot the requests for hearings on those submissions [ECF Nos. 1272 and 1273].
I. BACKGROUND
This case is an antitrust class action in which Plaintiffs accuse Defendants of con-, spiring to fix prices in violation of Section' 1 of the Sherman Act. Plaintiffs were direct purchasérs of containerboard products from Defendant paper companies. They allege that, between February 15, 2004 and November 8, 2010 (“the Class Period”), Defendants engaged in a series of agreed-upon actions to raise the price of containerboard products. These include lockstep announcements of price increases and reductions in the supply of container-board achieved by “cutting capacity, slowing back production, taking downtime, idling plants, and tightly restricting inventory.” Kleen Prods. LLC v. Int’l Paper,
All but two Defendants have settled. The settling Defendants include Cascades Canada, Inc., Norampac Holdings U.S., Inc. (collectively “Norampac”), Packaging Corporation of America (“PAC”), International Paper Company, Temple-Inland, Inc., and Weyerhaeuser Company. Defen
The two Defendants that remain in the case are Georgia-Pacific and Westrock (f/ k/a/ Smurfit-Stone or RockTenn), and they have continued to press for summary judgment. Defendants’ case is simple. They say that Plaintiffs have not carried their burden to show that there was an agreement to fix prices among the alleged conspirators. All of their actions, Defendants claim, are consistent with actions taken in permissible competition. Moreover, Defendants argue that the range of permissible competition allowed them—large firms operating in a concentrated industry—is wide. In particular, they point out that they may lawfully raise price's not only because external market forces call for such price increases, but also because they believe that fellow competitors may find it in their best interest to raise prices as well. According to Defendants, once this range of lawful, consciously parallel behavior . is accounted for, Plaintiffs’ evidence cannot reasonably show that Defendants conspired.
Plaintiffs disagree. They contend that the .evidence, when viewed in the light most favorable to them, permits a reasonable jury to find that Defendants were not competing but illegally colluding with one another. Plaintiffs offer the following evidence to contest summary judgment. First, they draw attention to the fact that during the six and a half years of the alleged conspiracy, Defendants—a group that includes both the Defendants that have settled and the two moving Defendants, Geor-giar-Paeifíe and Westrock, that have not— collectively announced 15 price increases. With one exception, all Defendants joined each price announcement and around the same time; twelve out of the 15 times, Defendants increased prices for identical amounts; and all the increases carried nearly the same effective dates.: Second, Plaintiffs show that the price increases came in close temporal proximity to trade association meetings, direct telephone •calls, or other communications where Defendants had the opportunity to confer and enter into an agreement with one another. Third, Plaintiffs claim that Defendants reduced their eontainerboard production strategically, closing mills or otherwise slowing production around the time that they announced'their price increases.
Table 1 summarizes some of this evidence. It shows the 15 price increases during the Class Period and one predating it. The first column lists the date on which a price increase was first announced and the second the amount of the price increase. The columns thereafter list for each Defendant how many days after the first price announcement it joined the price increase by making its own announcement.' Where a Defendant am nounced a different price than what the fírst-to-announce firm committed to, its own price increase , ampunt is noted. For example, the table shows that International Paper was the first to announce, a price increase of $35.00 on March 31, 2003. Georgia-Pacific followed suit three days later, and a day after that (or four days from, the initial announcement) Temple-Inland likewise announced that it was increasing its eontainerboard prices but by $40,00. ‘
Table 1: Price Increases during the Class Period
[[Image here]]
Notes:
• Except where noted, each Defendant’s price increase was for the same amount as the first-to-announce firm’s.
• The first price increase of March 31, 2003 predates the Class Period.
• Two of the price increases—those announced by Georgia-Pacific on November 23, 2009 and June 29, 2010—were led by a non-Defendant. Georgia-Pacific was only the first among Defendants to announce these increases.
• Six of the price increases, marked with asterisks by the date of the first price announcement, failed.
• Weyerhaeuser did not announce any price increase after the May 28, 2008 announcement. This was presumably due to the fact that the company sold its containerboard business to International Paper on August 4, 2008.
In addition, Plaintiffs put forth a “conduit theory” to explain how Defendants facilitated their conspiracy. According to Plaintiffs, Defendants used their earnings calls, communications with industry analysts, and other public statements' to leak confidential information to their co-conspirators. Plaintiffs assert that such leaks allowed Defendants to coordinate their actions and further their price-fixing scheme. In the same vein, Plaintiffs draw attention to the fact that Defendants traded often among themselves. Plaintiffs contend that such inter-firm trades allowed Defendants to treat each other as customers instead of competitors and so freely exchange information among them.
Plaintiffs also build a body of expert testimony. One of Plaintiffs’ experts, Douglas Zona (“Zona”), opines that Defendants charged supracompetitive prices during the Class Period while depressing production to levels below that of a benchmark group not suspected of conspiracy. Another expert, Michael Harris (“Harris”), contends that Defendants’ actions were in
Defendants do not dispute many of the underlying facts. For example, they do not contest that they made announcements of price increases, closed certain mills, interacted with each other and analysts, engaged in inter-firm trading, and operated in a highly concentrated industry. Instead, they seek to undermine the inference of illicit agreement that Plaintiffs (and their experts) draw by introducing additional factual evidence and competing expert testimonies. For instance, Defendants adduce evidence to show that they independently considered raising prices. They further assert specific business reasons for having attended trade association meetings,, made phone calls to each other, publicly disclosed information.to analysts, and traded among themselves. Defendants also advance individual defenses. Georgia-Pacific emphasizes its high production levels during the Class Period, while Westrock seeks to extricate itself on the basis that its decisions to announce a price increase and reduce supply were approved while it was in bankruptcy.
In addition, Defendants point to gaps in Plaintiffs’ evidence. They focus on the fact that, after extensive discovery, Plaintiffs found no evidence to shed light on the substance of Defendants’ supposedly improper communications during the various industry meetings and phone calls. This is despite Plaintiffs having combed through thousands of pages of Defendants’ contemporaneously created records and deposed numerous employees involved in those meetings and calls as well as third parties. As such, Defendants argue that Plaintiffs rely only on speculation to advance the theory that Defendants conspired during these interactions.
Plaintiffs, in turn, admit the additional facts but argue that their case withstands Defendants’ attempt at shading the record. They aim to excuse certain missing pieces of evidence by alluding to Defendants’ pri- or brushes with antitrust lawsuits. Plaintiffs contend that as a result of such exposure, Defendants have learned to conceal their conduct, destroy business records, and generally make it difficult for Plaintiffs to find incriminating evidence.
Despite the -vigorous back-and-forth between the parties and the voluminous record, the general lack of dispute on the underlying facts makes the case ripe for summary judgment.
II. SUMMARY JUDGMENT STANDARD AND SUBSTANTIVE ANTITRUST LAW
To survive summary judgment on their Sherman Act conspiracy claim, Plaintiffs “must present evidence ‘that tends to exclude the possibility that the alleged conspirators acted independently.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
Independent actions include, but are not limited to, the behavior of firms operating in perfectly competitive markets—that is, firms doing business in a market where
The concept of independent actions takes on an additional dimension in this case because Defendants are oligopolies, or large firms operating in an industry dominated by few players. See, In re Chocolate Confectionary Antitrust Litig.,
Accordingly, a firm acting independently may choose to raise prices or lower output because it anticipates (or hopes) that its competitors, likewise acting independently and in their best interests, -may foEow the same course of action. See, In re Text Messaging Antitrust Litig.,
The kind of interdependent conduct just described is variously known as conscious parallelism, tacit collusion, follow-the-leader strategy, or interdependent parallelism. However'it is referred to-, the crucial thing is that such conduct is lawful. See, Twombly,
Tacit collusion thus is lawful, and this is despite the fact that it may have the same anticompetitive effects as proscribed express collusion. See, Reserve,
The bottom line is that lawful independent actions subsume oligopolistic interdependent behavior. Thus, to ’ prevail at summary judgment, Plaintiffs, must offer evidence that tends to rule out both that Defendants acted independently as price-taking firms and that they acted interdependently as oligopolies. See, In re Domestic Drywall Antitrust Litig.,
In sum] the Court applies the following summary judgment standard in this antitrust case. It draws every reasonable inference in favor of non-movant Plaintiffs while keeping in mind that “[cjoriduct as consistent with permissible competition as with illegal conspiracy does not,-standing aloné, support an inference of antitrust conspiracy.” Matsushita,
III. ANALYSIS
The Court considers the evidence Plaintiffs bring to contest summary judg
As against each moving Defendant, the Court examines the evidence as a whole to see if, viewed in the light most favorable to Plaintiffs, “it was more likely that the defendants had conspired to fix prices than that they had not conspired to fix prices.” In re High Fructose Corn Syrup Antitrust Litig.,
The Court begins by reviewing the procedural history of this’ case, which Plaintiffs argue constrains what the Court may do at this" stage.
A. Procedural History
This case arrives at summary judgment after this Court certified it as a class action and the Seventh Circuit affirmed the decision. Plaintiffs rely heavily on the Seventh Circuit’s opinion in arguing why süm-mary judgment is inappropriate here, In particular, they seize on the appellate court’s language that “[tjhere was a great deal of evidence designed to show that the hypothesis that Defendants had organized a cartel was one that a jury could accept.” Kleen Prods. LLC v. Int’l Paper Co.,
Plaintiffs’ argument proves too much. It suggests that in affirming class certification, the court of appeals decided the merits of Plaintiffs’ case,. concluding that the case was strong enough to be submitted to a jury and.so should bypass not only summary judgment but also a directed verdict. This flies against the Supreme Court’s teaching that “courts [have] no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
This can be seen both in what the court said and what it did not say. In its opinion, the court expressly noted that it was “not saying that any of these points [making up Plaintiffs’ prima facie case] have been proven” but merely that Plaintiffs’ “evidence is enough to support class treatment of the merits.” Kleen Prods.,
Furthermore, the Seventh Circuit did not rule that should Plaintiffs bring the type of proof they have now introduced, they may proceed directly to trial. This comes through in what the court simply did not say. The court said little about the substance of antitrust law, except as that body of law relates to class certification issues. It mentioned the Sherman Act just once, at the beginning of the opinion; it did not distinguish between express and tacit collusion, despite the fact that only one of these two types of conduct violates antitrust law; it gave short shrift to what continues to be Defendants’ main defense, which is that their behavior was explained by “parallel but independent behavior undertaken by firms in a concentrated market”; and it credited facts that it had elsewhere said do not support an inference of conspiracy. Compare, e.g., Kleen Prods.,
The Court thus declines Plaintiffs’ invitation to dispose of the current motions based on the Seventh Circuit’s class certification opinion alone. Instead, it considers the evidence the parties bring to summary-judgment. Plaintiffs concede that they have uncovered no direct evidence of conspiracy. See generally, ECF No. 1230 (Pls.’ Br.), at 4 (discussing the various pieces of evidence to support their case and stating that “Plaintiffs present extensive and strong circumstantial evidence”). Therefore, circumstantial evidence decides this case, and such evidence comes in two forms, “economic evidence suggesting that the defendants were not in fact competing, and noneconomic evidence suggesting that they were not competing because they had agreed not to compete.” High Fructose,
B. Economic Evidence of Conspiracy
The Court first tackles the economic evidence. Plaintiffs have amassed four categories of such evidence that they say support an inference that Defendants engaged in a conspiracy. These are: the
1. Structure of the Containerboard Industry as Motive to Collude
Plaintiffs’ evidence on the structure of the containerboard industry, while not uncontested, can be treated as establishing that the “containerboard market was conducive to successful collusion.” Kleen Prods.,
However, the value of this evidence to show that an actual conspiracy existed is limited. As the Court explained in its Dau-bert memorandum opinion,
An industry structure is shared by Defendant and non-Defendaht firms alike throughout the Class and non-Class Periods. As such, by itself, details of an industry structure cannot show that Defendants conspired during the Class Period any more than they can show that all containerboard firms conspired at all times.
Kleen Prods. LLC v. Int’l Paper, No. 10 C 5711,
Moreover, the evidence that Plaintiffs bring does not offer unalloyed support to their case. For example, Plaintiffs stress that the demand for containerboard products was inelastic, meaning that Defendants’ customers were not particularly sensitive to price. As such, when the price of containerboard increases, demand does not drop precipitously, and conversely, when the price of containerboard falls, demand does not increase significantly. Yet while pressing this fact, Plaintiffs also fault Defendants for not cutting prices in response to falling demand during a period of economic downturn dubbed the Great Recession. But the inelasticity of demand is exactly the reason that a price cut would not much help a Defendant’s bottom line, and in fact, may hurt it. In an industry characterized by inelastic demand, cutting prices “will not increase the size of the total market.” See, Res. Supply,
As such, inelastic demand and homogeneous products explain why Defendants do not compete on price, and this is so even in the absence of an unlawful agreement not to compete. Cf. Text Messaging,
Similarly, Plaintiffs emphasize that the containerboard industry was dominated by a few players, protected by high barriers to entry, and became more concentrated still during the Class ; Period. See, e.g., ECF No. 1230 at 25 (“Defendants’ market shares also indicate their ability to conspire. During the Class Period alone, Defendants’ collective market share has increased from 75% of total box production in 2005 to -81% in 2007.”). It is true that “collusion is easier with fewer firms,” Gen. Leaseways, Inc. v. Nat’l Truck Leasing Asso.,
In short, the structure of the container-board industry is a double-edged sword. The industry features that Plaintiffs rely on-to make out them case for an antitrust violation also provide Defendants with a ready-made defense that they did not break the law. With this fact in mind, the Court considers the rest of Plaintiffs’ evidence in the context of the containerboard industry as Plaintiffs have described it.
2, Lockstep Price Increases
Plaintiffs’ prima facie case for a price-fixing scheme is the fifteen price increases that Defendants announced during the six and half years of the Class Period. Although Plaintiffs describe these announcements as “lockstep,” Table 1 gives a more precise look at these fifteen attempted price increases. In particular, the following is true about Plaintiffs’ prima facie case.
First, the time that it took Defendants to follow a leader’s price announcement Varied widely. In one of the announcements, three of the six Defendants never did join the. leader’s piice announcement. Of the three Defendants that joined the announcement, moving Defendant Georgia-Pacific made customer-specific price increases rather than follow. International Paper’s $40 blanket increase. For the remaining announcements which all Defendants joined,, the time it took a Defendant to make a follow-on price announcement
Overall, the pattern of price announcements in this case is less suggestive of “lockstep,” parallel behavior than that found in other price-fixing cases. Thus, at least on this dimension, the case at bar is distinguishable from Titanium Dioxide. See, In re Titanium Dioxide Antitrust Litig.,
Second, Defendants were not the only containerboard producers that timed their price increases to coincide with their competitors’. In fact, two of the fifteen announcements were led by a non-Defendant. Belatedly, the identity of the first firm to announce changed from announcement to announcement, meaning that no one Defendant led the majority of the announcements. The rotating leadership suggests that Defendants “had the ability to decide independently to initiate a price raise, which the other [Defendant] manufacturers could decide if they would follow.” Res. Supply,
Third,' not every Defendant led a price announcement. At least one court in this district has treated'leaders and followers differently when examining an antitrust claim based on parallel conduct., See, Alexander,
Although Westrock led two price increases over the entire Class Period, both of these instances preceded the company’s discharge from bankruptcy. Judge Milton Shadin’, who presided over the case before it was reassigned to this Court, ruled that Westrock “can be held liable only for its actions taken post-discharge.” Kleen Prods. LLC v. Int’l Paper,
Accordingly, in considering whether the case against Westrock should go to the jury, the Court may only look at the company’s conduct after it exited bankruptcy on June 30, 2010—or conduct within the last four months of the alleged conspiracy. During these last four months, Westrock did not lead a price increase. It joined one that failed.
These unsuccessful attempts make the inference that Defendants engaged in coordinated action less reasonable. For if there were unlawful coordination, exposing Defendants to the risk of enormous penalties, one might expect that Defendants would have taken the plunge only for better odds than they evidently got. The unsuccessful price increases also distinguish Defendants’ case from Titanium Dioxide. The court there rejected the defense of conscious parallelism because “that theory contemplates the possibility that a price leader would be forced to rescind its increase because competitors decided not follow it.” Titanium Dioxide,
Lastly, the Court could not detect in Defendants’ fifteen price announcements any notable break with their prior practice. While Plaintiffs argue that Defendants were vigorously competing in the period before the alleged conspiracy began, they have not adduced much evidence on Defendants’ pattern or practice regarding price announcements before the Class Period. The dearth of support on this point seriously weakens the inference of conspiracy. See, Twombly,
Indeed, what little evidence there is supports an inference that the parallel price increases were in line with historic behavior. Recall the one price announcement initiated by International Paper on March 31, 2003, or about 11 months before the beginning of the Class Period. This pre-conspiracy announcement, far from establishing a baseline from which a “radical” or “abrupt” shift occurred, looks much like its later counterparts. In this episode, Defendants followed International Paper’s lead with an alacrity that they often did not display during the alleged conspiracy. All Defendants participated in the attempted price increase; Georgia-Pacific followed International 'Paper’s announcement after just 3 days, Westrock a day thereafter, and PCA, the latest to announce, within 17 days. All but one Defendant announced the same increase of $35.00, and the one outlier (Temple-Inland) actually attempted to increase its price by more than the rest of the group. Finally, and perhaps most importantly for companies that allegedly en
As courts have been persuaded to grant or deny summary judgment based on thé extent of continuity with past behavior, these facts favor Defendants. Compare, Chocolate,
In sum, the Court concludes that, even in the context of an industry structure conducive to collusion, the fifteen price increases do not raise an “inference of conspiracy [that] is reasonable in light of the competing inferences of independent action.” Matsushita,
3. Supply Reductions as a Means to Support Price Collusion
The Court next examines the contention that Defendants restricted their supply over the Class Period. The parties have recently spilled 'much ink over the importance of this issue, with Plaintiffs insisting that supply reductions play only a supporting role in- their case while Defendants protest that the reductions lie at the heart of Plaintiffs’ conspiracy theory. Compare, e.g., ECF No. 1230 (Pls.’ Br.), at 2 (“Plaintiffs have always alleged a conspiracy to fix prices, aided by, among other things, numerous supply restrictions; not a conspiracy to reduce capacity.”), with ECF No. 1098 (Defs.’ Br.), at 1 (“Since the outset of this litigation, the crux of Plaintiffs’ Complaint was-'Defendants’ alleged across-the-board' reductions in container-board capacity.”) (internal citation and quotation marks omitted). With all due respect, the Court thinks the parties are missing the forest for the trees.
An agreement to fix prices is not separate or separable from a mutual understanding to reduce output. This is for the simple reason that ah effort to raise prices cannot succeed without a corresponding reduction in supply. As the Supreme Court has explained, “[t]he sales of even a monopolist are reduced when it sells goods at a monopoly price.” Eastman Kodak Co. v. Image Tech. Servs.,
Of course, Defendants may have been "completely unrealistic” and agreed to attempt price increases without being willing to reduce production. High Fructose,
With this clarification in mind, the Court examines the evidence that Plaintiffs have adduced to show that Defendants cut production over the Class Period. The evidence is quite weak (thus explaining the parties’ dispute over the, focus of the case). First, the Court notes that Plaintiffs’ various assertions about how much Defendants should have produced, but did not due to their conspiracy, often miss the mark. Plaintiffs appear to argue that if Defendants forwent some business, declined some customers’ orders, or generally gave up volume, they were acting against their independent self-interest and. so likely conspiring. But, even in the absence of an illicit agreement, Defendants may choose not to chase after every business opportunity.
The Seventh Circuit has made clear, that such disdain for additional business is rational. In the words of the court, “a rational profit-maximizing seller does not care about the number of customers it has but about-its total revenues relative to its total costs. If the seller loses a third of its customers because it has doubled its price, it’s ahead of the game because twice two-thirds is greater than one (4/3 > 3/3).” Text Messaging,
Second, even within- ■ this framework, Plaintiffs cannot dispute that Georgia-Pacific and Westrock did not restrict supply by closing any paper mill within the relevant time period (the Class Period for Georgia-Pacific and post-bankruptcy interval for Westrock). Plaintiffs argue, however, that the moving Defendants took “different forms of supply restrictions, including downtime and slowback,” and that it is “irrelevant” how Defendants reduced their supply. ECF No. 1230 at 54. This is not true.
A mill closure is a permanent reduction in supply, costly to reverse and likely impossible to do so within a short period of time. In contrast, machine downtime and slowback are temporary, easy-to-undo measures. A machine turned off (downtime) can be switched back on; a machine run at slower speed (slowback) can be ramped up. Both can happen much more quickly than the reopening of a closed mill. As such, a Defendant that shuttered its plants—a move Plaintiffs contend was sensible only in furtherance of a conspiracy and not justified by market forces—took much more risk than one that merely slowed production.
The form of supply restriction thus matters, and the particular form adopted here by the two moving Defendants—temporary measures such as downtime and slow-back that could be “quickly adjusted”— does little to make the inference of conspiracy more reasonable than lawful interdependence.
Third, the evidence that Plaintiffs have brought to show supply reductions (of any form) paints quite a mixed picture. For example, the evidence shows that Defendants added new capacity during the Class Period—they bought new mills as well as closed existing ones. Similarly, while Defendants reduced supply during the Great Recession, Plaintiffs admit that at least some of this reduction was justified by the decline in demand. Plaintiffs also do not dispute that Defendants cut capacity and production even before the conspiracy allegedly began and that, as a group, Defendants closed more mills before the Class Period than during it. Plaintiffs nonetheless seek to- excuse this anomaly by, positing that “capacity closures occurring before the Class Period set the, stage for coordinated price increases during the Class Period.” ECF No. 1230 at-58 (emphasis in original). The rationalization hardly strengthens Plaintiffs’ case—if Defendants closed mills before the Class Period despite not having an agreement to do so, then their mill closures during- the Class Period do not reasonably give rise to an inference that an agreement has taken place. Moreover, just about everything that Defendants did outside the Class Period can be characterized as “setfting] the stage” for the conspiracy. After all, everything helped Defendants to get to where they were when they purportedly entered into an agreement to fix prices.
The complicated picture regarding supply decisions forced Plaintiffs to make the argument ‘that Defendants did not simply restrict supply, but that they restricted supply “relative to demand.” See, e.g., ECF No. 1230 at 45. But Plaintiffs make this argument without presenting data on containerboard demand. Instead they seem to argue that because some of the price increases succeeded, Defendants must have reduced supply over and above the amount justified by changes in demand. The argument thus is supported by little more than the fifteen price.increases discussed previously.
Plaintiffs’ only other piece of evidence regarding demand is the level of inventories in the industry. Plaintiffs introduce statements indicating that Defendants maintained low inventories, which may suggest that demand outstripped, supply and so depleted inventories. However, Defendants point out that inventory—con-tainerboard produced but not yet sold— was expensive to carry, and, as such, they rationally wanted to minimize the amount of inventories in the system. In any case,
■ Moreover, Plaintiffs’ theory that Defendants reduced production “strategically,” or just around the time of the price announcements, is difficult to reconcile with economic reality. As explained supra, Defendants necessarily sell less container-board when they, sell them at dearer prices. Defendants therefore must restrict output whenever they sell at inflated prices. Plaintiffs seem to make an assumption to the contrary, indirectly positing that for the price increases to succeed Defendants needed to depress output only around the time of the price announcements. But Plaintiffs never explain why this assumption makes sense. If Defendants could have sold an unrestricted quantity of containerboard at higher prices, then why would they need to restrict production when they announced higher prices? If they could not sell such quantities, then why would they increase production in between price announcements (the non-strategic times)? In short, Plaintiffs’ theory of the case leaves more questions unanswered than the Court would think is appropriate at this late stage in the proceeding.
Lastly, even accepting all these shortfalls, Plaintiffs have not actually shoym that the moving Defendants restricted supply. Plaintiffs’ evidence of supply reduction comes from the expert report of Douglas Zona. Zona, however, conducted an analy•sis of all the Defendants’ aggregate supply over the Class Period. Taken at face value, his analysis shows that Defendants, as a group, reduced their capacity during the Class Period over and above reductions predicted for a benchmark group not accused of conspiracy. But the analysis is mum as to any one Defendant within this group. In particular, it sheds no light on whether Georgia-Pacific and Westrock reduced their capacity during the relevant time period. Indeed, Georgia-Pacific has shown that its own capacity during the Class Period was higher than that of the benchmark group not suspected of conspiracy. Westrock, taldng a different tack,- argues that its one supply reduction made after its discharge from bankruptcy was planned months in' advance, while it was still in bankruptcy, was approved by third parties overseeing its restructuring, and reflected routine, scheduled maintenance of its machines.' Even if the Court discounts these explanations, then still the burden is on Plaintiffs to show that this reduction—the only one relevant for Wes-trock’s liability in the case—deviated from the non-conspiracy benchmark. This, Plaintiffs have not done as their expert’s analysis focused on the entire Class Period (as well as all Defendants).
Plaintiffs seem to fall back on the position that even if they have not shown that the moving Defendants restricted supply, then still this is not fatal to their case. For this proposition, Plaintiffs cite High Fructose, where the court said: “Maintenance of excess capacity discourages new entry ... and also shores up a- cartel by increasing the risk that its collapse will lead to a devastating price war ending in the bankruptcy of some or all of the former cartel-ists.” High Fructose,
For these reasons, the Court is of the view that Plaintiffs have not made a case allowing for a reasonable inference that Defendants restricted supply to facilitate their price-fixing scheme. This finding is near fatal to their conspiracy claim.
4. Acts against Self-Interest as Evidence of Collusion
Nonetheless, the Court pushes ahead and considers the rest of Plaintiffs’ evidence. In-this last category of economic evidence, Plaintiffs point to acts that suggest illegal collusion because they appear contrary to Defendants’ independent self-interest. Some of these actions have been alluded to previously, including the-fact that Defendants raised prices during the Great Recession, and conversely, that they cut production in a period of high demand preceding the recession. However, courts have found that neither of these actions unambiguously suggests behavior against self-interest. See, Plasma-Derivative,
Ultimately, the Court does not see why it would be more rational or reasonable for Defendants to have adopted this course of behavior as cartelists locked in an illegal agreement than as independent acting firms. For example, Plaintiffs assert that Georgia-Pacific had such low inventories during a period of high demand that its employees voiced concerns that “we may not have customers left to raise our prices to if we do not get some paper.” ECF No. 1230 at 81; ECF No. 1280 ¶ 165; ECF No. 1227, Ex. 398. However, the low inventories and the lack of customers would present a problem whether or not Georgia-Pacific was part of a conspiracy. Georgia-Pacific needed paper to sell, and it needed customers to sell it to, whether or not it was conspiring. The fact that an employee was worried that the company had neither does not make it more likely that Georgia-Pacific was unlawfully colluding with fellow Defendants. Perhaps Georgia-Pacific had bad business planning, but this is not what this antitrust action is about. Likewise, a statement by a Wes-trock customer complaining about the company’s 2010 price increase indicates nothing conspiratorial. The customer had written to Westrock: “You still suck. This increase will put your customers in bankruptcy, then what will you do?” ECF No. 1230 at 83; ECF No. 1280 ¶ 175; ECF No. 1277, Ex. 416. Certainly, the customer was unhappy, but incurring a customer’s wrath or risking his business seems.a distinct possibility with any price increase regardless of whether Westrock was acting as a-cartelist or opportunistically increasing its price when its . competitors did so.
Parenthetically, the Court notes that, to the extent Plaintiffs are relying on the Great Recession to argue that the demand curve for containerboard shifted inward during this time, then a shift in demand hit Defendants whether they were colluding
Besides price and output, Plaintiffs also highlight ■ another aspect of 'Defendants’ businesses: the trades of containerboard among Defendants’ firms. Defendants admit that they engaged in such inter-firm-trading. That is, they admit that they sometimes bought containerboard from other paper companies, their alleged conspirators included. However, Defendants assert that they had legitimate reasons for making such purchases instead of producing their own. In particular, they claim that it was sometimes cheaper to buy from a competitor than to make the container-board internally and ship it to a far-flung customer. Plaintiffs, in turn, concede that such decisions are not in themselves suspect. See, Univ. Life Ins. Co. v. Unimarc, Ltd.,
Nonetheless, seizing on language from High Fructose, Plaintiffs contend that the “possibility” exists that Defendants were using the trades to “shor[e] up” their cartel. High Fructose,
But if the firm could supply its customer (remember there- was a lot of excess capacity in the HFCS industry during the period of the alleged conspiracy) and at a lower cost than its competitor would charge, why would it buy from the competitor rather than expanding its own 'production? The possibility .that springs immediately to mind is that this is. a way of shoring up a sellers’ cartel by protecting the market share of each seller,
Id. (emphasis in original). The cartel-possibility thus, “springs immediately to mind” only when two conditions are satisfied: (1) the firm could supply its customer, as would be the case if there was a lot of excess capacity in the industry, and (2) the firm could do so' at a lower cost than its competitor. Plaintiffs have not shown that either of these conditions existed here. First, Plaintiffs’ claim that Defendánts shuttered capacity and maintained, low inventories actually makes it plausible that Defendants sometimes could not supply their-own customers and would prefer to buy from -their competitors. See, High Fructose,
The Court is thus not .convinced that the trades, were against Defendants’ self-interest. This is regardless of whether it looks at the trades from the buyer’s perspective; as discussed 'in the preceding, paragraphs, or from the seller’s point of view. Plaintiffs introduced one piece of documentary evi
The evidence, however, falls short of establishing such below-market pricing. The evidence here consists of an email dated July 29, 2008 from an employee of Westrock to his counterpart at International Paper. See, ECF No. 1230 at 9, n. 34; ECF No. 1231 ¶ 163; ECF No. 1227, Ex. 396. The email thus does not implicate Georgia-Pacific, the other moving Defendant in this case. As to Westrock, the communication predates the company’s discharge from bankruptcy and so does not shed light on whether Westrock joined or rejoined the conspiracy after that date. It is therefore of little value.
Nonetheless, the Court has perused the content of the document. It found this, too, wanting. In the email, the Westrock employee acknowledged that International Paper had asked Westrock to “price protect” one of its orders from a recently announced price increase of $66.00. ECF No. 1227, Ex. 396. Westrock agreed. Id. As part of its concession, however, Westrock then requested that “IP in similar support, forgo the $40/ton increase proposed for the SBS business effective August 1st.” Id. The email thus shows that Westrock and International Paper bargained with each other, as might any firms not suspected of conspiracy. Moreover, that International Paper appears to have bargained successfully and gotten itself a discount raises no red-¡flags since, as Plaintiffs admit, discounts off list price were a common occurrence in the eontainerboard industry.
In sum, the Court finds that the economic evidence is not sufficient to permit a reasonable jury to conclude that Defendants worked together to fix prices. Even in the context of a eontainerboard-industry as Plaintiffs have described it, Defendants’ decisions to increase prices, reduce supply, and trade with each other remain as consistent with permissible competition as with conspiracy. The Court next asks whether adding the non-economic evidence to the mix changes the picture.
C. Non-Economic Evidence of Agreement
The Court now considers the non-economic evidence of conspiracy. See, Flat Glass,
1. Trade Association Meetings, Phone Calls, Inter-Firm Trades, and Public Messages as Opportunities to Collude
Plaintiffs press that Defendants had many opportunities to collude as they interacted frequently with one another. In particular, Plaintiffs point to trade association meetings, phone calls among Defendants, and inter-firm trades as channels by which Defendants could communicate with each other and thereby enter into an agreement to fix prices. Relatedly, Plaintiffs advance a theory in which Defendants used their own public statements and industry analysts as “conduits” to signal to each other and coordinate their price and supply decisions.
With this said, the Court examines the evidence with regards to the first communication venue: trade association meetings. As the Seventh Circuit has said, “[m]ere membership in a trade association, attendance at trade association meetings and participation in trade association activities are not, in and of themselves, condemned or even discouraged by the antitrust laws.” Moore v. Boating Indus. Assos.,
In the next section, the Court examines closely Plaintiffs’ contention that the price announcements coincided with trade association meetings. For now, it is important to note two things.
One, a likely effect of inferring conspiracy from mere temporal proximity of a trade association meeting and a price announcement is to stop corporate officers from attending such meetings. Imagine an executive who contemplates going to a trade association meeting. The executive does not know (unless he really is conspiring with his competitors) whether any one of those competitors may be getting ready to announce a price change sometime during, shortly before, or shortly after the meeting. The executive, however, likely prizes his company’s ability to follow that change should one materialize. If his doing so after having attended a meeting arouses suspicion of illegal collusion, then the executive may forego all meetings. The same goes for an executive who knows that he is planning a price change, since this executive cannot prevent his competitors from following his lead. The result is to turn what all parties agree is a legitimate activity—attendance in trade association meetings—to something that corporate officers may all avoid.
Two, the chilling effect on lawful conduct is mitigated to the extent that something moré than temporal proximity is required to infer conspiracy. The most natural “something more” seems to the Court to be evidence of the substance of the communications exchanged at these meetings. But Plaintiffs have little' to offer on that front. Besides the price increases themselves, Plaintiffs bring nothing to suggest that Defendants discussed pricing during their various interactions. Under such circumstances, to infer that an agreement to
The same rationale applies to the phone calls among the various employees at -Defendants’, companies. Again, the next section discusses in detail the frequency of these calls. But the mere fact that Defendants were in constant communication with one another does not, without more, suggest that Defendants agreed to fix prices. See, Monsanto Co. v. Spray-Rite Serv. Corp.,
This customer-supplier relationship is what Plaintiffs attack next. Plaintiffs charge that Defendants are each other’s “best customers, an arrangement they used to pass information along to each other.” ECF No. 1230 at 34. First, there is nothing inherently suspicious about competitors also being each other’s customers, or even each other’s largest customers. See, Dairy Farmers,
In coming to this conclusion, the Court examined the communications Plaintiffs have highlighted in their brief-that-involved either Westrock or Georgia-Pacific. The one communication to which Westrock was a party is an email from a Westrock employee to a Temple-Inland employee. See, ECF No. 1230 at 71; ECF No. 1231 ¶ 120; ECF No. 1227, Ex. 318. The email informed Temple-Inland of Westrock’s latest price increase; it is dated July 1, 2010—the same date as Westrock’s public announcement of its price increase—and contains the same information as. the public announcement. As such, the email merely conveyed publicly available information, and the Court cannot see how that is improper. Cf. Publ’n Paper,
As for Georgia-Pacific, the communications between the company and the other Defendants consisted of information needed to trade, e.g., price, quantity, and time frame for delivery. See, ECF No. 1230 at 24; ECF No. 1219 ¶ 48 & Ex. 74-75. The exchange of this information would be
Plaintiffs also dwell on Georgiar-Pacific’s failed merger talks with International Paper, charging that “GP and IP were using merger discussions as a pretext to collude.” ECF No. 1230 at 71. Plaintiffs are merely speculating that Defendants colluded during these interactions, as the evidence to support the inference that anything specific to containerboard prices or production was -exchanged; during these talks is thin to nil.
Finally,- Plaintiffs raise a “conduit” theory, whereby Defendants- used their own public statements and industry analysts to leak confidential information to their alleged conspirators. According to Plaintiffs, the leaks served as signals to co-conspirators to raise prices or reduce supply, thereby coordinating the conspirators’ activities and facilitating the conspiracy.- •
■ With'respect to the' analysts; the Court notes that Defendants should not be held accountable for what these third parties said unless Defendants were somehow responsible for the content of the- analysts’ communications. Yet, many of the analysts’ statements Plaintiffs highlight involve neither moving Defendants, and none of the statements implicate Westro'ck in the period after its bankruptcy. See, ECF No. 1230 at 73-77.
Even were the statements to be aggregated and all Defendants lumped together, then still the bulk of the communications could not have reasonably facilitated anything. For example, Plaintiffs assert-that, “Following Defendants’ 2003 and early 2004 supply restrictions, Mr. Wilde announced that inventories were at ‘an extremely lean level,’ enabling Defendants to implement their June 2004 price increase.” ECF No. 1230 at 74.-There is no suggestion from this alone that Wilde, an analyst that Plaintiffs focus heavily on, learned about the level of inventories from one of the Defendants.- Likewise, there is no indication that low inventories constitute confidential information that needed to be “leaked.” Furthermore, Defendants were presumably aware of the basic economic fact that output reductions allowed for prices -increases. Each had- already restricted supply; .all that was left was to raise prices. The Court does not see how Wilde’s statement “enabled]” Defendants to do anything they were not already prepared to do.
' Finally, the Court examines Defendants’ own public statements. To 'the extent that Plaintiffs argue .that such statements are improper because they disclose “granular details- and public commitments to other Defendants,” ECF No. 1230 at 77-78, the support for that- argument is an expert report that .has been excluded in large part by the Court’s Daubert ruling. See, Kleen Prods.,
2. Price Increases around Communications as Evidence of Opportunities Seized
■ Even though the price, increases and the Communications were not suffi-
The Court examines these types of communications one by one to determine whether “the immediate sequel to any of [them]” had been a price increase. Id. The conclusion the Court comes to is that, given how frequently these communications took place, it would be more of a surprise if a price increase did not happen sometime around one of them.
To take the trade association meetings first: there were 505 such meetings during the 2,458-days long Class Period. See, ECF No. 1350. This means that there was, on average, a trade meeting every five days during the. Class Period. Plaintiffs object that some of these meetings should not be counted because they are not “relevant based on, inter alia, subject matter and/or ... [Plaintiffs] lack evidence that two or more Defendant representatives attended or participated.” Id. at 1 n.1. The Court wonders what subject matter is relevant to “illegal conspiracy” such that Plaintiffs can tell when a meeting’s subject matter is not relevant. Nevertheless, going strictly by Plaintiffs’ count, there were still 263 meetings during the Class Period, or about a meeting every 10 days. (The Court recognizes that the meetings are not uniformly distributed. in between the start and end date of the Class Period, but the approximation is close enough. Moreover, because some meetings lasted more than one day, more days included a meeting than this calculation suggests.) With these many meetings, it would be an anomaly if some of the price increases did not happen close to a' meeting daté. As such, the fact that some of them did raise's no inference of anything untoward having taken place at the meeting.
This conclusion holds whether the Court adopts the reasoning of the court m.Vals-par, as Defendants urge, or Titanium Dioxide, as Plaintiffs wish. In Valspar,. the plaintiff made much of the fact that the “vast majority” of. the defendants’ price increases occurred “within 30 days before or after a General Committee meeting of the TDMA.” Valspar,
Here, the Court is not dealing with quarterly meetings. Instead, the evidence is .that two or more of the Defendants had a meeting every 10 days or so. A meeting every 10 days means that 100% of the price increase announcements will, with certainty, happen within 10. days of a meeting. By either the standard of Valspar or Titanium Dioxide .then, announcements coming within days of a meeting are nothing unusual or noteworthy.
■ As for Westrock, one of its officers attended a trade association meeting in the period after its bankruptcy discharge. Georgia-Pacific .and International Paper had already made their price announcements before the meeting took place, and Temple-Inland announced on the same day as the meeting. Westrock followed the day after. Westrock brings documentary evidence to argue, that it contemplated the price, increase weeks before the meeting, and that the decision to announce was precipitated by Georgia-Pacific, International Paper, and Temple-Inland’s announcements and not any illicit exchanges during the meeting. Even if the Court disregards the explanation, it must recognize that to infer conspiracy from this evidence alone would chill Westrock’s trade association participation. Moreover, the inference would be based on nothing more than' temporal proximity between two things that the law allows Westrock to do: attend trade conferences and follow price increases. The chilling effect seems especially biting in this instance as the initial' price announcements happened before the meeting.
The Court thus hesitates to infer conspiracy from the timing of events alone, especially when that timing does not appear out of the ordinary. Its hesitation is doubled with regard to the phone calls, since there were even more phone calls than trade association meetings. Plaintiffs have submitted evidence that over a thousand phone calls were exchanged among the seven Defendants over the six and a half years of the alleged conspiracy. See, ECF No. 1213, Ex. 2. Again, with these many calls, whenever Defendants announced a price increase, the announcement will be near a phone call.
Still, the Court has attempted to put on its most conspiratorial-minded hat in reviewing the specific calls that Plaintiffs highlight in their brief. But even so attired, the Court cannot make out an inference of conspiracy. from what Plaintiffs have cobbled together. First, many instances of the calls highlighted were too remote from the time of the price announcement to count as- being “simultaneous” or “near-simultaneous.” Second, the pattern as to who called whom and who actually ended up announcing a price increase shortly thereafter was a total mixed-bag. And, finally, there were simply too many phone calls for any particular call to be out of the ordinary.
The Court concludes that the timing .of the events is insufficient to reasonably raise an inference of conspiratorial agreement. • The Court’s conclusion is bolstered by the fact that Plaintiffs have introduced no evidence as to the substance of these talks. See, In re Text Messaging Antitrust Litig.,
The areas' where Plaintiffs do have something “other than speculation about the substance” of the talks are the public announcements where Defendants allegedly signaled to their co-conspirators and used analysts as conduits for. their messages. Text Messaging,
3. Incriminating Words Suggesting Agreement
Plaintiffs try again, this time pointing to Defendants’ own words not as evidence of leaks or signals, but as more direct evidence of an agreement. Defendants’ statements incriminate them in this way if they show any of the following: (1) Defendants were aware of an agreement to fix prices; (2) Defendants weré exhorting others to join an agreement; or (3) Defendants were manifesting assent to an agreement. See, High Fructose,
Viewed in this light, the supposedly incriminating statements that Plaintiffs highlight appear “as consistent with permissible competition as with illegal conspiracy.” Matsushita,
The Court cannot do so for. several reasons. First, the document has little probative value with regard to any Defendant other than Westrock since there is no evidence that any other Defendant was even aware of, much less adopted, the state-
Nor do Plaintiffs much advánce' the ball by pointing to Defendants’ use of the words “discipline,” “rationalization,”’ or “good behavior.” According to Plaintiffs, “discipline” and “rationalization” refer to supply restrictions, while “good behavior” indicates that Defendants are exercising “discipline.”-But for the same reason that independently restricting supply is not unlawful, it is not unlawful for Defendants’ employees to talk about doing so either. Of course, if Defendants had crossed the line .into encouraging their competitors to exercise discipline, then their talk would become actionable conduct (or at least indicate that a conspiracy was afoot). However, there is no evidence that this happened, In the voluminous record that Plaintiffs have introduced, Defendants discussed “discipline,” “rationalization,” etc. only in' their own, internal documents. There is no evidence that Defendants shared these documents with their competitors or otherwise publicly pontificated on the desirability of- industry-wide discipline. Defendants’ words thus never strayed into territory suggesting agreement. Cf. In re Domestic Airline Travel Antitrust Litig.,
It is. true that there .is hearsay evidence that Georgia-Pacific’s CEO gave a presentation in which he told the audience that the industry must “not make agreements where customers receive all of the benefits and the suppliers are not paid for any of it” and must “learn to say ‘no’ on deals when they are not profitable.” ECF No. 1230 at 79. A newspaper reported on the presentation, and the newspaper clipping is Plaintiffs’ proffered evidence that the CEO .made the comment. Georgia-Pacific is correct that the newspaper clipping is hearsay. See, Eisenstadt v. Centel Corp.,
The Court concludes that they do not. The CEO’s comments do not rise to a level
The Court is further persuaded by the fact that the CEO made this comment as part of a public speech given at a trade association made up primarily of customers. While it is the case that “Defendants cannot rely on the public or semi-public nature of trade meetings to immunize their statements from antitrust scrutiny,” Standard Iron,
After six years of extensive discovery, more than a hundred depositions, and millions of documents produced in discovery, the statements that Plaintiffs were able to gather simply are not incriminating. This is all the more evident when the Court compares these statements to those found in cases where the courts have ruled that summary judgment was inappropriate. In High Fructose, for instance, the Seventh Circuit reversed the lower court’s grant of summary, judgment when the record showed that the defendants had said things like “[w]e have an understanding within the industry not to undercut each other’s prices”; “our competitors are our friends”; and “every business I’m in is an organization,” whereby “organization” appeared to mean “price-fixing conspiracy.” High Fructose,
To recap, the Court has now considered the evidence, economic and non-économic alike, that must “‘tend[] to exclude the possibility’ that the alleged' conspirators acted independently.” Matsushita,
D. The Evidence That Was Not There
Indeed, when the Court, considers the evidence that is: missing from the case, conspiracy becomes the less likely of; the competing inferences. In an alleged conspiracy that spanned six and a half years, involved seven Defendants of varying sizes and strategic positions, included fifteen ■price increase attempts during'both years of.prqsperity and recession,, and subsumed wide variations in how quickly or willing Defendants were to follqw a price increase
In fact, there is no evidence of a punishment mechanism at all. This is troubling to Plaintiffs’ case for cartelization, for “[g]ame theory teaches us that a cartel cannot survive absent some enforcement mechanism because otherwise the incentives to cheat are too great.” Petruzzi’s,
A punishment mechanism is crucial for another reason as well: it helps to distinguish illicit express collusion from lawful tacit collusion. With express collusion, there is prior agreement to act a certain way; with tacit collusion, there is only expectation or hope that a competitor will act, and fear that it will not. See, Text Messaging,
Plaintiffs attempt to excuse the lack of evidence, not just on this point but also more generally, by arguing that Defendants are experienced with antitrust litigation and so know to destroy evidence. The Court cannot credit such a position, especially given that the evidence to support it is ambiguous at best and Plaintiffs have had extensive discovery to uncover even that which Defendants wish to hide. More pragmatically, the Court does not know what to do with the contention that wholesale evidence has been destroyed. What should the Court assume has been gotten rid of during the six and half years of conspiracy? How devastating should the Court speculate the shredded evidence to have been? This is not a case where a single document, or even several related documents, are alleged to have been destroyed, and the Court could make an adverse inference as to what the missing evidence would have shown. Cf. Text Messaging,
In sum, when the Court considers both the evidence that has been presented and that which is missing, Plaintiffs’ case falls even further from the mark necessary to survive summary judgment.
E. The Evidence as a Whole
Before it shuts the door on this litigation, the Court takes a step back and looks at Plaintiffs’ conspiracy claim and the evidence supporting it as a whole. See, e.g., Omnicare,
Yet High Fructose and Text Messaging resulted in divergent outcomes. Judge Pos-ner, who wrote both opinions, reversed the lower court’s grant of summary judgment in favor of the defendants in High Fructose. Thirteen years later, he affirmed a similar grant in Text Messaging. Whatever are the differences that drive the different outcomes in the two cases, they are not the economic evidence. As Judge Posner acknowledged in High Fructose, the decision to reverse the lower court’s grant of summary judgment in that case was not based on the economic evidence since “all of this evidence is consistent with the hypothesis that [the defendants] had a merely tacit agreement, which at least for purposes' of this appeal the plaintiffs concede is not actionable under section 1 of the Sherman Act.” High Fructose,
Moreover, the non-economic evidence of conspiracy was at points stronger in Text Messaging, the case in which the Seventh Circuit affirmed summary judgment in favor of the defendants. For instance, the Text Messaging plaintiffs had brought evidence regarding opportunities to conspire that was absent from High Fructose. In particular, the Text Messaging complainants, like Plaintiffs in this case, pointed to “the trade association of which the defendants were members” and argued that they “were forums in which officers of the defendants met and conspired to raise [] prices.” Text Messaging,
Nonetheless, the non-economic evidence in High Fructose won the case for the plaintiffs, and the'crucial piece of evidence came from what the defendants had said. In Judge Posner’s words, the evidence to show “that there was an explicit agreement to fix prices” consisted of things like:
One of Staley’s HFCS plant managers was heard to say: “We have an understanding within the industry not to undercut each other’s prices.”
A Staley document, states that Staley will “support efforts to limit ,HFCS pricing to a quarterly basis.” Presumably the reference is to efforts by its competitors.
The president of ADM stated that “our competitors are our friends. Opr customers are the enemy.”
A director of Staley was reported to have said that “every business I’m in is an organization” ... [where] it appears that “órganization” meant price-fixing conspiracy.
The Court concludes that this case lies closer to Text Messaging than High Fructose. Here, like in Text Messaging but unlike High Fructose, Defendants have said nothing that can be reasonably construed as acknowledgment of an agreement. See, supra, Section III.C.3. If as appears to be the case, this is the dispositive difference between Text Messaging and High Fructose, then the Court should grant summary judgment for Defendants on this basis alone.
More still, besides what they have (hot) said, what Defendants in this case have done is “as consistent with permissible competition as with illegal conspiracy” and their conduct cannot “support an inference of antitrust conspiracy.” Matsushita,
“[Z]ero plus zero, equals zero,” and for something more to be added to that equation, it must be some quantum of probability more unlikely for Defendants to have done all of the things they did, absent agreement, than for them to have done any one of those things. High Fructose,
Plaintiffs have amassed a wealth of evidence, but the evidence is only such that it’s “absence would tend to negate both” express and tacit collusion but its “presence [did] not point unerringly to express collusion.” Text Messaging,
This case highlights, the difficulty of attempting “to prove illegal collusion without witnesses to an agreement.” Text Messaging,
IV. CONCLUSION
Por the reasons stated herein,' Defendants’' Motions for Summary Judgment [ECF Nos. 1086 and 1088] are granted. The Cross Motions for Partial Summary Judgment [ECF Nos. 1114 and 1138] are denied as moot, as are the Motions for Daubert and summary judgment hearings [ECF Nos. 1272 and 1273].
IT IS SO ORDERED.