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IN RE HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION

August 23, 2001

IN RE HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION


The opinion of the court was delivered by: Mihm, Judge

    ORDER
This matter is now before the Court on various motions for summary judgment by Defendants. For the reasons set forth below, Cargill's Motion for Summary Judgment [#630] is GRANTED; A.E. Staley's ("Staley") Motion for Summary Judgment [#632] is GRANTED; American Maize's Motion for Summary Judgment [#650] is GRANTED; and Archer Daniels Midland's ("ADM") Motion for Summary Judgment [#652] is GRANTED.

BACKGROUND

I. The Parties

Plaintiffs are a consolidated class consisting of all U.S. purchasers of high fructose corn syrup ("HFCS") who purchased this product directly from any Defendant at any time during the period from July 21, 1991, through June 30, 1995.*fn1 Excluded from this class are governmental entities, Defendants, subsidiaries/affiliates of Defendants, other HFCS producers and their subsidiaries/affiliates, and those purchasers who have opted out of the class. Defendants ADM, Cargill, Staley, and American Maize are United States based manufacturers and sellers of HFCS.*fn2 The HFCS industry in the United States is highly concentrated and is an oligopoly.*fn3 ADM produced HFCS at corn wet milling plants in Clinton and Cedar Rapids, Iowa, and Decatur, Illinois. Cargill's HFCS plants were located in Cedar Rapids and Eddyville, Iowa, Dayton, Ohio, Memphis, Tennessee, and Blair, Nebraska (after August 1995). Staley produced HFCS at corn wet milling plants in Decatur, Illinois, Lafayette, Indiana, and Loudon, Tennessee. American Maize produced HFCS at plants in Decatur, Alabama, and Dimmitt, Texas. CPC's HFCS production was done at plants in Argo, Illinois, Winston-Salem, North Carolina, Stockton, California, Port Colborne, Ontario, London, Ontario, and Cardinal, Ontario. During the time period relevant to this litigation, ADM, Cargill, Staley, American Maize, and CPC accounted for an average of more than 90% of the production capacity for HFCS in the United States and Canada.

II. The Product and Process

HFCS is produced from corn and is used as a sweetener in various applications. In the initial milling process, corn is separated into "starch slurry" and corn co-products, which include corn gluten feed, corn gluten meal, and corn oil. Starch slurry can then be used to make a variety of products including HFCS, ethanol, dextrose, crystalline fructose, potable alcohol, industrial starch, and regular corn syrup. To produce HFCS, enzymes are added to the starch slurry to convert it into dextrose syrup. It can be manufactured to have various sweetener characteristics, depending on the percentage of fructose in the blend. HFCS producers manufacture two primary types of the product, HFCS 42, which contains 42% fructose, and HFCS 55, which contains 55% fructose. To create HFCS 42, another enzyme is added to the dextrose syrup; the HFCS 42 can then be blended with syrup containing a higher percentage of fructose to create HFCS 55.
Both HFCS 42 and HFCS 55 are commodities in that their characteristics do not change from producer to producer. HFCS 42 is used as a sweetener in products such as soft drinks, canned goods, baking products, condiments, jams, dairy products, and alcoholic beverages and is purchased by a broad range of customers, including food processors, confectioners, bakers, dairy producers, canners, and soft drink manu-facturers. HFCS 55 is primarily used in the soft drink industry as a substitute for sugar but is also used in canned goods, fountain syrups, confectionery products, baked goods, dairy products, and alcoholic beverages. Demand for HFCS is inelastic and cyclical because of seasonal changes in demand for products containing HFCS; demand peaks in the summer when sweetened beverage sales rise.
There is very little substitutability between corn syrup and HFCS, and the end uses for corn syrup differ from the end uses for HFCS. Although sugar was formerly used by the soft drink industry as a sweetener, the industry has since shifted to HFCS, as functional differences in many applications make HFCS preferable to sugar.

III. The Industry

Between 1988 and 1995, the industry's total HFCS output increased by 3.6 billion pounds.

ADM increased its shipments by 13%, Cargill increased its shipments by 60%, Staley increased its shipments by 21%, American Maize increased its shipments by 37%, and CPC increased its shipments by 18%. HFCS producers also increased their HFCS finishing capacities;*fn4 ADM, American Maize, Cargill, CPC, and Staley increased their finishing capacities by 88.9%, 47.9%, 52.4%, 38.7%, and 33.2% respectively. During this same period, there were fluctuating market shares. Cargill's market share went from 20.8% in 1988 to 26.3% in 1991 to 25.6% in 1994.
ADM's market share went from 30.6% in 1988 to 25.3% in 1991 to 26.6% in 1995. Staley's market share went from 22.3% in 1988 to 15.6% in 1992 to 19.5% in 1994. Furthermore, capacity increased by more than the increase in demand.

Each of the Defendants was a member of the Corn Refiners Association ("CRA"), a trade association for members of the corn refining industry, and each had been a member prior to 1988.

The CRA stems from a predecessor organization that was founded in 1913 and has a professional staff of nine persons, including a President, a Vice President, and directors of congressional affairs, communications, and technical affairs. The CRA's activities are conducted through a Board of Directors and several committees. Between 1988 and 1995, the members of the CRA sent their monthly grind and shipment figures for HFCS and other products (such as corn syrup, starch, and dextrose) to the accounting firm of Ernst & Young ("E&Y"), which was retained by the CRA to gather members' statistical data. E&Y combined the individual producers' data and transmitted only the aggregate numbers to the individual producers. Only the independent accountants at E&Y saw individual company data; none of the CRA staff or representatives of the corn refiner members saw individual company data. Monthly shipment information was then provided by the CRA to the U.S. Department of Agriculture and the Federal Reserve. Defendants regularly published list prices for HFCS before, during, and after the alleged conspiracy period. Competitors' price lists were obtained from customers and industry observers.

However, many large customers nevertheless bargained individually with producers on multi-year volume contracts or tolling agreements in order to receive discounts off the published list prices.

A tolling agreement is an arrangement where a customer purchases corn and pays the HFCS producer a processing fee to manufacture corn into HFCS, receiving a credit for sale of the co-products produced during the process; the parties negotiate the processing fee, and the customer assumes the risk of gains or losses associated with fluctuations in corn and co-product prices.

Tolling agreements accounted for significant sales during the alleged conspiracy period. Defendants also contend that these large customers changed HFCS suppliers in order to obtain lower prices.

Contracts for the purchase of HFCS are typically negotiated in the fall for the following year.

IV. The Alleged Conspiracy

In 1992, the Federal Bureau of Investigation ("FBI") began an undercover investigation of price fixing at ADM with the aid of Mark Whitacre ("Whitacre"), who was at that time the president of ADM's Bio-Products Division, the division which produced lysine.*fn5 Over the next two and a half years, Whitacre secretly made between 120 and 130 tapes of conversations and meetings in the lysine industry, none of which contained any recording of any employee of Cargill, Staley, CPC, or American Maize. The investigation culminated in an FBI raid on ADM's headquarters in June 1995. As a result of the investigation, ADM pled guilty to price fixing in the lysine industry, as well as the citric acid industry, and paid $100,000,000.00 in criminal fines; civil cases followed closely on the heels of the criminal proceedings. Additionally, three ADM executives, Michael Andreas ("Andreas"), Terry Wilson ("Wilson"), and Whitacre, were criminally prosecuted, convicted, and sentenced to prison. With the exception of ADM, none of the other Defendants involved in this case were implicated in either the lysine or citric acid conspiracies, and no indictments were returned with respect to HFCS.*fn6

The Plaintiff class contends that beginning as early as 1988, Defendants, through their senior executives responsible for corn wet milling products, conspired to unlawfully fix prices in the HFCS industry in violation of § 1 of the Sherman Act. Like the conspiracies identified by the Department of Justice in the lysine and citric acid markets, the HFCS conspiracy was allegedly accomplished by these executives dictating prices to be quoted and charged to purchasers, limiting knowledge to a centralized core group of executives, negotiating inter-company purchases among themselves when required to balance volume discrepancies, attending CRA meetings to facilitate and conceal communications in furtherance of the conspiracy, and using the CRA to transmit information among the co-conspirators. The class also points to the fact that ADM owned 32% of American Maize's Class A stock and 27% of all outstanding shares, as well as the fact that it was the largest shareholder in Tate & Lyle, PLC, the parent company of Staley since 1988, as circumstances that promoted and furthered the conspiracy. The Plaintiff class argues that throughout the conspiracy period, Defendants' market shares were essentially stable, and substantial barriers prohibited other competitors from entering the HFCS market.
The Plaintiff class identifies certain pricing practices as circumstantial evidence of conspiratorial activity. Price announcements generally occurred within a few weeks after the CRA meetings, which Plaintiffs suggest were used as a cover for Defendants' secret price fixing conferences. Defendants also appear to have followed each others' lead with respect to HFCS pricing by offering similar list prices and utilizing the same pricing mechanisms, which shifted uniformly from time to time. Additionally, the Plaintiff class suggests that on several occasions, one or more of the Defendants refused to take advantage of opportunities to acquire the customer of another Defendant.

V. This Litigation

Following the consolidation of the individual class actions and the transfer of the Gray & Co. tag-along case to this Court, the class was certified, and a Consolidated Amended Class Action Complaint was filed on March 1, 1996. After years of extensive discovery, two major interlocutory appeals, and a substantial delay pending the release of tapes by the Department of Justice at the conclusion of its criminal grand jury investigations, the remaining Defendants have now moved for summary judgment. Plaintiffs have filed their response, and the Court entertained oral argument on June 21, 2001. The matter is now ready for resolution, and this Order follows.

LEGAL STANDARD

A motion for summary judgment will be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552 (1986). The moving party may meet its burden of showing an absence of material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 2553. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex Corp., 106 S.Ct. at 2553. This Court must then determine whether there is a need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party. Anderson, 106 S.Ct. at 2511. "In determining whether a material factual dispute exists, the court views the evidence through the prism of the controlling legal standard." Nebraska v. Wyoming, 507 U.S. 584, 113 S.Ct. 1689, 1694 (1993). Here, that means the evidence must be viewed through the prism of antitrust law.

PRELIMINARY EVIDENTIARY RULINGS

In attempting to meet its burden on summary judgment, the Plaintiff class relies on two categories of evidence that are subject to objection; namely, statements derived from DOJ undercover tapes and FBI 302's (the "DOJ evidence") and the inferences to be drawn from the invocation of the Fifth Amendment by certain former ADM executives.

I. DOJ TAPES

A substantial portion of the Plaintiff class' case is based on evidence derived from the undercover tapes made with the assistance of ADM's Mark Whitacre. Although these tapes contain extensive evidence of conspiratorial activity in the lysine and citric acid conspiracies, HFCS is mentioned only tangentially in a handful of the hundreds of hours of taped conversations. All of the taped statements were made out of court, and there were no statements by employees or agents of Cargill, Staley, or American Maize.
Defendants argue that since the tapes are out-of-court statements, they constitute inadmissible hearsay. Moreover, since the taped conversations contain no statements by any employees or agents of Cargill, Staley, or American Maize, they cannot be admitted as admissions against the interest of those Defendants.
Plaintiffs assert that the tapes are admissible under Rule 404(b) of the Federal Rules of Evidence, which provides for the admission of evidence of a party's other bad acts when introduced as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. . . ." Specifically, Plaintiffs contend that the DOJ tapes are probative of intent to conspire, motive, plan, and lack of mistake. While the Court agrees that the tapes could possibly be probative for these alternative purposes with respect to ADM, the same cannot be said for the remaining Defendants, who did not play any role in the recordings and are not even identified by name in any conversation.
In order for the tapes to be admissible against Cargill, Staley, and American Maize, they would have to be admitted as statements of a co-conspirator. Under Rule 801(d)(2)(E), out-of-court statements are not hearsay if they are offered against a party and are statements "by a co-conspirator of a party during the course and in furtherance of the conspiracy." The Seventh Circuit has identified three elements that must be established by a preponderance of the evidence in order to qualify for admission under 801(d)(2)(E):
(1) the existence of a conspiracy; (2) that the person making the statement was involved in the conspiracy; and (3) that the statement was made "during the course and [in] furtherance of the conspiracy."

Stagman v. Ryan, 176 F.3d 986, 997 (7th Cir. 1999), citing Garlington v. O'Leary, 879 F.2d 277, 280 (7th Cir. 1989).

As set forth below, the Court finds that Plaintiffs have failed to adequately demonstrate the existence of the HFCS conspiracy alleged, much less the participation of any of the taped individuals in a HFCS conspiracy. Moreover, even assuming that a conspiracy had been adequately proven by a preponderance of the evidence, the nature of the conversations recorded cannot reasonably be said to have been statements made in furtherance of the conspiracy, as the conversations relate primarily to either lysine or citric acid and reference HFCS only in a sparse, tangential, and ambiguous manner. There is nothing contained in the tapes offered as evidence in this case which could reasonably be construed as "part of the information flow between conspirators intended to help each perform his role." Garlington, 879 F.2d at 283; United States v. Godinez, 110 F.3d 448 (7th Cir. 1997). Accordingly, the Court finds that the evidence contained in the DOJ tapes is inadmissible against Cargill, Staley, and American Maize.

The Court now turns to the question of whether this evidence is admissible against ADM.

Unlike the situation with the other Defendants, the DOJ tapes contain statements by ADM's employees and agents that implicate them in other antitrust conspiracies.

When evaluating the admissibility of other acts under Rule 404(b), this court uses a four-prong test that incorporates the relevancy aspect of Rule 403: (1) the evidence of the other act must address a matter in issue other than the defendant's propensity to commit the crime charged; (2) the other act must be similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence of the other act must be sufficient for the jury to find that the defendant committed the other act; and (4) the other act must have probative value that is not substantially outweighed by the danger of unfair prejudice.

United States v. Poole, 207 F.3d 893, 897 (7th Cir. 2000).

Here, the Court has already acknowledged that the tapes could address matters other than ADM's propensity to violate the antitrust laws; namely, intent, motive, plan, and absence of mistake. The questions of whether the other act is similar enough to be relevant and whether any probative value is substantially outweighed by the danger of unfair prejudice are much closer questions, as the record reveals substantial differences between the way the lysine and citric acid conspiracies operated and the facts with respect to what happened in the HFCS industry.

Unlike the lysine and citric acid conspiracies, there is no direct evidence of wrongdoing in the record before the Court, and although the HFCS market was the alleged model for the other two conspiracies, the circumstantial evidence does not readily conform to the asserted pattern. In the lysine and citric acid conspiracies, ADM has admitted to having conspired with foreign companies; the HFCS conspiracy alleged involves only United States based manufacturers. In the other conspiracies, trade associations were used as a cover for illegal meetings, with the sham trade association in the lysine industry even having been created expressly for that purpose. The lysine and citric acid conspirators used the same mechanisms for monitoring market share and compensating one another for exceeding the agreed-on shares. Monthly sales figures were forwarded to one of the conspirators, who then forwarded each member's information to the other conspirators so that each could monitor the market shares of the other conspirators and determine what corrective action needed to be taken at the end of the year. There was no such mechanism in the HFCS industry.*fn7 The other conspiracies also had very precise specifications and mechanisms in place to balance any discrepancies between the agreed-upon volumes and actual volumes which are not present in this case.*fn8 On the other hand, some of the same ADM individuals who were involved in those cases are also alleged to have been involved in this case; namely, Andreas and Wilson. The conduct occurred at roughly the same time as the conspiracy alleged in this case and involved similar allegations of price fixing and volume allocation.
That being said, the 404(b) evidence must still have probative value that is not outweighed by the danger of unfair prejudice. Such evidence has been found to be unfairly prejudicial where the admission of the evidence "invokes horror or emotional responses" or "makes it likely that the jury will be induced to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented. . . ." United States v. Adames, 56 F.3d 737, 742 (7th Cir. 1995); Young v. Rabideau, 821 F.2d 373, 377 (7th Cir. 1987). While all bad acts evidence is to some degree prejudicial, and there is some danger that this evidence could be considered as demonstrating ADM's propensity to fix prices and the probative value of such evidence is far from compelling, the Court cannot find that the danger of unfair prejudice outweighs the probative value and declines to impose the blanket exclusion sought by ADM.

II. FBI 302's

Defendants move to exclude as hearsay the report forms on which the FBI agents have summarized statements made by witnesses during the course of the investigation, specifically summaries of interviews with Whitacre while he was cooperating with the investigation of ADM.

In their brief, Plaintiffs only appear to seek the admission of one FBI 302 report that purports to document a statement given by Whitacre on September 28, 1993, which relates a conversation he participated in earlier that day.

The FBI 302 reports are clearly hearsay under Rule 801 of the Federal Rules of Evidence since they are out-of-court assertions and, contrary to Plaintiffs' argument, are in fact being offered for the truth of the matter asserted; the question is whether there is any applicable exception.

Plaintiffs argue that the report is admissible as a present sense impression, which provides an exception for statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed.R.Evid. 803(1). While this may provide an exception for Whitacre's same-day relation of the conversation that he participated in on September 28, 1993, the report is actually triple hearsay, as it represents an agent's documentation of the statement by Whitacre recounting a comment that was purportedly made by Andreas. In instances of multiple hearsay, the proponent must provide an exception for every link in the hearsay chain.
Plaintiffs make reference to Andreas' alleged statement as an admission against interest. Assuming that Plaintiffs' proffered version of the Andreas comment is correct and that the original Andreas comment itself could qualify as an admission against interest, the final link (that is, the actual preparation of the written report some period of time later by the FBI agent) remains unsatisfied. It is worth noting that the 302 report is just that — a report, not an affidavit or a deposition. As Plaintiffs have failed to offer an exception for the last link in this hearsay chain, the report in question is inadmissible and will not be considered for purposes of this motion.

III. FIFTH AMENDMENT INFERENCES

Plaintiffs argue that they are entitled to adverse inferences because Andreas, Wilson, and Barrie Cox ("Cox"), ADM's Vice President of its Food Additives Division, have invoked their Fifth Amendment rights and refused to answer questions during their depositions on advice of counsel.

Generally, invoking the Fifth Amendment in a civil context permits an inference that the witness' testimony would be adverse to his interests. Central States, Southeast and Southwest Areas Pension Fund v. Wintz Properties, 155 F.3d 868, 872 (7th Cir. 1998), citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Such an inference may be drawn but does not necessarily need to be drawn.
Daniels v. Pipefitters' Association Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993). Factors to consider include the nature of the relevant relationships, the degree of control of the party over the non-party witness, the compatibility of the interests of the party and non-party witness in the outcome of the litigation, and the role of the non-party witness in the litigation. Libutti v. United States, 107 F.3d 110, 123-24 (7th Cir. 1997).
Here, Plaintiffs argue that they are entitled to adverse inferences against all Defendants because three former employees of one corporate Defendant refused to answer substantive questions during their depositions; no employees of Cargill, CPC, American Maize, or Staley invoked the Fifth Amendment in their depositions. Although they are correct in the assertion that a non-party witness' invocation of the right not to testify is admissible and may result in the drawing of an adverse inference under certain appropriate circumstances, the Court finds that this case does not present such appropriate circumstances.
During their depositions, Andreas, Wilson, and Cox repeatedly invoked their Fifth Amendment right against self-incrimination for every question asked. "Once a [witness] invokes the Fifth Amendment for any question, it is [his] right to invoke it for all questions." In re Citric Acid Litigation, 996 F. Supp. 951, 961 (N.D.Cal. 1998). Under these circumstances, it is "impossible to draw a negative inference from his refusal to answer any given question, as it would be if his assertion of the privilege had been selective." Ullman-Briggs, Inc. v. Salton/Maxim Housewares, Inc., 1996 WL 535083, at *17 (N.D.Ill. 1996), citing Brinks, Inc. v. City of New York, 717 F.2d 700, 716 (2nd Cir. 1983). In reaching this conclusion in Ullman-Briggs, the court noted:
Once it became apparent to [the] questioner that he would invoke the fifth amendment privilege with respect to any question whatsoever, counsel would then be able to fashion questions in such a way as to be able to create the most damaging testimony through negative inference, "safe from any contradiction by the witness no matter what the actual facts."

Ullman-Briggs, 1996 WL 535083, at *17.

That is precisely what would occur in this case if Plaintiffs were allowed to draw the inferences requested. Many of the questions were phrased in such a way that they could not be answered without subjecting the witnesses to the potential of further criminal liability. As such, the only trustworthy inference that can be drawn from these witnesses' invocation of their right to remain silent in response to these questions is that they were refusing to address whether they engaged in the conduct alleged in each question, particularly in light of the absence of other evidence in the record confirming Plaintiffs' conspiracy theory as set forth more fully below.
Moreover, Plaintiffs want to assert these adverse inferences against not only the former corporate employer of these witnesses but also against the other named Defendants, which were completely separate corporate entities with no relationship to or control over these witnesses. The Court is unaware of any authority suggesting that this drastic extension of the concept would be appropriate, and Plaintiffs have not otherwise cited any precedent to this effect.
Under the circumstances and evidence present in this case, the Court concludes that no trustworthy inference of conspiratorial conduct can fairly be drawn from the depositions of Andreas, Wilson, and Cox without resorting to bald speculation or conjecture. See Libutti, 107 F.3d at 124 (finding that the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.")

DISCUSSION

Section 1 of the Sherman Act prohibits "conspiracy in restraint of trade or commerce." 15 U.S.C. § 1. A civil plaintiff asserting a Section 1 claim must establish: "(1) a contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant market; and (3) an accompanying injury." Denny's Marina, Inc. v. Renfro Productions, Inc., 8 F.3d 1217, 1220 (7th Cir. 1993).
The Plaintiff class can establish a genuine issue of material fact by producing either direct evidence that Defendants conspired to fix prices in the HFCS industry or circumstantial evidence from which a reasonable fact finder could conclude that Defendants conspired. Direct evidence in this context is "evidence that is explicit and requires no inferences to establish the proposition or conclusion being asserted." In re Baby Food Antitrust Litigation, 166 F.3d 112, 118 (3rd Cir. 1999).

Plaintiffs set forth in their brief six examples of purportedly direct evidence: (1) an April 28, 1993 statement by Terry Wilson that, for secrecy, ADM should minimize the number of expense reports created and should not show the true nature of the meeting or the people involved; (2) a September 23, 1993, statement by Michael "Mick" Andreas to the effect of, "What are you gonna tell Keough, that we gotta deal with two, our two biggest competitors to f___ ya over"; (3) a March 1992 statement by Staley's plant director of operations that, "We have an understanding within the industry not to undercut each others' prices"; (4) a statement by a Staley salesman that Staley could not quote a price because his boss was at an industry meeting and the pricing would not be determined until after his boss returned from that meeting; (5) a statement by Mick Andreas in October 1993 that a then-director of Staley's parent company had made a statement to a member of the lysine conspiracy that "every business I'm in is an organization"; and (6) a handwritten Cargill document stating, "entry of new entrants (barriers) and will they play by the rules (discipline)."

Plaintiffs apparently saw the weakness of their assertion that any of these constitutes direct evidence and effectively abandoned any such position during the oral argument in this case. This was a wise decision, as the Court has reviewed the examples of supposed direct evidence and finds that each of the six examples purportedly indicating that Defendants participated in a HFCS price fixing conspiracy would also require that a substantial inference be drawn in order to have evidentiary significance. Accordingly, the Plaintiff class must attempt to make its proof through circumstantial evidence.
In Matsushita Electrical Industrial Co. v. Zenith Radio Corporation, the Supreme Court set forth an antitrust plaintiff's burden in resisting a summary judgment motion. 475 U.S. 574, 106 S.Ct. 1348 (1986). Although the Court must generally draw any reasonable inferences from underlying facts in the light most favorable to the non-moving party, "antitrust law limits the range of permissible inferences from ambiguous evidence in a ยง 1 case" in that "conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Id. at 587-88. In order to survive a motion for summary judgment, a plaintiff must "present evidence `that tends to exclude the possibility' that the alleged conspirators acted independently." Id. at 588. In other words, a plaintiff relying on circumstantial evidence ...

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