Valspar Corp. v. E.I. Du Pont De Nemours & Co.

required seaman, skill and care that is

and that his failure was the cause of Ta-

gle’s injury.

CONCLUSION above,

For the reasons stated VACATED,

district judgment court’s

and the case is with instruc REMANDED

tions finding court enter a

negligence of Tagle’s injury.3 as the cause CORPORATION; Valspar

VALSPAR

Sourcing, Inc., Appellant

v.

E.I. DU PONT DE NEMOURS

AND COMPANY

No. 16-1345 Appeals,

United States Court of

Third Circuit.

Argued March

(Filed: 2017) September Act, Liability knowledge privity 3. Under the Limitation of had of those same acts “[wjhether (internal seq., negligence.” § quotation U.S.C. et vessel Id. marks omitted). liability requires owner is entitled to limit its and alterations The district court two-step analysis.” shipowners negli- Otal Invests. Ltd. v. concluded that the were not M/V CLARY, (2d gent, ground. and dismissed on that The court First, privity. the court must whether determine acts therefore did not on the issue of rule negligence negligence caused the accident which As we conclude that estab- "Second, lished, plaintiff's injuries. caused Id. the case is for a remanded determina- ship privity. court must whether the determine tion on the issue of owner King Street,

920 North One Rodney 19801, Square, Wilmington, DE Counsel ' for Plaintiffs-Appellants Adra, Crowell & Moring, Randa Avenue, Floor, York, Madison 20th New NY Elgarten, Clifton S. R. Shari Wastler, [Argued], Benjamin Lahlou C. Moring, Crowell & 1001 Pennsylvania Av- enue, N.W., Washington, DC Kath- McDonough, leen F. Sensing, A. Pot- John ter Anderson & Corroon, 1313 North Street, Wilmington, Market DE Counsel for Defendant-Appellee Brunell, Richard M. American Antitrust Institute, Suite 1730 Rhode Island Avenue, N.W., Washington, DC Counsel for American Antitrust Institute Curiae in support Amicus of Plaintiff- Appellant KRAUSE, Before: HARDIMAN and STENGEL,* Judges, Circuit Chief Judge. District OPINION OF THE COURT HARDIMAN, Judge Circuit appeal alleged conspira- This involves an cy to fix in the titanium dioxide industry in violation of Section the Appellant Valspar, pur- Sherman Act. dioxide, Appel- chaser of titanium claimed conspired lee DuPont with other titanium suppliers prices. Valspar dioxide to fix ar- gued price-fixing agreement that the was primarily thirty-one made by par- manifest allel increase announcements issued by suppliers. the DuPont countered that [Argued], parallel pricing product James M. Lockhart James P. the was the Wendt, McCarthy, Kathryn Lindquist agreement, but E. rather the natural con- Vennum, & Street, sequence marketplace. Specifically, South 8th 2000 IDS the Center, Minneapolis, posited MN DuPont Frederick because the market Cottrell, III, L. Rawnsley, Jason J. for titanium is an oligopoly, Chad dioxide the Shandler, M. & Finger, movement Layton Richards was caused “conscious * Pennsylvania, Stengel, sitting by designa- The Honorable Lawrence F. Chief District of Judge United States District for the Eastern tion. II ex- theory that

parallelism”—an economic naturally follow a plains oligopolists will pur of titanium In a class dioxide hopes competitor’s price-fixing against action chasers filed a increase. profits firm’s The that each will suppliers in District the United States agreed DuPont and District Court with. Maryland. for District Vals- Court judgment. summary for granted motion of that par opted class and remain out affirm. willWe ing suppliers' settled case defendant summary judg

after were denied I Dioxide Antitrust ment. See re Titanium (D. tig., F,Supp.2d Li essentially The facts this case were 2013). Valspar its' then filed own claim Md. par- undisputed in District Court. for United District Court States for titanium agree that the market ties Minnesota, District which was subse oligopoly. is an Titanium dioxide dioxide claims quently severed. settled all no substi- commodity-like product DuPont, except against this one which tutes, by a hand- the market is dominated States District the United transferred firms, there are ful substantial bar- Delaware, for the Court District where entry. riers summary Al judgment. DuPont moved large-scale purchaser Valspar, a tita- though “substantially presented with dioxide, of tita- alleges group that a nium Maryland same record ... as Class in- conspired to nium dioxide suppliers Action,” the District Court “dif reached prices. It that the conspiracy crease claims Valspar Corp. E.I. v. ferent conclusion.” Ameri- began largest DuPont—the when Nemours, Du De Pont Dioxide supplier—joined can Titanium (D. 2016). Reviewing Del. record (TDMA) in Association Manufacturers precedents, Court’s the District and our 2002, partic- opened association the when found that “evidence actual Court ipation companies; Short- non-European agreement prices” “lacking.” to fix Id. was TDMA, an- ly joining the after DuPont Reasoning is that such 253. two price a Within nounced increase. necessary plaintiff survive sum - weeks, price increase DuPont’s judgment, granted District mary Court the Kronos, Millennium, matched by Id. DuPont’s motion. (other members TDMA Huntsman alleged conspiracy). of the This' members III began Valspar alleged the what to be jurisdiction un- The District Court had years during “Conspiracy Period”—twelve § have 28 1331. appellate U.S.C. We der conspirators alleged the announced which § jurisdiction under 1291. Our 28 U.S.C. times. price increases 81 of review is intertwined with sub- standard Valspar claims ended parties antitrust stantive law and dis- 2013 late DuPont exited TDMA. when its pute begin contours. We therefore ‘ calculations, According Valspar’s reviewing applicable law. conspirators the cost of titanium inflated average of 16%. by an Because dioxide A billion titanium purchased $1.27 during 1 of the Act from Section' Sherman DuPont dioxide relevant contract, “[e]very overcharged it combination in period, prohibits claims it was otherwise, conspira- or form tune million. trust $176

191 § cy, 206); restraint of Hovenkamp, supra, trade.” U.S.C. & see also In Act, § Messaging Unlike 2- the Sherman which Text re Antitrust Litig., 782 867, (7th monopolization illegal 2015) and other addresses (oligopolists conduct, § applies only unilateral when hawks”). “watch each other like trade; to restrain there This “oligopolistic rationality” can cause action, single independent so a firm’s no supracompetitive prices because it discour- aim, anticompetitive its matter how does ages price reductions while encouraging § implicate v. Spray- Monsanto Co. price increases. A firm is unlikely to lower 752, 761, Corp., Rite Serv. 465 U.S. price its in an effort win market share (1984). 1464, S.Ct. 79 L.Ed.2d 775 While competitors quickly because its will learn § some offenses under are reviewed’for it, of that reduction match causing reasonableness, Leegin Creative Leather first profits mover’s to decline and a subse- Prods., Inc., PSKS, 877, Inc. v. 551 U.S. quent profits decline in the overall of the 2705, 885-86, 127 S.Ct. L.Ed.2d 623 industry. Flat 359. Simi- (2007), no possible competitive others have larly, if price increase, firm announces per illegal; virtue are therefore se other market will know that participants Music, Broad. Inc. v. Columbia Broad. they “if do not. their to [the Inc., 1, 19-20, 99 Sys., 441 U.S. S.Ct. 1551 level, first-mover’s] [the first-mover] (1979). (ie., price price Horizontal fixing forced reduce their level. fixing among competitors) per is one such firms this, Because each of other know se it is “threat to violation because will whether it better each consider off system of nervous the economy.” central charging all when the old or [the Co., v. Socony-Vacuum United States Oil They obviously new one]. will [the choose n.59, 310 U.S. 60 S.Ct. price] new believe when that will (1940). L.Ed. industry Id. profits.” maximize (quoting Oligopolies problem pose special under supra, 207-08). Areeda & Hovenkamp, rational, § 1 independent actions Supreme . The has explained that Court by oligopolists nearly taken can be indis this behavior does not violate antitrust tinguishable fixing. horizontal Grp. laws. Ltd. v. See Brooke Brown & problem “interdepen This is the result Corp., Tobacco U.S. Williamson dence,” “any which occurs because rational 2578, 125 113 S.Ct. L.Ed.2d 168 an oligopoly] decision must take into [in (1993). though interdependence Even such anticipated account reaction the oth parallelism” or “conscious harms consum- firms.” In Flat er re Glass Antitrust Li - just does, as monopoly beyond ers is 2004) (alter 350, (3d tig., 385 F.3d 359 Cir. the reach laws for two antitrust reasons. omitted) Philip E. (quoting ation Areeda & First, courts scholars theorize some Hovenkamp, Herbert Antitrust Law 207 interdependent “that behavior is not an (2d. 2000)). many ed. In a market with ‘agreement’ meaning term’s firms, within the un- any .single “the effects of firm’s Act;” Glass, the Flat der Sherman 385 ánd output decisions ‘would be so Turner, (citing Donald F. F.3d The among competitors diffused numerous its they Agreement Under the Sher- any be aware of would Definition of change.’” Act: Conscious Id. man Parallelism and Re- (quoting Areeda & Hoven Deal, 655, 206). to L. kamp, supra, opposite at The 75 Harv. Rev. 663- true fusals (1962)). second, oligopoly, an in movement And “it is’ close to im- any where impact possible judicially “will have noticeable mar devise a enforceable (quoting remedy ‘interdependent’ on its pricing.” ket and rivals.” Id. Areeda Pipe In re Corp. v. Iron Soil Chocolate in its Clamp-All Cast favor.” Confection (3d Litig., 383, ary Antitrust (1st 1988) Inst., 801 F.3d 478, Cir. J.). problem The is this: “How (Breyer, to set one order firm its does However, recognized we have regard likely reactions

without important “an there is distinction” competitors?” Id. cases. Flat standard in antitrust general Glass, “[AJntitrust law B range permissible limits the inferences § 1 ambiguous in a case.” “When faced with whether Elec. v. Ra Indus. Co. Zenith Matsushita proof an plaintiff has offered sufficient 588, Corp., dio judg 574, preclude summary 475 U.S. S.Ct. 1348, (1986). ment, Specifically, 89 L.Ed.2d 538 generally apply a court must summary permissible as consistent judgment same standards “conduct with Glass, competition illegal conspiracy in other does apply contexts.” alone, not, standing support a court enter inference Accordingly, F.3d at 357. will Id.1 conspiracy.” reason summary judgment of antitrust when rigorous is that genuine dispute “no as to mate for this more standard shows costly in especially fact and the movant is entitled to inferences rial mistaken are cases, penalize judgment as a of law.” Fed. R. Civ. antitrust since could matter 56(a). judgment competitive “chill summary P. As behavior and other desirable contexts, very we as a conduct laws “review record whole antitrust Id. protect.” 106 S.Ct. light designed most favorable nonmovant, drawing reasonable inferences 1348.2 colleague dissenting interpretation of Mat-

1. As and our While dissent's out, reasonable, contrary Third point alleged it is con- sushita Matsushita involved an sense,” jurisprudence. we Circuit did spiracy that not make "economic plaintiff oligopoly held that a case 475 U.S. 106 S.Ct. provide that the must inferences that show be- Court declined draw liberal inferences alleged likely than conspiracy is "more the defendants "had no eco- cause rational Glass, not.” 801 F.3d And in Flat at 412. conspire,” nomic motive to id. at rejected we considered the dissent’s unlikely-to-succeed S.Ct. 1348. While these reading more limited of Matsushita ac- conspiracies provide good one reason to be knowledging some scholars think our inferences, circumspect in our we have ex- extension of is "an unfortunate Matsushita plained oligopolistic interdependence misinterpretation” that case while none- provides good another reason for inferential "circumspect ap- continuing our theless modesty. See Flat (citation proach.” 385 & n.9 F.3d at 359 ("[DJespite the absence Matsushita omitted). concerns, Court's this Court and others have accepting been cautious inferences from evidence, plaintiff provides If direct then involving circumstantial evidence cases al- apply,” [do] the "strictures Matsushita legations price-fixing among oli- horizontal Supermarkets, Darling- IGA Co., Inc. v. Petruzzi’s Chocolate, added)); gopolists.” (emphasis 801 1224, (3d 1233 998 F.2d Cir. Delaware (explaining "despite the fa- F.3d at 397 1993). is "no are That because inferences plausibility theory of cial the Plaintiffs and required from a direct evidence establish it, supporting the circumstantial evidence we fact and thus a court need not be concerned [since] must be cautious. ... the U.S. choco- of inferences about the reasonableness example oligo- is Valspar’s late market a textbook of an be drawn from such evidence.” Id. poly and we cannot infer too much from mere appeal does not involve direct evidence of parallel among oligopol- pricing rare conspiracy, evidence of and such evidence is in (citation omitted)). price-fixing Plywood ists” cases. See In re Antitrust

193 principles informing they those dence because With tend ensure that analysis, developed spe punish our has this Court courts concerted action—an actual (internal summary agreement.” evidentiary standards at Id. formatting cialized and omitted). in judgment general in cases and “Although antitrust citations we have not particular. oligopoly analy Our an plus factors, cases identified list of exhaustive (1) sis begins parallel they may often evidence of with include Chocolate, See price movements. 801 F.3d defendant had a to enter into motive markets, “[p]ar- (2) at In non-oligopolistic price fixing 397. conspiracy; evidence that among competitors espe allel behavior is contrary the defendant acted to its inter- ests; (3) cially probative fixing because is implying and a tradition- qua price fixing conspira the sine non of Id. conspiracy.” al at 398. Theatres, cy.” v. The Southway Inc. Ga. normally While all plus three Co., (5th atre 501 Unit B 672 F.2d Cir. weighed factors are together, the case market, oligopolistic paral But in an oligopolies the first factors two are necessary

lel be a behavior “can fact deemphasized they “largely re life,” Litig., Baby In re Food Antitrust phenomenon state interdepen 112, 122 (3d 1999), Cir. F.3d and “[accord Glass, Flat at dence.” 385 F.3d 360. Put ingly, parallelism evidence of conscious “[ejvidence way, of a another motive to cannot alone create reasonable inference conspire means is conducive market Chocolate, of a conspiracy,” 801 F.3d price fixing, and evidence actions Therefore, prove oligopolistic against self-interest means there evi behavior, parallel proof with a com dence behavior inconsistent go beyond inter evidence “must mere Chocolate, 801 petitive market.” F.3d dependence” “be so unusual that are qualities 398. Since those intrinsic to agreement, advance no absence of an focus on the oligopolies, we instead third engaged firm have in it.” reasonable would plus implying a factor: “evidence tradi Food, Baby at 135. Glass, conspiracy.” tional (citation omitted). factor, proof parallel be To meet this Because rarely “proof got havior will itself an inference require create we the defendants assurances of conspiracy, plaintiff together exchanged will often need to plus pres adopted action or “show that certain factors are common otherwise plan though meetings, ent” in no order move ball across the common even “[t]o conversations, goal exchanged line.” documents 398-99. (citations omitted).3 proxies “Plus factors for direct evi- are shown.” Id. (5th 1981) Litig., proof (requiring F.3d at 361 of an ("[S]olemnized "actual, conspire agreement compete” are dif- covenants manifest case.”). matter, (citation omitted)). any price fixing ficult to practical come As a tacit parallelism conspiracy and conscious are dif differentiate, argue proof of a tacit ficult to if such differentiation is seems to Gavil, is, suppliers—that among possible at all. See Antitrust Andrew Cases, engaging Perspective: Concepts, in con awareness Law in (2d Policy parallelism—should Competition scious suffice to meet Problems in ed. 2008) ("(The] disagree. agree agree boundary this factor. We While tacit between tacit illegal applies—and § par ments remain under Atl. which Bell ments—to Section 1 544, 553, Corp. Twombly, pricing stemming oligopolistic in v. 550 U.S. allel (2007), clear.); George terdependence” Hay, S.Ct. third A. 167 L.Ed.2d 929 plus Concept Proof, requires implying Agreements: factor tradi Horizontal (i.e., 877, (2006) explicit) conspiracy. tional Bull. & n.46 See Flat Antitrust 894-95 194 Chocolate, 396, at judgment,” evidence 801 F.3d evaluating

After the other, summary judgment we then all analysis,- our factor but—like through plus whether, “[considering the evi must be viewed in assess cases—that evidence whole,” likely than evidence, Big it “more Ap dence is of all the context other (cid:127) Am., conspired BMW, to fix Inc., v. ple defendants] the Inc. N. [that not BMW of Chocolate, 1992). 1358, 1364-65 (3d at 412.4 This prices.” 801 F.3d F.2d ap employed times at different has Court sifting through proffered for

proaches IV Glass, Compare Flat evidence. record, turn We now the evidence plaintiffs evi (summarizing 363-69 all prin- light which we will evaluate editorializing, per and then dence without just first ciples outlined. We consider the “Analytical Summary” de forming an evidence, parallel pricing move to evi- then body made cide whether evidence factors, plus finally under the and dence not), with likely more than record consider the in toto. Chocolate, F.3d at 403-12 (looking see groupings of individual evidence “supported an inference of

whether 408, taking id. at conspiracy,” and then of the in context holistic view evidence case, primarily that “it not to ex .bases determining tend does increase, parallel price on the 31 announce act possibility.that [defendants] clude competitors during method issued lawfully,” by ed id. ments Whatever alleged conspiracy, it used, is plaintiff arguing that “a the bottom line is occasions, that, ambiguous on alone can “inconceivable” on 31 relying evidence competitors independent inference of a con “conducted] not raise a reasonable summary nearly ... analyses sufficient to survive spiracy simultaneously [and] factors). part (theorizing distinguish plus á Al how between tacit motive as two first interdepen agreement oligopolistic though possibility we do rule out the noting can be dence—"[i]f that done”—while agreement of a tacit could suffice to totally on might be lost that the distinctions plaintiff this factor also meet when a offers jury). We have tried to eradicate this confu non-economic evidence of a con traditional by plus placing emphasis sion on the third spiracy—for exampié, pro A Company when requiring conspiracy” factor and "traditional B, Company poses parallel 360-61, Glass, See Flat evidence. agree Company explicitly B but does words, type we In other realized that the Company then follows suit A raises its when might conspira prove evidence that a "tacit” 222, Interstate, prices, see 306 U.S. at motive, self-interest, against cy (e.g., actions S.Ct. 467—economic evidence alone cannot behavior, etc., parallel Circuit Interstate v. our demonstrate tacit under oli 225-28, States, 306 U.S. United 59 S.Ct. gopoly cases. (1939)) in the context L.Ed. oligopolies unhelpfully equivocal,..and can be While dissent it will "now wonders what generally thus decided focus on plaintiff relying take for a circumstantial on. agree required explicit, show an manifest goal move ball across the Moreover, proof the sort of that would ment. line,” precedents Dissent the above proving a con generally count towards- tacit already Namely, question. resolve that largely spiracy is accounted different conspira- plaintiff's inferences must show summary judgment parts oligopoly of our likely cy not.” Food, is "more Baby at 121- framework. See high That F.3d at 412. be a bar—but pricing (considering parallel before factors); binding established this Court plus bar n (considering panel. against actions self-interest and price Apart Valspar’s carry identical increase amounts from arrived its failure implemented exactly on to be the same burden, DuPont demonstrates that “mar- Br, Valspar 37. day.” clearly ket -... realities controvert [Vals- par’s] contention” that these announce- argument Valspar’s fails two of ments are evidence a Id. conspiracy. First, reasons. characterization the First, supply 131. in contracts the titanium price neglects suppliers’ announcements industry dioxide contained theory parallelism price-protection the conscious in face of our that in a requiring period flies the doctrine an clauses notice cus- “any oligopoly rational must take decision increase, price tomers a meaning before anticipated into account reaction if that a failed to supplier competi- match a" Food, Baby ... 16 other firms.” F.3d at announcement, tor’s it was foregoing added) (citations omitted).5 (emphasis possibility of negotiating price a increase Thus, DuPont the com claim that does during period. These industry-wide that petitors’ parallel price numerous increases provisions contractual made the benefit were discrete events—nor could it do so matching price a increase announcement straight face. But it need to. doesn’t high if competitor and the risk minimal: theory of interdependence recognizes that price later in undercut an effort price oligopoly that movement in an will be share, take the supplier market could re- just interdependent. phe that: And implementing frain from increase price frequently will nomenon successive lead respond by lowering even its price. increases, oligopolists may Second, DuPont demonstrated that “conclude that industry as whole market for com- titanium dioxide remained be by raising prices.” better off would petitive frequent despite increase Chocolate, 801 F.3d at 397.6 Indeed, Valspar employ- announcements. Second, Valspar engage this does it ees “very testified was common” demanding Court’s' rule that order in negotiate away supplier’s to in- attempt conspiracy raise an inference this price, crease DuPont Br. and said point, required it was show aggressive supplier “[o]ften ... an would suppliers’ parallel pricing “beyond went achieving more volume interested interdependence [and mere unusu- was] So come and offer a [lower] and would agree- al that absence advance price,” 9. all at- suppliers’ id. Across ment, no firm reasonable have en- would increases, tempted Valspar able Food, it.” gaged Baby 135. (or negotiate avoid that even Valspar important never cites this control- decrease) Thus, ling nor it one-third the time. precedent, attempt does to show might how be met. this characterization of Valspar’s Indeed, Valspar pricing.” Valspar Essentially, this same pervades mistake Vals- Br. 15. argument. par’s aptly As the District Court we arguing should infer a Valspar generally "neglects explained, pretext. argument potential That theory interdependence.” Valspar, "pretextual our caselaw because fails under despite example, at 248. For genuine insufficient to create a reasons parallelism” role and "in- central "conscious pointing issue without other evidence of fact opr caselaw, play in terdependence” oligopoly agreement.” price-fixing to a phrases. qnly appear those once in each (alterations omitted) (quoting F.3d at 411 opening Valspar’s brief. Brands, Specialty Miles v. Distribs. Constr. (7th Inc., 2007)). suppliers' also notes execu engaging denied tives "follow the leader a realities; uptick frequency pre-established “ag- market controverted is Us, “R” Inc. v. Toys See industry practice. price competition “common” gressive” and 2000) (7th FTC, 928, 935 221 F.3d inconsistent with the idea firms is between unanimously toy conspired (group distributors have firms same that those clubs after dealing with warehouse stopped compete price.7 on norm). industry being of that years in this rings true logic particularly That generally “it is unremark- context because the related also advances oligopolistic mar- pendulum in for the able an flurry argument interde- swing from less to more kets to change a drastic reflects nouncements Chocolate, 801 cooperative.” pendent and in the titani behavior pre-conspiracy Hovenkamp, (citing & at 410 Areeda F.3d industry change A market. um dioxide supra, at “abrupt” to or be “radical” practices must conspiracy.” of a inference “create an (citation

Chocolate, omit at 410 B ted). this stan to have met Valspar claims pattern parallel Having found that the only paral three because there dard not raise an inference increases does before announcements price increase lel Valspar’s conspiracy, we next turn (as period compared conspiracy alleged factors evidence argument plus that the during the thirty-one to the above, explained this Court conspiracy. As period). developed specialized rule has Chocolate, “ disagree. plaintiffs We markets, fac- first two oligopolistic ‘the relying argument, similar advanced phenomenon of largely tors restate frequency parallel pricing an increased tradi- interdependence,’ ... leaves [which] pre-conspiracy behavior. activity from conspira- of a tional non-economic evidence There, explained that “the focus we factor.” cy important plus most as the be- unduly is argument narrow” Piaintiffs’ (citation Chocolate, omit- in the parallel pricing “[historically, cause ted). impor- ignores this Tellingly, Valspar at all market has not been chocolate U.S. why the emphasizes point tant and instead Chocolate, 410. uncommon.” Valspar’s are met. plus first two factors too, parallel price increase public Here however, one,” “victory ... is a hollow how “consistent with announcements interdepen- showing having succeeded historically operated.” industry has conspiracy. Id. at but not dence (quoting Valspar, 410). Similarly, F.3d at courts have when other found radical factor relates motive The first conspiracy, to indicate

abrupt change i.e., that “the market conspiracy, just to enter a change generally has been more than prices Thus, prices occurred below announced al here are different the circumstances frequently conspirators alleged where stated under- those in Flat we per se prices alleged conspiracy. fix is a "[a]n cut other members of most or of the Sherman Act even if violation attempt fix mindful that a "failed We are transactions occurred for that matter all prices” illegal, but it is likewise id. prices.” 385 F.3d at [than list] lower conspirators be- alleged significant that the Here, omitted). (citation we and alteration conspira- contrary the existence haved just significant not oc- that actual find cy- prices, but that actú- curred below announced to price fixing.” added)). conducive Id. at (emphasis 398. considered For exam- highly There is little doubt that this con- ple, Valspar expert notes that its “conclud- commodity-like centrated market for a ed there was economic ability evidence of product no viable substitutes and sub- to enforce their price-fixing agreement,” entry stantial barriers to was conducive to and from an “found point economic of view price fixing. the markets were relatively stable.” Vals- par Br. these, 43. From findings like plus factor looks for second Valspar argues that “the district’ court self-interest, against ie., evidence action accepted should have expert’s] [the eco- “evidence that in market behaved nomic conclusions” that the competitors Glass, noncompetitive manner.” Flat 385 not could have independently. acted Vals- (citation omitted). F.3d at 361 Valspar par Br. 42. This gets things backwards. presents evidence there “a that was 16% dispute There is no that the market was overcharge” that “price increases were primed for anticompetitive interdepen- supply-and-demand correlated to prin dence and that it operated in that manner. ciples.” true, Valspar Br. 57. While is this Valspar’s expert confirming evidence these largely ignores irrelevant facts the obvious.9 fact mastered that “firms in a concentrated market may maintain their at supracompeti- levels,

tive or even raise them to those 2 levels, without in engaging any overt con Glass, certed action.” Flat finally reach Valspar’s We evidence un- 359.8 plus der our third factor: traditional con- evidence, spiracy “proof where we look for Valspar’s Most of expert other economic got together the defendants and ex- evidence plus addresses the first two fac- changed Glass, tors as well. assurances common action or See Flat at F.3d adopted 361 (explaining that otherwise plus plan the third factor is common even where “non-eeonomic evidence” though meetings, conversations, should be no or ex- Although plus may, the first two factors that does not mean district times, "do more than restate economic inter- obligated accept expert's legal court Glass, dependence,” Flat conclusions, Corp., Dalberth v. Xerox 766 F.3d n.12, Valspar has not shown that do so (2d 2014). Although Cir. Valspar's example, despite here. For the dissent’s insis- Williams, expert, Dr. concluded that its evi- contrary, tence to the there is no evidence of dence the inference compet- excludes that the showing exchanges record "unilateral of con- independently, itors acted that conclusion information,” fidential which is one ex- predicates was based that are insufficient ample against of an action self-interest that example, under our caselaw. For Dr. Williams simply interdepen- a result type took the evidence that we have said Glass, (quoting dence. See Dissent Flat oligopoly value in the diminished context n.12); F.3d at see also IV- Part infra (i.e., parallel price movement and evidence (discussing B-2 exchanges the information plus best under the considered first two fac- shown to have suppli- occurred between the tors) sup- and from there concluded that the ers). pliers illegally conspired. had The District reject Court correct to this line of addition, argu- Valspar give would have us ment and note that the evidence from which expert’s conclusion an outsized role in the expert based his summary judgment analysis. conclusions is “not nec- While we have explained essarily agreement” ... court evidence under a district not "im- should permissibly weigh[ expert oligopoly Valspar, our by pick caselaw. ]” flaws,” Petruzzi's, "potential ing out 998 F.2d at 243. explaining and- the evi shown.”10 then

changed conspiracy documents omitted). Fertilizer, (citation accordingly.” Blomkest dence Saskatchewan, Potash Corp. v. Inc. approach plus factor We the third (8th 1028, 1033 -Chocolate, considering first Court did groups of see wheth Moreover, individual our prior decisions under conspiracy, any er an inference raise Valspar’s argument mine GSP evaluating proof of the all com before supports an inference of For Here, we F.3d at 403-12. text. See 801 Food, we affirmed example, Baby sum Court agree the District fact despite the that the mary judgment conspiracy. an inference to raise failed representatives conspirators’ sales alleged strand of is weaker Each “exchanged] information,” pricing had ex this Court similar evidence cases where nowas evidence these plaining there summary judgment favor affirmed has exchanges had compa effect over operate oligopolis of that in an companies decisions, 166 pricing F.3d at nies’ final tic market. event, observing,1 that and exchange ... price of can in data “[t]he First, Valspar shows that DuPont certain circumstances increase economic competitors took part other the and more, efficiency and render markets rath by sharing program the Tita offered data less, at competitive.” Id. 125 (quot er than Association. nium Dioxide Manufacturers Co., ing Gypsum States v. United U.S. (the program of Global part As this Statis n.16, 422, 443 U.S. S.Ct. GSP) Program, competitors tics the (1978)). Glass, And Flat L.Ed.2d provided inventory, and sales- production, alleged each conspirators provided the data) (but to never the price volume data to that price would use data business TDMA, anonym- which then aggregated, prices inputs those recommended set ized, and redistributed the data. industry. 355. The the conspirators how alleged the recom knew precedent citing any Without calculated, so mended “were sharing of why type this show information able calculate backwards” and deter illegal, Valspar argues that the GSP price inputs mine the used. Id. 370. We conspirator to calculate each allowed this explained although right would and market share deduce wheth own thus fully suspicion,” “publication “raise of was, er it its fair share getting, information can have a pricing pro-comp¿t- argument suffers profits.. conspiracy’s This itive, and, effect” with little other evidence question fallacy. from the loaded Instead supporting conspiracy, the inference prove: setting out to “Does GSP summary judgment oh that affirmed claim. existed?,” Valspar that a show Id. the GSP attempts to answer: “How did conspiracy?” approach part The data exchanged further This as GSP to the satisfy Valspar’s compared liti looks innocuous in- “[A] burden. when cannot gant assuming Baby and Flat proceed by first formation Food Glass. not ''actual, ignore claims manifest The dissent that we istence an this Valspar present precedent "required[ ] and compete.” meetings of direct conversa- and omitted), (citation Valspar While marshals tions,” is no Dissent so. There Not anticompetitive be- 'circumstantial evidence satisfy plaintiff plus that a can doubt havior, not show the exis- does record evidence, but that factor with circumstantial agreement, of an actual tence the ex- circumstantial must indicate osos

r—I. aggregated (cita and blinded “mem conspiracy-has GSP place.” taken omitted)). sales, production, monthly bers’ inven tion worldwide,”

tory but data never collected Next, Valspar suggests that Valspar Valspar price information. Br. 47. competitors industry’consultants used as argues co-conspirators partially “the funnel conduits to information. For exam disaggregated the to track data individual ple, points to Valspar e-mail from a -Valspar Br. firms.” 48. But as District employee Kronos noting a consultant noted, provided Court “the evidence employee that the had rumors of heard Valspar support does this conclusion” impending increase, Huntsman but Valspar’s expert own conceded thought weird” and “sound[ed] wanted merely allowed GSP each firm cal to know if the consultant “confirm could Valspar, own market culate its share. 152 anything lofty position.” from [his] Valspar at 245-46.11 Br. 20. inquiry This sort to a consultant is not Belatedly, Valspar claims the al probative conspiracy. We explained have leged conspirators meet “used TDMA that “it makes common sense obtain as plans, ings pricing to communicate their possible much information pricing increases, coordinate confirm policies marketing strategies of one!s competitor each would follow lead Food, Baby competitors.” 166 F.3d at 126. Br. 50. er increases.” fact, type this of inquiry undermines argument begins Valspar’s essentially and of a conspiracy the existence con- because opportunity: TDMA ends with meet spirators have no con- would need to ask ings brought the competitors together, so specifics sultants about own their they one should assume that used the Mayor conspiracy. City See & Council of conspire. meetings But District as the Balt., Inc., Citigroup, Md. v. 709 F.3d noted, no Court is that “[t]here (2d 2013) (attempts Cir. to confirm prices during there discussion of was plans of pricing competitors future “tend meetings certainly these no and nn absence of- suggest [competitor] agreement.” Valspar, competitors because if communications” Consequently, Valspar’s argument at 246. communicating directly they were' “would precedents. falls Choco short under our rely on parties not have third had late, (“[E]vidence ... that strategies]”). other’s] confirm [each conspira the executives from the [alleged in place the samé same tors] were at the emphasizes Valspar also- a selec is time ... support insufficient to a rea by tion of internal e-mails sent the various activity.”); sonable inference of concerted competitors. example, For a DuPont e-mail Supermarkets, IGA Inc. v. Dar price “[o]nly Petruzzi's for a if modification advocated (3d Co., ling-Del. undercutting- Cir. you a Kronos are not 1993) (“Proof conspire, Br. 9. opportunity Valspar e A Millennium increase!” more, without will not extra an inference mail “We should' this sustain said: have. Additionally, by production country the GSP and most resembled a on citric acid (9th program by data collection the Ninth blessed sales." 191 F.3d program legal” Litigation, "wholly Circuit in In re Acid where a That called the Citric court association, fig- it explained centralized trade that "collected that “uncontested legitimate production’and purpose ures sales from each served the these activities members, informing audited information on an an- condi- this members [market] basis, aggregated produced nual tions." statistics Id. a Kronos not want undercut would have been and share—customers [market] increase, doing so would result because will Competitors us. buy this from want a concomi- lowering its Kronos e- Id. at 8. And a Cristal this.” let us have See everyone. profits tant decrease major players global “all mail stated Moreover, F.3d at 359. pricing disciplined with very have been competi- show that same e-mails these point.” this Id. at 10. up to implementation contem- independent and engaged in tors helpful are Vals- e-mails These For ex- deliberations. internal poraneous They may raise only superficially. par, but “From employee wrote: ample, a DuPont they indicate insofar as suspicion some it valuable to may be testing perspective, anticompetitive is afoot. something our the October announcement. make If con explained, oligopolistic as we have But it a clear mes- follow, sends competitors do anticompet- nature parallelism scious receiving/under- they sage to us that Chocolate, 801 legal. See itive and also messages ... price increase standing our Essentially, these e-mails F.3d at 397. don’t, would also learn how well we If were aware of competitors show that (em- Br. trained them.” we’ve parallelism of conscious phenomenon added).12 employee Kronos And a phases strategies in re pricing implemented “hope[dJ Du[P]ont wrote firm to it. It makes sense each sponse have all what we enough smart not to undo strategies, since such implement would by keeping some market done the Ti02 in an firms parallelism conscious allows (first Id. at alteration discipline.” sort of monopoly pow to “in effect share oligopoly added). have (emphasis We original) “prices profit-maxim maintain er” and showing explained documents Brooke izing, supracompetitive level.” negate deliberation type internal To Group, 509 U.S. 113 S.Ct. Food, 166 Baby conspiracy. an inference oligopoly from consider firms forbid interpreta- plaintiffs (rejecting internal conscious in its ing parallelism “[con- of a set documents tion require to a pricing decisions would be also show that documents temporaneous prices its impossible: “set firm do independent alleged conspirator] made [an regard likely reactions its without decisions.”); Messaging, Text 782 pricing Corp., 851 F.2d competitors.” Clamp-All (noting nothing that J.). (Breyer, “suggests allegedly collusive e-mails a con- there was believed explains away [the defendants] most Vals- logic This carriers”).13 spiracy among the DuPont example, For par’s concerns. 2003) conspiracy from (refusing to infer Valspar contend Cir. Although and the dissent signalling among oligopolists absent evidence implemented con- competitors their that the agreement); of an that it was in furtherance spiracy through public announcements Fertilizer, Corp. increases, Inc. v. Potash reflect Blomkest price their these e-mails (8th Saskatchewan, occurred, 203 F.3d that, "signalling” it even if such (same). 2000) agree- any prior furtherance of was not in together competitors "got[ten] ment. Had the differently, e-mails reads these action 13. The dissent exchanged assurances of common (1) they competitors arguing show the plan,” adopted common otherwise or Glass, another’s not undercut one often “would have been F.3d at there would (2) they involved in an prices and that were public [ ] to resort to an- no need for DuPont cartel) (i.e., controlling prices.” organization competi- whether its to "test” nouncements added) (citation (emphasis Dissent at "receiving/understanding [its] tors were omitted). proposition, agree the first messages.” Oil Co. v. We See Williamson (11th oligopo- consequence of USA, but is a natural Philip Morris Valspar

Finally, highlights (quoting -al., Wiliam E. et Plus Kovacic inter-competitor Agreement Law, handful of sales at below Factors and in Antitrust arguing that prices, market those sales (2011)). L. Rev. Valspar Mich. gains were used to redistribute and losses support offers no case for proposition, this alleged conspiracy. But maintain the puts but instead all eggs its the basket here, looking present specific to the facts single of a law review article. See id. But found that District Court the sales (a) law review spends article: only “just as consistent with non-collusive (b) paragraph one theory; cites this no activity conspiracy.” Valspar, 152 as with precedent support economic studies to First, Valspar’s expert at 244. it; (c) recognizes patent licensing conceded the sales were at such low licensing (d) cross can legitimate; volumes that would not have resulted limit analysis seems “interfirm share, large large market thus shifts of largely transfers resources that are ly defeating Valspar’s theory profit re productive void of unilateral motivations.” Second; Hurricane Katrina distribution. Kovacic, supra, at In the face of Du- of DuPont’s knocked out one titanium di Pont’s explanations reasonable the con- plants oxide all its so it unable meet trary, give decline to quo- we this isolated product, requiring internal demand tation force of law.

DuPont it from purchase other firms.

Importantly, sales occurred at these higher sometimes sometimes lower average prices for non-defen Having piece each considered third, dants. sales And number these individually and decided that pursuant DuPont to Kronos were made , conspiracy, none raises inference we cross-licensing agreement to a in order to must consider as a now the evidence patent litigation. licensing avoid After this whole.14 F.3d at 412. To See ended, successfully DuPont ne summarize, legitimate granting all infer gotiated a price increase. Valspar, presented ences to evidence of: movement, seriously dispute parallel these internal does e-mails parallel explanations, argues showing instead one but awareness of “[i]f movement, buys competitor seller in a anything participation another non- prices, sharing market then resource transfer is trade statistics association and reasonable, made there is program, for which no sales at below market inter-firm Br. 21 explanation.” Reply prices, industry noncollusive and use consultants. In Glass, interdependence. agreement listic See Flat with the absence of to raise omitted). proposition, the (citation F.3d at 359. As for second we prices.” Dissent at 212 enough do not in to see evidence the record analysis. That misunderstands our mode support the internal indicate it. While e-mails Coherence, presented the and For sake we suppliers pricing that the their knew decisions piece separately, discussed each of evidence consciously parallel and that their own, single piece and no on found that aligned, collective would at times be interests (Af- conspiracy likely made a than not. more agree- explicit the e-mails do not evidence an all, single piece if á ter made prices—and ment to that such fix often show not, conspiracy likely- Valspar more than lacking. agreement was judgment summary would survive and our end.) task would We the evi- now that, dissenting colleague 14. Our in consider claims section, dence to whether the en- together determine foregoing through the we went "each body context—tips tire of evidence—viewed in piece disregarded] individual of evidence and feasibly interpret Valspar's it if in we could it as consistent the scale favor. evidence, voluntarily the exchanged, we look to this was and assessing this ever examining, allegedly alleged exchanged oli- information that was Court’s-three.1'cases judg through comparison summary pales these sources in gopolistic conspiracies at Food, Baby to what shared in ment:- Chocolate was cases where we where (cid:127) granted, summary judgment summary judgment was to defen- affirmed Likewise, Glass, judgment par summary, supra dants. where See Section IV-B-2. was tially by Valspar e-mails denied. internal uncovered to in look next our caselaw. harmless those First, single Valspar riot offer did First, all of the e-mails Vals- uncovered gotten would have it form of that par competitor, were internal each conspiracy is more showing close to that Baby regular Food there was whereas- likely emphasizes than not. competitors. communication between announcements, pattern of parallel Moreover, nothing F.3d at 119-20. there is explained, for the we don’t but reasons competitors’ e-mails to indicate persuasive. su- particularly them See find pricing their was of an behavior the result IV-A-1, comparison, By pra Section (as opposed actual to conscious Food, summary Baby where Chocolate and Food, parallelism), unlike in 166 F.3d Baby in favor al- judgment granted of the - (referring competitors’ plaintiffs’ leged conspirators, cases e-mails, “truce”). again, not And do these stronger far lead evi- supported were from Flat one approach where those For present example, here. dence conspirator “monitoring it wrote that was plaintiffs established that Chocolate sure market make that all stick been very part had defendants same of the rules” admitted one contemporaneous price-fixing conspirators “assured me of the Canada—to one defendants which fully of the increase supportive prop- already pleaded guilty to the had Canadian (citations omit- osition.” 366-67 Baby 402. In authorities. ted). Food, the had knowl- defendants advance sum, reviewing after edge planned price of each increas- the record as other’s (or whole, prices) to raise we conclude District es- Court decisions Valspar’s did not err several 119-20. occasions. And when held meet our pales comparison Flat Glass— did standard judgment. summary our survive one case in which defendant’s motion for summary judgment was denied—where o one of the -alleged co-conspira- defendant’s upon, agreed tors to “an across confessed point One final deserves mention. Vals- the board for the entire Mary- much of thfe par makes District Department United States” of Jus- litigation summary judgment land where in an gain tice attempt leniency. materially was denied on a record. similar (citation omitted). F.3d at argues It “principles comity stare decisis have doctrine should Just as lead Valspar’s evidence weak- given greater pause the Delaware court cases, than er our too relevant so reaching a before decision conflict with supporting example, its al- evidence. For Maryland Valspar Action.*’ 61. Br. though Valspar alleges competi- Valspar’s argument tors certain infor- flaw: swapped have has an obvious consultants, matiori through the TDMA or sits District within Maryland is no Appeals there Court of for evidence information United States

203 (unlawful Thus, § agreement Circuit. 28 U.S.C. Fourth See fix even Court, Maryland among had no District obli I oligopolists). think there- are precedent, Circuit gation enough consider Third factual in this issues case that the lawful, in this the District Court but case was question whether it a coinci- by in Maryland it. This bound resulted agreement dence or an unlawful should be applying quite court a standard different by jury. decided from, par, relying on ambiguous lies 396-97)), not raise a acy re Publ’n ment.” could draw from that claim, the Sherman Circuit Court did not err.15 For the a reasonable judgment District sufficient to survive (2d (quoting ambiguous precedent one we Paper Act to oligopolies, F.Supp.3d with Titanium existence of reasonable reasons Cir. Court of the District Court. 2012))). Antitrust have inference (“[W]here ^[*] applied. Compare stated, evidence applying * * evidence.’ inference of evidence alone developed a conspiracy summary Litig., we light ‘a Dioxide, ,(“A the, § plaintiff ” will affirm prove (citing and that conspir plaintiff District of the Third Vals judg must jury can re In legal workable inferences drawn from such evidence.” Pe truzzi’s IGA evidence alone. That precedent, mary judgment majority opinion. sion where suited “plaintiff in a section case compartmentalized stantial evidence. Sherman Act cumstantial ling-Delaware smoking gun, Cir. An submit 1993); see, e.g., axiom, antitrust majority’s ruling juries—not judges. direct burden, for á district evidence yet price-fixing Supermarkets, plaintiffs Co., but can based evidence, i.e., plaintiff may We have it finds no Second, 998 F.2d evidence, concept and the judge weighed upon In re rely supported by seeking case with circum- it affirms a deci- creates an long 1224, 1230 (3d circumstantial does solely a task better Inc. home the so-called Baby is almost a avoid sum held reasonable not have v. prove a on cir that a Food Dar un- our (3d Litig., Antitrust Cir. STENGEL, Judge, Chief District 1999) (“A plaintiff in a Section 1 dissenting. solely establish can a case on circumstan I respectfully dissent. tial evidence and the reasonable inferences question words, The essential here is to be drawn In other therefrom”). whether (31) thirty-one parallel increase an- an plaintiffs summary burden at antitrust by group suppliers nouncements judgment a small “is no different other (10) year BMW, over ten period were (quoting Big Apple mere case.” Id. v. Inc. (lawful fact, and, Inc., expected Am., 1358, 1363 coincidence in BMW N. (3d oligopolies) 1992)); the world' In re Chocolate Confec contention; Petruzzi’s, (“mere Contrary Valspar’s our case- See F.2d at 1242 con- possibility law does not foreclose the sciously parallel alone is behavior insufficient summary plaintiff judgment can defeat prove conspiracy, [but] is circumstan- only circumstantial in the Section 1 which, supplemented tial evidence from when oligopoly context. That circumstantial evi- evidence, illegal agreement additional dence, however, must be non-economic evi-' added)). (emphasis can be As ex- inferred." dence of an actual between the above, plained provided has not cir- conspirators, just and not a restatement of the cumstantial non-economic sufficient interdependent economic conduct that we conspiracy, support the inference accept oligopolistic marketplace. must in an 204 383, persuasive Litig., produce must “more

tionary Antitrust plaintiff 801 396 F.3d its claim. Id. On (3d Today’s opinion all but ex to bolster Cir. evidence” that, now, hand, “the so-called plicitly plaintiffs states theo- the other when Petruzzi's, gun,” 998 F.2d at smoking sense, ry courts draw makes economic required. in of the inferences favor more liberal plaintiff. Id. at n.8.1 Valspar presented principle, “antitrust law general As a makes theory perfect that an economic of range permissible inferences limits the sense, District Court case,” yet § economic in a 1 ambiguous from evidence any infer- Indus. Co. v. Zenith Ra majority not draw Elec. did Matsushita 574, 588, Corp., dio Valspar’s U.S. 106 favor. S.Ct. ences (1986), and conduct L.Ed.2d 538 anal- majority performs thorough The permissible consistent with is “as ysis parallel conduct the evidence illegal conspiracy” can competition as with Viewing all this evi- “plus factors.” own, not, support an of an on its inference whole, I it clear that as a believe dence (citing Monsanto conspiracy, id. antitrust judgment proper was not this summary Corp., Serv. Spray-Rite Co. v. 465 U.S. case. (1984)). 752, 104 79 L.Ed.2d 775 S.Ct. sliding ap- scale This Court favors A. Parallel Conduct types of infer- proach determine the parallelism It is true that conscious cir- to be drawn from ences allowed con- alone cannot create an inference of cases. antitrust cumstantial evidence has this to spiracy. majority taken precedent, to our Circuit’s According any paral- of conscious mean Court’s, Supreme of the and that raising an incapable of lelism is therefore range be drawn inferences conspiracy. This is incorrect. inference depends from circumstantial necessary requirement is a pricing Parallel upon plausibility plaintiffs’ “the claim, simply § price-fixing theory dangers with and the associated pre- cannot parallel pricing alone such inferences.” summary judgment not mean clude does In re Flat Glass Antitrust (quoting Indeed, ignore of it. that courts (3d Litig., repeatedly our has warned precedent 2004)). In cases where an antitrust against overlooking important factor theory liability plaintiffs economic cases, types especially in these where sense,” no economic and draw- “makes theory—as it does plaintiffs economic favor ing plaintiffs in the inferences perfect economic sense.2 healthy competition, here—makes would deter sense”), sliding “perfect and Flat approach—first made economic 1. Based on this scale have taken (drawing articulated Matsushita—courts liberal infer varying depending approaches to cases on the reversing summary judgment given ences in theory. Compare strength plaintiffs of the agreement among oligopolists fix that "an Matsushita, 588-91, U.S. at 106 S.Ct. sense”). perfect prices ... makes economic (refusing to draw liberal inferences plaintiffs’ "predatory pricing” theory, which Valspar’s eco- plausibility We discuss the posited multiple companies conspired to now, theory greater detail For nomic infra. prices, lower because a to lower previously enough say we have held it is sense), prices makes no economic Petruz theory Valspar's (parallel exact economic zi's, (drawing liberal infer fixing oligopolists) perfect among makes reversing summary judgment be ences and among oligo- economic sense: "an theory, companies plaintiffs cause the other, polists supracompetitive level conspired compete to fix at a not to with each ments, parallel in The sheer number be drawn. Id. price majority’s should The in crease this case—31 to unwillingness announcements to allow more liberal infer- unprecedented. be exact—is Flat plaintiffs ences favor seems to me Cf. Glass, (reversing summary F.3d Instead, abe mistake. majority gave judgment involving parallel price in case weight little to the amount of parallel price Chocolate, in 5 years); increases simply increase announcements (3 parallel price increase announce parallel conduct itself is insufficient to cre- summary ments insufficient to withstand ate an of conspiracy. inference ap- This judgment, in part, because there no trees, proach sees the not the forest. See “abrupt” or shift in “radical” pre-conspira- Glass, Flat (mandating conduct). cy number, this While sheer courts analyze the evidence “as a whole” itself, carry day Valspar, cannot determine “it supports whether an infer- in conjunction other evidence viewed action”). of concerted ence parallel price with these increase an course, parallel Of pricing go “[f]or nouncements can. beyond interdependence, mere it must be parallel This amount of price increase so unusual that in the absence of an ad- announcements, in relatively short time agreement, vance no reasonable firm period, Glass, commands attention. In Flat Food, engaged would have in it.” Baby temporal proximity we considered the be- said, it With is undoubt- companies’ respective price tween in- edly question as to whether the fact crease as evidence of an announcements parallel pricing in this sufficiently case was agreement to conspire. 385 F.3d at 364-67. “unusual.” Id. No case ever reach us has Here, there is many evidence that half parallel contained even the amount of manufacturers’ announce- price increase present announcements hours, ments days, were made within or many here—not to mention that of them example, weeks of each other. For one separated here were days mere instance, DuPont in- announced hours. This raises an obvious and serious a.m., crease at 11:00 Tronox it matched question today’s after decision: What will later, seven hours and Kronos matched plaintiff relying it now take for a on cir- eight day, hours later. The next Millenni- cumstantial evidence to move the ball um and Huntsman announced identical goal across the line? instance, increases. In all another five Ti02 manufacturers made the same parallel The amount of sheer conduct price increase four- announcement within a case, coupled plausibility with the day period. timing This close creates a Valspar’s theory, economic inform should strong conspiracy. inference of Glass, analysis plus our of the factors. Flat (“[A]n agreement among unprecedented parallel amount oligopolists supracompeti- to fix at a announcements, price increase while not ... perfect tive level makes economic dispositive, undoubtedly would raise red sense” and therefore “more liberal infer flags reasonable fact finder. Vals- par’s permit ences from the evidence theory liability “perfect should makes eco- than in nomic ted Matsushita because the at sense.” 801 F.3d at 396. Accordingly, drawing from tendant inferences dangers “more liberal inferences - evidence,” recognized necessarily pres includes Matsushita are not which (“Matsushita ent”); parallel price the 31 increase announce- id. n.8 itself said perfect ... makes economic sense.” 385 F.3d at 358. gone The has so far requirements Supreme Court proof case U.S.

little about a against misappli of as this kind underlying caution structural indi where plausible” quite is of Kodak that the offense cation Matsushita. In Eastman cates Services, Inc., Hovenkamp, Image v. it The Co. Technical (quoting Herbert Ration Antitrust, emphasized: 116 Hahv. L. Rev. alization of (2003))).3 not. 917, 925-26 It did The ma requirement The in Matsushita Court’s very little mind to these distinc

jority paid plaintiffs’ the make economic claims of tions—especially plausibility the Vals- special not burden sense did introduce a: ’ theory. par’s economic facing summary judgment on plaintiffs n The not in antitrust cases. Court did The of majority’s formulation sum case, party hold that if the enunciates moving in this mary judgment cou standard theory its be- supporting economic treatment of un pled its dismissive havior, evidence, regardless accuracy of re- parallel-conduct precedented market, flecting is high plaintiffs for at the actual it entitled a creates too hurdle summary judgment. Matsushita de- tempting prove price-fixing conspira a nonmoving party’s cy using only evidence. The limi circumstantial mands be reasonable in order tations in cases inferences antitrust announced Matsushita, requirement jury, and that in Choc we followed reach invented, articulated, olate, require merely some meant to but never plaintiffs theory thing If the is more circumstantial evidence decision. senseless, agreement preclude summary no reasonable economically ans impose jury favor, judgment. Nor some And in its and sum- did could mary judgment granted. v. should “special” Kodak Co. be burd|en. Eastman Servs., Inc., 451, 504 Image U.S. Tech. (foot- 468-69, 504 112 U.S. S.Ct. 2072 2072, 119 112 S.Ct. L.Ed.2d omitted). Ko- note The Court in Eastman 265 Glass, (1992); 359 see Flat n.9 preference to “re- expressed dak also (“[Ujnfortunately, many have read courts case-by-case solve antitrust on a claims quan as a certain requiring Matsushita basis, particular focusing on the facts dis- agreement tum before verbal 467, 112 by closed the record.” Id. at S.Ct. summary judgment avoided,” be. can poi- is particularly 2072. This principle Ra (quoting Hovenkamp, The Herbert here, gnant where “facts disclosed Antitrust, L. 116 tionalization Harv. (ie., parallel price 31 record” Petruzzi’s, (2003))); see also announcements) Rev. strongly suggestive of (to genuine F.2d create prices. to fix fact, plaintiff' of material “need issue Factors B. Plus match, item, each piece item movant, majority there Although recognizes proffered but by the -factors, no list of- Flat plus stan exhaustive simply must exceed ‘scintilla’ Glass, only dard.”). considers it F.3d concern, (cid:127) espe- plaintiff’s proof, amicus—namely, price-fixing burden I share the if, cially theory plaintiff's be "in situa- economic result when that would absurd [parallel pricing] tions 'in which danger economic makes sense. perfect serious,” actually’ liability would be 396-97; most F.3d at (quoting likely,” Br. at Louis Amicus fact, "less opposite do such a courts must Fixing Kaplow, Competition Policy & Price by drawing in fa- liberal inferences scenario- (2015)). reading of law our case plain A plaintiff. Id. vor of the ramp up reveals Court never intended to plus simply interdependence. select and fails few factors consider restate Id: at plus instance, There is no factor that For others. one is n.12. against certain acts' “strictly necessary.” (quot Id. at n.12 non-price (e.g., self-interest acts against In re High Fructose Corn Anti ing Syrup self-interest) simply explained “cannot (7th Litig., 295 trust a result interdepen- oligopolistic 2002) (Posner, J.)). The presence certain dence.” Id. (cid:127) (cid:127) plus .automatically pre factors does not Id.; summary judgment. clude see Petruz 1. Motive to Conspiracy Into Enter a zi’s, (recognizing at F.2d that a Motive is to “important analy court’s range of circumstantial evidence “wide can sis, because [its] existence tends elimi to factor”). plus be used establish needed nate possibility of mistaking the “big rely plus we on the 3” often While workings of competitive market ... (motive, contrary actions factors inter interdependent, supracompetitive est, conspiracy), and plus- traditional Glass, pricing.” Flat 385 F.3d at 361. inquiry rigid is not to be factor intended majority only' The mentioned that evi- n.12; formulaic. Flat at 361 of dence motive often restates interdepen- Petruzzi’s, 998 F.2d at 1242. There is a dence and thus not does create an infer- factors, of other plus including, slew viable However, concerted action. ence (i) among relative others: fixed market cited the majority, often we shares; (ii) information; exchanges price “evidence, simply recognized motive (iii) price, output, capacity and and more without create a not reasonable does changes at the of the cartel. formation See inference action.” 801 concerted at F.3d al., E. Kovacic Plus William et Factors added). Here, (emphasis there is much Agreement Law, In Antitrust “more.” (2011) (listing Pos- L. Mich. Rev. factors”); plus “fourteen see also ner’s id. Against 2. Actions Self-Interest (recognizing company’s redis- Court, Valspar pointed In the District gains tributions losses—or “true- substantial DuPont evidence that ups”—are circumstantial evidence of a con contrary other manufacturers acted Posner, spiracy); Richard A. Antitrust First, Valspar their self-interest. (2d noted 2001) (recognizing “signal Law ed. despite change that Ti02 no rose factor, ing” plus especially as a when the Second, Valspar argued Ti02 market. announcement occurs before actual im of the the market Ti02 manu- shares increase). price plementation of relatively stable from facturers remained majority The is correct that evidence of Third, Valspar on 2002 to 2013. relied plus may first not aiways two factors other fact that DuPont manufac- nudge goal line for ball over the sales intercompany turers made each plaintiff summary judgment because other at below-market value. they “often interdependence.” restate Glass, 385 this is not 361. But not The District Court seemed heed always approach our pronouncement the case. to Flat Glass's “certain Because fluid, types against may these cases is and must not com- self we of ‘actions interest’ evidence, partmentalize intérdepen-dence.” there are some more than economic restate do explicit where these factors cases two not n.12.4 38 states, evidence, majority simply "Valspar 4. The without consid- the actual eration Hovenkamp, “unilat Antitrust Law were <&Herbert examples cited Flat Glass ¶ (3d 2010) 1431b, (citing price High infor ed. exchanges confidential eral mation,” Fructose, confi As in exchanges High Id. Unilateral Fructose, information, non- like other here are numerous state- there dential self-interest, employees against “cannot actions the manufacturers’ ments oligopo- DuPont) explained (including expressing as a simply be result under- Valspar pre interdependence.” Id. standing they listic “would undercut point fact a triable issue of prices” sented another’s and that one There is evidence that GSP below. in an to control organization involved email, DuPont and the other manufactur ironically, allowed prices. Id. one gain confidential information about ers parrots author Areeda’s above DuPont demand, in supply, regarding other each “undercutting]” language verbatim ad- market ventory, and share. “[o]nly if vising pricing others modify you undercutting Kronos email, Bradley at Hunts- In a 2002 Paul Fructose, 295 High increase!!!!!” F.3d Cf. possible that be to man noted would (statement from defendant that each individual manufacturer’s “derive” understanding within have an “[w]e of Ti02 from the data. production GSP- to each industry undercut other’s produced suggesting also explicit prices” served as of “an collectively that the manufacturers used J.)). (Posner, agreement to fix prices” An- industry a con- consultant Jim Fisher as competitor email a different other to share information. confidential duit acting recognized that in a “all are still industry attended an conference Fisher manner, disciplined respecting each oth- manufacturers—including Du- which share and positions er’s market and hold- Fisher, According Pont—attended. to ing price.” this conference the Ti02 manufacturers advantage the need “discussed to take emails, shortage is no of these all There improve pric- market tight conditions to that support an inference which ing.”5 working togeth- Ti02 manufacturers were an to contrary pursuant agreement actions to self-inter- er. to maintain The same price. indicating that to There are further emails est led Seventh Circuit reverse “on summary judgment High suppliers Fructose all the Ti02 that were bus,” recog- “training” that others on present here. treatise was also Areeda’s DuPont oligo- suppliers in identifying type price, and that some of the were nizes planning price that announcements in poly increase nonetheless collusive: “get on suppliers “there were numerous oral and some order allow other In by employees written statements their horses.” DuPont executive they to the far to comment about another’s effect that had went so defendant timing may understanding they not under- increase: “the be no price would - they reading one another’s their of the CEFIC prices cut coincidence (i.e. give in an car- info like confidence organization were involved should them ours tel) prices.” price E. controlling Phillip American] Areeda that NA increases [North Litig., plus shown” that has not the first two factors 5. In re Titanium Dioxide Antitrust theory (D. "do more restate the of interde- 812-13 Md.

pendence.” Majority n.9. The actual evidence, infra, supra discussed shows otherwise. despite market.” prosecuted prices.” (quoting Prods., can be the flat Petroleum 446-47)).6 particularly probative This of an email agreement, given the DuPont executive’s majority heavily The relies on fact recognition could continue that not all of co-conspirators’ parallel prices up though hike demand was even price increase announcements in a resulted decreasing. See Flat F.3d at sale actual price. at the announced Draw- (finding oligopolists “raising prices” indica- ing a price distinction between of a when tive increas- announcements and actual has increases margin- es made “absent increases in been judges criticized and scholars demand”). al cost or Judge.Posner alike. emphasized has repetitive pattern of public price deciding “[i]n whether there evi- enough garden increase announcements is also issue, price fixing dence of jury create a variety example against of action self-in a court price-fixing asked dismiss a suit When there is terest. “the summary judgment must be careful publication of wholesale increases traps.” Fructose, High avoid three make, and has the intended effect ensuring competitors of ... quickly could Judge One traps Posner’s is “to dis- of, respond learn to” in these tinguish between the con- existence creases, an inference spiracy its efficacy.” Id. at 656. fix arises. See Petroleum Prods. An words, other arguing although there (9th Litig., titrust 446-47 agreement was an prices, to fix goods the 1990). “price given A announcement Id, actually were not sold at that price. that rivals hope the will follow” evinces an just majority by The does that on relying if agreement “repetition expec an creates that, times, the fact often DuPont and the tation of such behavior.” & Hoven Areeda ¶ price manufacturers sold Ti02 a (3d at lower 1422b, kamp, Antitrust Law at 171 price their 2010); parallel reflected initial ... (“Although ed. see id. mere by increase announcements. explained As proof interdependent pricing, standing of (who alone, majority Areeda the frequently cites may not as an proof serve of anti opinions violation, permeate whose Cir- Third trust we the evi believe jurisprudence), “price cuit antitrust a an- concerning purpose dence the and effect of announcements, given in price hope nouncement the that rivals when to considered gether agreement “repe- will follow” an if concerning the evidence the evinces restorations, pattern expectation an parallel price of is tition creates of such behav- ior.” & Law support per Hovenkamp, sufficient Areeda Antitrust reasonable ¶ (3d 1422b, 2010) agreement, inference of an (emphasis missible wheth at 171 ed. tacit, added). or express er or stabilize raise email, Citing single to one the DuPont ma- whole a reasonable creates inference jority competitors likely reasons that the agreement "[h]ad there was more than not an together gotjten] exchanged example, prices. assurances to fix For the evidence of adopted alleged meetings of common action or otherwise between Fisher and the all plan, meetings conspirators, common ... there been would have no as well as the actual public top need for DuPont to resort to announce- from Kronos executives and Huntsman (followed competitors immediately by parallel ments to 'test' whether its almost announcement), 'receiving/understanding increase increase as well as the [its] messages." Majority discussing pric- conspirators "improving While it n.14. all possible by ing” be this reach conclusion read- does create an inference of "a common isolation, ing plan.” one email in the evidence well-recognized stability is a ket share with such is at odds precedent

Our own action at concerted symptom of collusive and analysis. See an “regard- E. Kovacic argument William the in antitrust cases. See (rejecting prices ... prices, ... list al., Agreement less Factors et Plus actually producers Sold glass flat Law, which 110 MICH. L. REV. Antitrust declined dur- [ ] to customers product (2011).7 their logic is not difficult to The alleged conspiracy” of the ing period acting in a company a- understand-: is to fix agreement “[a]n self-interested healthy, competitive, and Act of the Sherman violation per ..: se expand—not main seek would manner all transac- that matter or even most if market share.8 tain or decrease—its own (citing prices” lower tions occurred acknowledged evi this The-District Court 656) Fructose, (emphasis High F.3d at submitting it to jury Instead dence. added)). however, fact, question of disputed as a is trap. into There majority fell this The summarily concluded Court District emails, evidence, form plenty not- collusion be this did show manufac the other Ti02 that DuPont and oligopoly. an market is Ti02 cause price increase announcements turers made Corp. v. E.I. De Nem Du Pont Areeda hope “in rivals will follow.” (D. ours, 242-43 Del. F,Supp.3d ¶ 1422b, Law Antitrust Hovenkamp, & took majority ap the same is not conclusive evidence this 171. While Court, the the District proach. Just like tips in scale favor agreement, expert majority weighed the “repe there finding when finding: made a issue and this increase tition” such announce unilateral) share (likely market else, in case nothing If this ments. Id. insufficient in case stability was ’ price announcements. repetitive volves It agreement. or action show'concerted suppliers clearly gave the This repetition “weighing to me that if court seems id., further.illu which is expectation,” “an “making findings” it' should evidence” parallel minated drastic trial, by a on a full record and done from 2002 to announcements price increase finder, i.e;, jury judge sitting or fact a emails, conjunction in with 2013. These jury. a without of the pattern, frequency, and. effect announcements, possi to tend exclude of Dovetailing this evidence static with Ti02 were bility that manufacturers Ti02 is that the market shares evidence acting independently. of intercompany made sales manufacturers Ti02, to an- meaning, they sold Ti02 one presented also might pure 'indicate other. This suppliers conscious- DuPont- other and manu- fact .the competition but static market for-the. maintained shares.-Mar- ly in that Company B has a market share majority Valspar’s .on 40% reliance The criticizes B, scholarship opposed legal industry. Obviously, Company as to This A and as- case law. (1) interesting given this Court has is suming they competitive, would want to are legal scholarship to inform long., turned acquire market-share for themselves as much involving in their antitrust decisions cases Therefore, defy logic possible. it would all as (2) oligopolists, majority and itself cites for procompetitive of behavior and notions multiple re- legal scholarship—including law share) (who Company lower market A has a times. view articles—seven stay affirmative actions 30% to take grow beyond market share. a 30% rather 30%, say example, Company A a 8.' For has industry particular in market share a frequently majority sold the Ti02 to The facturers their notes that the intercompa- ny competitors, prices. For below-market sales unlikely were low number and example, agreement. when DuPont would sell Kronos show an According to this Ti02, paid average logic, less of 16% is of Kronos there no a “trué-up” for intercompany the Ti02 than DuPont’s own because fairly customers sales Ti02 quantity. very purpose did. DuPont sold low in also of Millennium Yet One prices.9 “true-up” at below-market is for Valspar’s companies within Williams, experts, identify Dr. able to cartel their -maintain market share. Therefore,-it years might necessarily below-market sales between the make Ti02 sense for company large to make a manufacturers. cross- number, sale, large cross-sales, or a majority downplays this evidence order maintain its relative market intercompany ap- It below-market sales. share.11 parently just these considered sales as activity Obviously, consistent with non-collusive intercompany sales “could” (1) losses, Vals conspiracy with DuPont be gains because: used redistributions par, production some in its 152 F.Supp.3d Ti02 and “might” own (2) 2006; plant DuPont in Mississip- id. explained by plant, the closed DuPont However, months; (3) pi shut for “mights” five these cast down “coúlds” argu sales to Kronos were on—hot governed support—DuPont’s DuPont’s doubt a patent judgment. from ment for summary settlement Where there Court, 2006 to 2008. The are District and the reasonable there was inferences majority, likely intercompa- conspiracy the volume more than not to fix found ny summary sales to constitute a prices, judgment proper.12 insufficient “true- Court, up.”10 The majority, District like the ac Dioxide, genuine no Titanium at 814. the movant that there is shows dispute any as to fact material and the mov- "true-up” companies 10. A occurs when in a judgment as a entitled to matter ant gains their individual redistribute 56(a). Simply law.” Fed. R. Civ. P. comply and losses with order their con- types courts exercise caution these must al., spiratorial agreement, Kovacic et Plus away propo cases does not 56’s .do Rule Factors, at 423. "leads Such a transaction to a genuine disputes sition material fact strong inference of collusion” since there is preclude summary "Generally, judgment: explanation” "no reasonable noncollusive summary judgment on a burden movant’s prices” intercompany sales "nonmarket be- motion in an case ‘is no different antitrust supposed companies tween to be ” Intervest, than in case.’ other competing with one another. Id. cases, deny courts must 159. In these still example, say Company To 11. use another A summary judgment genuine if there is a dis share, enjoys of the while 35% market Com- pute of fact "view the facts material and and pany has market B 50% of the share. Assume any therefrom in reasonable drawn inferences and, thus, colluding A and B are want to light party opposing most favorable to prices per raise market and maintain shares added) (emphasis summary judgment.” Id. agreement. Company their Then assume that 456, Kodak, (citing 504 U.S. at Eastman drops Company may A’s share B to 33%. sell 2072), majority this. did not do Also S.Ct. The product very Company small amount o'f A analysis, contrary majority's entire simply Company A to allow to maintain its "special ap-' and "caution” we consideration” Mistaking insignifi- market share. this as an ply types sup in these of cases informs—not sale, merely cant size or-lack plants—the guidelines general found Rule frequency, oversight. would be an 56. 12. Federal Rule of Civil Procedure 56 states: grant judgment "The summary court shall if added); Inter Superior phasis explanations of DuPont’s

cepted each Offshore nat’l, Grp., Fed.Appx. v. Bristow Inc. conduct and conspiratorial possibly (3d 2012); Milberg Burtch v. Cir. explanation. much without adopted each (3d Inc., Factors, Cir. 662 F.3d unacceptable should be approach This Li 2011); Brokerage Antitrust In re Ins. judgment stage. See summary (3d 2010); Flat tig., (explaining we 618 F.3d Glass, 385 F.3d majority at 361. Yet the piece not “consider each individual should present evi require Valspar if could seems disregard it we of evidence meetings conversa dence direct it as consistent with feasibly interpret that since majority reasoned tions. The prices”); to raise agreement of an absence (to no that there Petruzzi’s, evidence create “there meetings during these fact, plaintiff discussion of material genuine issue item, agree of an certainly no evidence match, piece item for each not “need movant, short.” ment,” Valspar’s argument “falls but by the proffered of evidence Maj. atOp. stan the ‘scintilla’ simply must exceed dard.”); Hovenkamp, Antitrust Areeda & presented various reality, Valspar In (4th 2011) 14.03b, § at 14-25 ed.

Law evidence. conspiracy forms traditional “disprove all noncon- (plaintiffs need a Millen- example, Valspar presented For for explanations the defendants’ spiratorial competition stating “we have nium email judgment). summary prevail conduct” an- increase on the Oct board Having “competition nouncement.”13 Conspiracy Evidence

3. Traditional announcement for a board” suppliers some- certainly conveys is often conspiracy evidence Traditional exchanged assur- together and got how in a case important “plus factor” the most action,” i.e., to announce of “common ances Chocolate, F.3d at this one. like goes for the prices. Id. The same the same is evidence Traditional “collective emails about suppliers’ got together and ex- defendants “the getting ev- industry14 and of the needs” or action changed common assurances or, way, put another eryone “on the bus” even plan adopted a common otherwise horses.” “on their conversations, or ex- meetings, no though E.g., id. changed are shown.” documents easily be read Today’s decision could conversa- though meetings, “no 398. Even of an require direct tions, are re- exchanged or documents” despite the case fact oligopoly/antitrust conspiracy, quired direct evidence (nor prior jurisprudence that neither our essence, require, urged us DuPont Court’s) required has ever Supreme exactly that. . more, it is even such evidence. What’s or con- meetings no correct to state that repeatedly explicitly This has Court place. took competitors versations between conspiracy” that “traditional held met with Millennium meetings, con- CEO though “even no exist very next of Huntsman. versations, the President exchanged documents (em- email stated day, an Millennium internal F.3d at 398 shown.” certainly Dioxide, jury could conclude reasonable F.Supp.2d at Titanium 829. 13. referring to the opposite: the author was to mean the Court read this The District n industry mem- Ti02 collective needs alone. How- of Millennium "collective needs" bers. email, ever, a in the of the entire context read after they “competition had board for Huntsman’s President personally met A price the Oct increase announcement.” with Millennium’s A jury CEO. should be years permitted DuPont an- been few earlier decide whether a meet- price days ing manufacturers, a few after nounced increase with the Ti02 in which Jim met Kronos and then with explicitly Fisher with “improving] pric- discussed enough, ing,” DuPont. if that accord- supports And wasn’t an inference of concerted Fisher, ing suppliers, to Jim at a meet- action. This is the powerful exact sort of ing together, “discussed the evidentiary synergy need take the majority implies is advantage tight Valspar’s market conditions to absent ap- case.16 This improve pricing.”15 proach by misses a mile an essential truth courtroom litigation: actual that circum-

I am not sure how this circumstantial valid, stantial competent, evidence is and stronger. unequivocal- evidence could be It every vital evidence almost conspiracy ly alleged conspirator’s shows that one trial, civil or criminal. The courtroom liti- (Millenium’s) CEO met another al- with gation process, though messy sometimes (Huntsman’s) leged conspirator’s Presi- unpredictable, is preferred method days price dent before a parallel increase for the resolution of questions un- factual meeting announcement. This occurred at And, der our Seventh Amendment. with all stating same time an email was written quirks, the civil trial is a far better “competition” Ti02 was “on board” evidence, of evaluating method direct or particular price with a increase announce- circumstantial, parsing an academic persuasive, ment. Even more there is evi- of a printed developed discovery. record suppliers dence that all the Ti02 discussed “improv[ing] pricing” industry at an con- inculpatory flavor of these emails ference that in 2002 DuPont suppliers enhanced the fact that Kronos price announced an identical TDMA, part were all a gave which just days increase after Jim Fisher met highly them access to confidential informa- “competitors.” these two tion via the majority attempts GSP. The juryA analogize should be allowed determine the GSP to In re Citric Acid (9th meetings Litigation, Kro- whether Fisher’s with both F.3d 1090 Acid, nos DuPont—days parallel Appeals before a Citric Court of U.S. price rejected theory increase announcement—were for the Circuit sus- Ninth pect. jury alleged A conspirators should be allowed to deter- used their mine “competition” membership whether an email that trade association as conducting conspiratorial is “on an- front for board” activi- action, particu- aptly pointed nouncement was ties. 191 F.3d at It concerted 1097-98. larly day when this one that if courts email was written out “allowed to be Dioxide, (3d ¶ 1422b, 2010) ("Although 15. In re ... Titanium ed. Fisher) added). (emphasis (quoting proof interdependent pricing, 812-13 mere stand- alone, ing proof not serve as anof anti- violation, we believe trust majority particu- 16. The does not discuss this evidence, concerning purpose and effect of larly damning generally but states announcements, together when considered that "the record does not show the existence concerning parallel pat- agreement.” Majority with the evidence an actual restorations, insistence, sup- Contrary majority’s tern of n.l to the sufficient permissible port a actual can be shown in the reasonable and exact inference of tacit, way agreement, express to do so in has set out whether or to raise added). Hovenkamp, prices.”) (emphasis case. See Areeda & Law Antitrust stabilize n alone, publicly price we announced a from such DuPont inc inferred activities days con- Jim Fisher prior, allow Four inference of rease.18 had would have Intelligence took a association called DuPont’s Competitive whenever trade spiracy Acid, Manager, Connie In that any Hubbard. conver almost actión.” Citric added). sation, pric conveyed at Fisher confidential (emphasis of ing information one DuPont’s about majority agree I with the that member- was competitors: This the first Huntsman. association,- itself, in cannot ship in a trade of this .had heard Huntsman in Hubbard conspira- of as evidence serve traditional not crease it had been announced Nonetheless, task is cy. our view itself, interaction, in This publicly. provides membership in TDMA suppliers’ Ti02 evidence in that it traditional conjunction in in a vacuum. When viewed Huntsman and DuPont have suggests evidence, membership the other with implement used Fisher “common' light in a can seen much different though prices fix no plan” “even meet starters, For Citric Acid. there is evidence n conversations, exchanged ings, or docu (absent Acid, here Citric shown” ments are between Huntsman and case) in- parallel price other of 31 Chocolate, 801 at DuPont. 398.19 of Nearly all announcements. these crease days plentiful price thirty sig came .is within announcements- There (another factor) meeting.17 plus case. naling Also absent this TDMA Litigation, presence or-Citric Acid is the Products Antitrust Chocolate Petroleum Fisher) (Jim who industry Appeals consultant the U.S. Court Ninth multiple nearly simultaneously Circuit circum was retained confronted identical gather signaling. pricing informa- stantial “competitors” to (9th here, no Like Obviously, say tion. with F.2d court could Products, was agreed DuPont to fix certainty that Petroleum there “price suppliers TDMA competitors’ the other at that the increases were with occasionally meetings. making judicial But determi- announced advance their certainty job is not date.” n.11. nation with our effective This that, announcement, type preemptive summary judgment. point is , evidence, recognized, is light in a Ninth Circuit “effective above viewed most allowing Valspar—whose theory leader communicate favorable makes infer- reactions sense—creates an its intention and receive with economic perfect having to action to reach incur substantial risk.” Petroleum ence of concerted sufficient out Prods., 446 n.11. ajury. this, (The it the role maintains majority downplays , DuPont made it key publicly because was re- “industry Jim Fisher. announcements consultant” quired to so per Fisher do contracts with suggesting There is evidence was it carry suppli as a vehicle to out customers. While true DuPont used notify required its customers when agreement. ers’ collusive On June evidence, 17. DuPont's 19.Obviously, begin insistence and oth- based did attending meetings cross-company TDMA until 2010 moot Fisher’s com- er evidence given meetings—long munications, that it attended CEFIC jury could infer reasonable were, before 2010—that concurrent no between the direct conversations Ti02 meetings. F.Supp.3d Valspar, TDMA if Fisher acted were needed manufacturers n n.5. mouthpiece. their Dioxide, 18. Titanium price, is changed

it there no evidence post-conspiracy price with 3 increases. Id. Here, contrast, required public- was to do so stark compare that DuPont we must fact, pre-conspiracy ly, suggests post- In evidence increases with 31 the record conspiracy words, Notably, increases. In other pub- DuPont in opposite. never Chocolate, pre-post just ratio was licly price sup- announced This decreases. above 1:1 ratio 10:1. It whereas ports an here public inference DuPont’s would be difficult claim that such a price increase were announcements change in conduct is not “abrupt” or “radi- purpose collusion rather than customer (31) cal.” In a case unprecedented with notification. parallel price announcements, increase The Ti02 manufacturers even admitted finding such a creates an unwarranted public price did use increase an- plaintiffs burden for relying on circum- notify customers. When nouncements stantial to prove a price-fixing purpose of public asked about an- conspiracy. majority attempts The to ex- nouncements, Jay agreed Kronos’s Becker plain shift, abrupt radical and imply- on rely public price he would “never” ing “just it in uptick frequency.” was to provide Kronos customers with Second, the nature of the communica- Gary Cianfíchi, notice of a increase. tions competitors between in Chocolate is Millennium, similarly from that he stated from communications different here. did not believe customer contract re- Chocolate, we found the communications quired public Larry Rogers, notice.. from unpersuasive part in “unlike Kronos, “really, say testified he couldn’t Glass,” Flat the communications did “not why” price were pub- increases announced pricing plans dependent reveal on others licly given that the customers were notified Id. at 408. Here there following.” evi- privately writing. This also dence, as in give that could rise the, supports inference manufactur- to an inference that Ti02 manufactur- public price ers used increase announce- pricing, dependent upon ers’ decisions were fixing ments as a concerted method the decisions of others. Like Flat Glass prices market-wide. Chocolate, unlike communications traditional high-level here were made between rather this case is much than it different employees. than low-level The evidence recognized in Chocolate. We Chocolate that contemporane- Fisher communicated company’s departure pre-conspira- from ously Kronos, from Millenni- people with cy conspir conduct can serve as traditional um, Huntsman, and suggests DuPont evidence, acy important which is the “most suppliers’ pricing plans individual plus factor.” “dependent following.” on others Id. The change 410. The is that the caveat advising to modify pricing DuPont email pre- to post-conspiracy conduct must “[o]nly meant a Kronos in- if or “abrupt.” “radical” Id. at 410. In Choco not be similarly crease “undercut” would late, or abrupt there was no radical suggests pricing plans “dependent oth- change. depar case This differs from the added). following.”' (emphasis Id. ers As pre-conspiracy ture of conduct Choco that, testimony does Fisher’s direct at an significant respects. late in three industry meeting, the Ti02 suppliers “dis- First, basic; and most Chocolate advantage tight involved to take need cussed comparing pricing.”20 pre-conspiracy market conditions improve increases Dioxide, In re Titanium 812-13. “[cjonduct proposition relies on the that certain Finally, evidence executives competition as permissible to confirm others’ asked Jim Fisher consistent not, fur- planned price standing increase announcements illegal conspiracy does with suppliers making ther indicates the alone, of support an inference on own—as the evi- decisions not their summary judgment.” to sufficient survive rather, as dence showed Chocolate—but 588, Matsushita, at S.Ct. 475 U.S. Glass, suppliers’ in Flat other based 240, 1348; at Valspar, see price decisions. (relying prin- on this 252-53 of

Third, pieces respect in Choc- to individual pre-conspiracy ciple the evidence). Glass, products” at olate related “different But see Flat 385 F.3d (courts increases. 801 post-conspiracy the not “consider each indi- shall Here, pre-conspiracy 410. the F.3d at disregard it if piece of evidence and vidual price increase announce- post-conspiracy feasibly it as consistent interpret we could fungible prod- to the same ments related agreement to raise with the absence of an argument, argu- unlike the uct: This Ti02. wrongly ap- prices”). Matsushita seems Chocolate, appellants is an ment the separate each plied when used discredit comparison. Choc- “apples-to-apples” exact proffered an antitrust piece olate, 801 at 410. Glass, 385 F.3d plaintiff brings forth. Flat has been overlooked in point One final n.8, wrongly It also n.9. comparing this case Flat Glass and this, plain- in a applied case like where Flat Glass nor Choco- Chocolate: neither fix theory—oligopolists conspired to tiffs’ nearly many parallel price late involved as economic Id. prices—makes perfect sense. as we have here. increase announcements 358; Petruzzi’s, at 1231-33 998 F.2d clear, again, parallel price To these be (rendering presumption Matsushita announcements, alone, increase are viewed “unnecessary” inferences against liberal enough summary judgment. not to defeat “theory is im- plaintiffs’ not However, we are not “consider each plausible”).21 piece disregard individual It too to view the would difficult feasibly interpret if consis- it we could announcements, parallel price increase of an tent with the absence Glass, alone, Flat prices.” standing raise as consistent with interde- alongside all other evi- This, course, viewed ignore When pendence. would case, unprecedented par- dence in this pre- miniscule amount of comparatively announcements—many allel conspiracy price increase announcements: days which were made hours within also too difficult to view 3. It would not be each an inference that the other—create stability of the market share relative suppliers’ conduct was collusive. alone, standing as consis- suppliers, Ti02 This, course, interdependence. tent with impor- principles especially

These ignore intercompa- the simultaneous given majority continually tant would that, interpretation, Contrary requirement dently. to DuPont’s relied on the DuPont summary judgment, Valspar possibility” survive must "tends to exclude does present evidence that "tends to exclude possibili- "unequivocally excludes the mean possibility” alleged conspirators that the act- defy ty.” would our Such a standard basic Matsushita, independently. ed 475 U.S. at jurisprudence, summary judgment which 1348. All of the evidence this S.Ct. light most the evidence in a favorable views case, totality, in its tends to exclude viewed nonmoving party. indepen- manufacturers acted that the Ti02 ny accepting value. The same sales below-market inferences circumstantial price-fixing evidence in involving TDMA cases oli- goes the manufacturers’ gopolies. See 801 F.3d at 412 membership, meetings, CEFIC and the (explaining approach); this inherently is nothing GSP. There collusive (same). agree F.3d at 358-59 I that this associations, industry about trade meet- approach cautious is consistent with our too, or aggregated This ings, statistics. Circuit’s I disagree law. majori- with the coprse, role Jim ignore would Fisher ty’s general transformation “cau- played as a communicator confidential tious” approach approach into new suppliers information between the Ti02 appears to the door shut on a district co-conspirators’ executives ability court’s accept reasonable infer- days meetings together had hours be- in any involving ences oligopolists. case they parallel fore announced increas- Such a approach black-and-white is not es. resonant of of type “caution” discussed majority plau The seems to discount the Chocolate, in Flat Glass and but rather sibility of Valspar’s theory. economic This acts to usurp jury’s role in deciding point in factor has been a focal our anti cases loaded circumstantial evidence jurisprudence for decades. trust Matsushi of an prices. actual to fix 588-91, ta, 1348; 106 475 U.S. at S.Ct. Chocolate, In this Court confirmed that 396; Chocolate, Glass, Flat “[ujnder Matsushita, range of accept- 358; Petruzzi’s, F.2d at 1232. able inferences that be drawn from majority this The substitutes distinct fac ambiguous or circumstantial evidence var- theory tor with of general the more inter plausibility ies with the of plaintiffs’ Op. dependence. Maj. at 191 Ac See n.l. theory.” 396; see also id. at n.8 Glass, cording in Flat to the this majority, (comparing cases where this Court has in Court refused draw liberal inferences drawn plain- liberal inferences when the plaintiff of of theory favor theory tiffs made with cases sense where fact, interdependence. of In this Court did this Court do refused to so because the Glass, in Flat draw liberal inferences sense). theory In did make partly summary judgment, reversed be theory this Court did view inter- plaintiffs theory cause the made economic dependence complete aas roadblock to stated, perfect It simply passing, sense. drawing liberal inferences. Id. 396-97. in accepting that courts must be “cautious only happen time this should is if the from circumstantial inferences evidence” plaintiff relying “ambiguous types these cases—not that do not Up today, alone.” Id. at 396. until Glass, do so. Flat 385 F.3d at 358. general theory interdependence never There is no disagreement supplanted here that of the court’s consideration “cautious” approach plaintiffs theory.22 courts should economic take not, assuage attempt majority this concerns about dicta. This as the claims, analysis, majority justify profound tries its some announcement aof Indeed, through heightened legal pur new standard Chocolate. Ac standard or rule. this cording prece portedly language this majority, to the Circuit’s axiomatic has never once long required plaintiff type price-fixing dent has in this been in used other case Matsushita, likely volving prove oligopolies. generally case to that it “more See 574, (not using price-fixing true not” that there was con U.S. this S.Ct. Monsanto, spiracy summary language anywhere); judg in order to survive 465 U.S. n.1, 194, n.4, (same); Majority ment. 201- 104 S.Ct. 1464 (same); Food, Baby majority 201 n.14. The too F.3d 350 makes much of 166 F.3d 112

C. Conclusion MCGANN, Appellant Paul Richard am, theory of of the certainly I mindful v. presence and the

interdependence said, very USA, from the INC. oligopoly. With CINEMARK theory that start, presented No. 16-2160 sup- It economic sense. perfect makes strong Appeals, ported theory with United States Court (an parallel form of 31 Third Circuit. conduct amount) parallel price unprecedented Argued: November con- Recognizing increase announcements. 2017) (Opinion October Filed: on its parallelism be insufficient scious summary judgment, to survive Vals- own sup-

par presented also viable (i)

port plus price.signaling, of the factors: information,

(ii) exchanges confidential shares, (iv)

(iii) relatively static market at below

intercompany sales Ti02 mar- (v) pre- abrupt, departure price,

ket conduct, (vi) sus- a market Although Ti02 conspiracy.

ceptible pre- also oligopoly, is an

market simply restate did

sented

interdependence: non-price acts against -Finally, presented tradi-

self-interest. togeth- conspiracy evidence. Viewed

tional

er, all this evi- compartmentalized, preclude more than sufficient

dence was .

summary judgment. : reasons, respectfully I dissent.

For these (same). assuming conspiracy. arguen- phrase The use of of a Even Chocolate enees alleged simply conclusion that do actually reflected the Court's "standard” stick, case, plaintiffs particular measuring plaintiffs, in that had not this case able, certainly point infer- it. .been reasonable have met

Case Details

Case Name: Valspar Corp. v. E.I. Du Pont De Nemours & Co.

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 14, 2017

Citation: 873 F.3d 185

Docket Number: 16-1345

Court Abbreviation: 3rd Cir.