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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
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.
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.
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
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
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.
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
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.
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.
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.
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."
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
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
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
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
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
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
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.")
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 § 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 ...