# In re Polyurethane Foam Antitrust Litigation

> District Court, N.D. Ohio · February 9, 2015 · 152 F. Supp. 3d 968

URL: https://www.frixlaw.com/law-library/cases/7235448

## Case

- **Full name:** In re POLYURETHANE FOAM ANTITRUST LITIGATION. This document relates to: Direct Purchaser Class
- **Court:** District Court, N.D. Ohio
- **Decided:** February 9, 2015
- **Citations:** 152 F. Supp. 3d 968; 2015 U.S. Dist. LEXIS 15404; 2015 WL 520930
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Zouhary
- **Judges:** Zouhary
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7235448

## Opinion text

MEMORANDUM OPINION AND ORDER RE: SUMMARY JUDGMENT
JACK ZOUHARY, District Judge.
INTRODUCTION
More than four years have passed since law enforcement authorities on two continents executed raids of some of the world’s largest manufacturers of flexible polyurethane foam, on suspicion that some or all of the raided firms were active in a price-fixing conspiracy. Details of the search warrant and affidavit used in" the United States raids became known after an inadvertent public filing on a federal court docket.
Dozens of lawsuits followed, filed by direct arid indirect purchasers of foam products, who range from a person who purchased a foam pillow to large, corporations like Ford Motor and Serta Mattress. The cases were consolidated in this Court for pretrial proceedings. .
Millions of pages of discovery, hundreds of fact and expert witness depositions, and extensive motion ■, practice ensued. This *975 Court certified a nationwide class of direct purchasers (“Direct Purchasers”). The Carpenter Defendants, Leggett & Platt, Vitafoam, Inc. (“Vitafoam USA”), and Vita-foam Products Canada Ltd. (‘Vitafoam Canada”) settled with Direct Purchasers. Defendant Woodbridge Foam Fabricating, Inc. (“Woodbridge Fabricating”) and two related non-defendant entities pled guilty to federal criminal charges for price-fixing in violation of the Sherman Act.
In six Motions for Summary Judgment (five individual motions and one joint motion), the non-settling Defendants (“Defendants”) now seek to end the Direct Purchasers’ case (Docs. 1321-22, 1324-25, 1328-29). In more than four hundred pages of briefing, the parties argue the legal conclusions that must be drawn from a summary judgment record that overflows seven bankers boxes. This Court heard oral argument on the Motions (Doc. 1458). Its ruling'follows.
Standard of Review
Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is.entitled to judgment as a matter of law.” Federal Civil Rule 56(a). This Court must “consider all facts in the light most favorable to the non-movant and must give the non-movant the benefit of every reasonable inference.” Spirit Airlines, Inc. v. Niv. Airlines, Inc., 431 F.3d 917, 930 (6th Cir.2005) (internal quotation marks omitted). It may not weigh the evidence or make credibility judgments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). But, “[t]he mere- existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 341 (6th Cir.2006) (internal quotation marks omitted).
It would be “imprecise” to describe the summary judgment standard,. applied to an antitrust case, as “stringent.” Hyland v. HomeServs. of Am., Inc., 771 F.3d 310, 318 (6th Cir.2014). “[I]n defending against summary judgment, [Direct. Purchasers] need not ‘eliminate all possible independent justifications [offered] by [Defendants],’ so that ‘only evidence of concerted action would be left in the record.’ They need, rather, to produce ‘evidence that tends to exclude the possibility of independent action.’” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358 , 1365 (3d Cir.1992) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 , 768, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984)) (brackets and emphasis omitted). “[I]n this circuit, courts are generally reluctant to use summary judgment dispositions in antitrust actions due tó the critical role that intent and motive have in antitrust claims ánd the difficulty of proving conspiracy by means other than factual inference.” In re Se. Milk Antitrust Litig., 739. F.3d 262, 270 (6th Cir.2014) (internal quotation marks omitted).'
Not just any evidence will create a triable' issue, however. “[A] conspiracy may be demonstrated by direct or circumstantial evidence.” Re/Max Intern., Inc. v. Realty One, Inc., 173 F.3d 995 , 1009 (6th Cir.1999). Cf Monsanto, 465 U.S. at 768 , 104 S.Ct. 1464 . Distinctions in Direct Purchasers’ evidence of conspiracy are important.
Direct evidence of a- conspiracy is evidence that is “tantamount to an acknowledgment of guilt.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 662 (7th Cir.2002). Such evidence will generally preclude summary judgment. See In re Publication Paper Anti *976 trust Litig., 690 F.3d 51, 63-64 (2d Cir.2012) (collecting cases). Given the critical role of such evidence, this Court must carefully assess Direct Purchasers’ alleged “direct” evidence to ensure it fits the legal description for such evidence: it “must be evidence that is explicit and requires no inferences to establish the proposition or conclusion being asserted.” Hyland, 771 F.3d at 318 (citing In re Baby Food Antitrust Litig., 166 F.3d 112, 118 (3d Cir.1999)).
“[Everything else including ambiguous statements” is circumstantial evidence of conspiracy. In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 662 (emphasis omitted). “[Antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). An antitrust plaintiff must “present evidence that tends to exclude the possibility that the alleged conspirators acted independently ... [I]n other words, [an antitrust plaintiff] must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.” Id. (internal quotation marks omitted). The “tends to exclude” standard “simply represents an explication of th[e] requirement, [that inferences of conspiracy drawn from the evidence be “reasonable”]; it does not represent a new hurdle. In other words, evidence creates the requisite reasonable inference of conspiracy if it tends to exclude the possibility that the alleged conspirators acted independently.” Williamson Oil Co. v. Philip Morris, USA, 346 F.3d 1287, 1303 (11th Cir.2003) (internal quotation marks omitted). “[D]eterminations as to the reasonableness of the inferences "that c[an] be drawn from the evidence ... [are]-threshold legal determinations ... appropriately” made by a district court. Id. at 1304 .
Courts “have been cautious in accepting inferences from' circumstantial évidence in cases involving allegations of horizontal price-fixing among oligopolists” because the “theory of interdependence” in such markets holds that oligopolists may engage in parallel pricing behavior-even price at supracompetitive levels— without an express or tacit price-fixing agreement. In re Flat Glass Antitrust Litig., 385 F.3d 350, 358-59 (3d Cir.2004) (some internal quotation marks omitted) (collecting cases). Still, as the Sixth Circuit recently explained:
Evidence of “conscious parallelism” ... can support [a price-fixing] claim based upon circumstantial evidence. As the district court put it, “When competitors in a concentrated market establish their prices, not by agreement, but rather in a consciously parallel fashion, this may provide probative evidence of an understanding between competitors to fix prices.” However, that is not necessarily the case: Because of their mutual awareness, oligopolists’ decisions may be interdependent although arrived at independently. Thus, the law is settled that proof of consciously, parallel business behavior is ■ circumstantial evidence from which an agreement, tacit or express, can be inferred but that such evidence, without more, is insufficient unless the circumstances under which it occurred make the inference of rational, independent choice less attractive than that of concerted action.
This court has set out the following considerations, sometimes referred to as “plus factors,” in determining when circumstantial evidence amounts to a finding of concerted action: 1) whether defendants’ actions, if taken independently, would be contrary to their economic interests; 2) product uniformity; 3) whether the defendants have been uniform in their actions; 4) whether the *977 defendants have exchanged or have had the opportunity to exchange information relative to the alleged conspiracy; and 5) whether the defendants have a common motive to conspire or have engaged in a large number of communications. However, circumstantial evidence alone cannot support a finding of conspiracy when the evidence is equally consistent with independent conduct.
Hyland, 771 F.3d at 319-20 (internal citations and some quotation marks omitted).
The parties’ respective tasks at summary- judgment may also be affected by a related feature of antitrust law: “broader inferences are permitted [with respect to circumstantial evidence], and the ‘tends to exclude standard’ is more easily satisfied, when the conspiracy is economically sensible for the alleged conspirators to undertake and ‘the challenged activities could not reasonably be perceived as procompetitive.’” In re Publication Paper Antitrust Litig., 690 F.3d at 63 (quoting In re Flat Glass Antitrust Litig., 385 F.3d at 358 ). See also Matsushita Elec., 475 U.S. at 588-92 , 106 S.Ct. 1348 .
Generally, Direct Purchasers’ conspiracy theory is not “economically senseless.” Rather, “[t]he charge is of a garden-variety price-fixing conspiracy.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 661 . It makes “perfect sense” for Defendants to join with other dominant producers of slabstock and underlay to agree on the timing and amount of foam price increases. If successful, the conspiracy would allow each Defendant to enter customer-specific price negotiations with (at least) two powerful tools, to affect prices: (1) an assurance that all Defendants offered similar price increases; and (2) a higher announced price increase than would be produced if, in the absence of an agreement, each Defendant had independently crafted price increase letters. See Ezzo’s Investments, Inc. v. Royal Beauty Supply, Inc., 94 F.3d 1032, 1036 (6th Cir.1996).
As this Court applies these principles to Direct Purchasers’ evidence, it also must avoid certain “traps” common in antitrust summary judgment practice: it must reject Defendants’ invitations to weigh or credit evidence; it must hot “suppose that if no single item of evidence presented by the plaintiff points unequivocally to conspiracy, the evidence as a whole cannot defeat summary judgment”; and it must “distinguish between the existence of a conspiracy and its efficacy.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 655-56 . An antitrust plaintiff is entitled to the full force of its evidence, considered as a whole. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99 , 82 S.Ct. 1404 , 8 L.Ed.2d 777 (1962). An antitrust defendant is likewise entitled to a careful assessment of the evidence as it relates to that defendant. In re Vitamins Antitrust Litig., 320 F.Supp.2d 1, 19 (D.D.C.2004).
Sherman Act
Section 1 of the Sherman Act prohibits “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1 . Not all alleged restraints of trade are analyzed the same. “[W]hen a restraint is found to be proscribed per se, the plaintiff need only prove that (1) two or more entities engaged in a conspiracy, .■.: (2) to effect a restraint or combination prohibited per se ..., (3) that was the-proximate cause of the plaintiffs antitrust -injury.” Expert Masonry, Inc., 440 F.3d at 342 (internal citations omitted). Horizontal price-fixing conspiracies have long been deemed per se violations. See, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647 , 100 S.Ct. 1925 , 64 L.Ed.2d 580 (1980) (per curiam). Depending on the nature of the alleged *978 anticompetitive conduct, Calif. Dental Ass’n v. F.T.C., 526 U.S. 756, 770-71 , 119 S.Ct. 1604 , 143 L.Ed.2d 935 (1999), a restraint that is not a per se violation receives traditional rule-of-reason or quick-look treatment, Realcomp II, Ltd. v. F.T.C., 635 F.3d 815, 825 (6th Cir.2011),
“[Selection of a mode of [antitrust] analysis is entirely a question of law.” But “numerous factual questions,” like-the:.“terms of the allegedly anticom-petitive agreement,” underpin- that “purely legal decision.” In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d 728, 733-34 (8th Cir.2014) (internal quotation marks and brackets omitted). If, after drawing all reasonable inferences in Direct Purchasers’ favor, there is no triable issue on the conspiracy as alleged, a different analysis might apply. See Cont. Cablevision of Ohio, Inc. v. Am. Elec. Power Co., 715 F.2d 1115, 1118-19 (6th Cir.1983) (explaining that “the dissemination of price information is not itself a per se violation of the Sherman Act” and is permissible absent a “purpose or effect to restrain competition, or some other evidence of an actual agreement to restrain competition”) (quoting in part United States v. Citizens & S. Nat'l Bank, 422 U.S. 86, 113 , 95 S.Ct. 2099 , 45 L.Ed.2d 41 (1975)). First things first. This Court assesses the evidence of conspiracy to determine whether the record supports jury-triable horizontal-price-fixing claims.
Proof of Conspiracy
The parties agree that, as a general matter, a jury would apply the same principles of conspiracy law whether this case were a criminal prosecution or a civil proceeding (see, e.g., Doc. 1325-1 at 13 n. 5; Doc. 1343 at 60-65). Direct Purchasers must produce “direct or circumstantial • evidence that reasonably tends to prove that [Defendants] ... had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto, 465 U.S. at 768 , 104 S.Ct. 1464 . “To join a conspiracy ... is to join an agreement, rather than a group.” United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). “No formal agreement is necessary to constitute an unlawful conspiracy. ... The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in any exchange of words.' Where the circumstances are such as to warrant a jury in finding that the conspirators had a. unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.” Am. Tobacco Co. v. United States, 328 U.S. 781, 809-10 , 66 S.Ct. 1125 , 90 L.Ed. 1575 (1946) (internal citation omitted). Direct Purchasers must pose a jury question as to whether each Defendant knew of “the essential nature of the plan and their connection[] with it.” Blumenthal v. United States, 332 U.S. 539, 557 , 68 S.Ct. 248 , 92 L.Ed. 154 (1947).
A jury can infer agreement to join the conspiracy from a defendant’s actions. United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir.1990). But, “the importance of the [Defendant’s] connection [with the conspiracy] need not be great.” United States v. Betancourt, 838 F.2d 168, 174 (6th Cir.1988). “Once the existence of a conspiracy is shown, the evidence linking an individual defendant to that conspiracy need only be slight.” United States v. Pritchett, 749 F.3d 417, 431 (6th Cir.2014) (brackets and internal quotation marks omitted). If a plaintiff establishes a defendant’s membership in a conspiracy, withdrawal from the conspiracy is an affirmative defense. See United States v. Brown, 332 F.3d 363, 374 (6th Cir.2003).
*979 Direct Purchasers allege “one conspiracy to increase the prices of flexible foam,” a “conspiracy [that] included slab-stock and underlay” (Doc. 1348 at 132) (emphasis in original). “[A] single conspiracy is not converted into multiple conspiracies merely because there may be some changes in persons involved or because they play different roles.” United States v. Rugiero, 20 F.3d 1387, 1391 (6th Cir.1994). Nor does a single conspiracy fragment into multiple conspiracies because a member does not “know every other member” or “know of or become involved in all of the activities in furtherance of the conspiracy.” . United States v. Warner, 690 F.2d 545, 549 (6th Cir.1982).
Antitrust Injury
Direct Purchasers “must show more than a conspiracy in violation of the antitrust laws; they must show an injury to them resulting from the illegal conduct.” Matsushita Elec., 475 U.S. at 586 , 106 S.Ct. 1348 . Direct Purchasers must create genuine disputes of material fact regarding “injury-in-fact and proximate caus[ation].” They must make the same showing with respect to “[antitrust injury,” or “injury of the type the, antitrust laws were intended to prevent ... [and which] flows from that which makes defendants’ acts unlawful.” In re Cardizem CD Antitrust Litig., 332 F.3d 896, 909 (6th Cir.2003) (internal quotation marks omitted).
However, the thrust of Defendants’ antitrust-injury arguments is not that Direct Purchasers’ injury is not of a type the antitrust laws were intended to prevent. Rather, Defendants argüe that, even assuming the jury could reasonably find knowing participation in a conspiracy, Direct Purchasers fail to produce admissible (or common) proof of injury. As part of that argument, Defendants attack Direct Purchasers’ principal source of impact evidence, the expert testimony of Dr. Jeffrey Leitzinger. For the second time in this litigation, Defendants argue Leitzinger’s testimony is so unreliable that it should be excluded under - Federal Evidence Rule 702. Defendants similarly attack the testimony of Dr. Abba Krieger, a statistician retained by Direct Purchasers to comment on Leitzinger’s model. (Because Krieger’s testimony does not alter this Court’s decision on the Motions, this Court does not resolve the Daubert Motion'to the extent it targets Krieger.) ' This Court previously set'forth the standard for resolving a Rule 702 motion in its Memorandum Opinion and Order denying Defendants’ first motion to exclude Leitzinger’s testimony (see Doc. 1101 at 2-4).
Fraudulent Concealment
“Any action to enforce any cause of action under [the Clayton Act] .., shall be forever barred unless commenced within four years after the cause of action accrued,” 15 U.S.C. § 15b, measured from the date a plaintiff suffers injury, Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338 , 91 S.Ct. 795 , 28 L.Ed.2d 77 (1971). Section 15b therefore bars recovery for any antitrust claims that'accrued before December 2006, four years prior to the filing of the lawsuits later collected in the Consolidated Amended Class Action Complaint. But, the limitations period can be tolled if Direct Purchasers prove by a preponderance of the evidence that Defendants fraudulently concealed the basis for their claims. .
“To toll a limitations period on this basis, a plaintiff must show .(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the basis of [the plaintiffs] cause of action within the limitations period; -and (3) plaintiffs due diligence until discovery of the facts.” Hamilton County Bd. of Comm’rs v. NFL, 491 F.3d 310, 315 (6th Cir.2007) (internal quotation marks omit *980 ted). “[Affirmative concealment must be shown; mere silence or unwillingness to divulge wrongful activities is not sufficient.” Browning v. Levy, 283 F.3d 761, 770 (6th Cir.2002) (internal quotation marks omitted). Actions that would “deceive' a reasonably diligent plaintiff will toll the statute; but those plaintiffs who delay unreasonably in investigating circumstances that should put them on notice will be foreclosed from filing, once the statute has run.” Id. If a plaintiff has “[information sufficient to alert a reasonable person to the possibility of wrongdoing,” the plaintiff faces “a duty to inquire into the matter with due diligence.” Au Rustproofing Ctr., Inc. v. Gulf Oil Corp., 755 F.2d 1231, 1237 (6th Cir.1985). “[I]n evaluating the due-diligence element, the court should evaluate ... acts of active concealment as a factor in determining whether the plaintiffs investigation was reasonable under the circumstances.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 447 (6th Cir.2012). “Fraudulent concealment ... may be established through the acts of co-conspirators.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 538 (6th Cir.2008).
Discussion
Direct Purchasers’ Price-Fixing Theory
Direct Purchasers’ conspiracy theory is that Defendants and their co-conspirators communicated and reached agreements and understandings on the percentage amount and effective date of price increases for both slabstock and underlay. Periodic increases in the primary raw materials used to make flexible foam (polyols, TDI, and MDI — “chemicals”) served as a pretext for price coordination with respect to slabstock. Similarly, increases in the primary raw material used to make underlay (scrap foam) served as a pretext for price coordination with respect to underlay. Direct Purchasers argue Defendants generally coordinated and revealed price increases using price increase announcements (“PIAs”) that (1) -attributed the foam price increase to a recent or projected increase in chemicals or scrap pricing, (2) announced a flat percentage price increase for all foam products, for slabstock products, or for underlay products, and (3) identified the date on which the percentage price increase would become effective. Then, after releasing PIAs to customers, Defendants would exchange published PIAs during the “implementation period” — the time between the PIA’s publication date and the date on which the PIA stated the percentage price increase would take effect — as a means of verifying that coordination had taken place. Coordinated price increases provided Defendants a higher, unified starting point for the eus-tomer-by-customer price negotiations that followed release of a PIA than would have resulted if each Defendant independently set price increases (Doc. 1343 at 25, 33).
In response, all or some Defendants argue the following propositions:
• there is no evidence of an “express” or “global” and “overarching” agreement to coordinate the content and timing of PIAs, and any circumstantial evidence of communications between competitors or of market structure does not tend to exclude the possibility that Defendants acted independently in writing PIAs;
• the testimony of the Cooperating Defendants either does not implicate any Defendant or reflects only episodic, bilateral understandings between Defendants with respect to a few PIAs;
• Direct Purchasers posit that the flexible foam industry is oligopolistic in nature (or at least resembles an oli-gopolistic industry), with almost all costs of production concentrated (in *981 the case of slabstock) in chemical pricing or (in the case of underlay) scrap pricing and the cost of certain binding agents; . .
• any observed parallelism, in PIA terms is a natural, lawful feature of an oli-gopolistic industry, one in which price decisions depend on supply and demand factors, as well as strategic considerations of competitors’ likely pricing decisions;
• PIAs did not always (or even often) translate into increases in actual “transaction prices,” meaning the amount a particular customer would pay; . '
• because transaction prices are negotiated on a .customer-by-customer basis, it would be impossible for the members of the alleged price-fixing conspiracy to monitor transaction prices, rendering the alleged conspiracy implausible in the absence of any ability to detect cheating or enforce the terms of the agreement; . .
• Defendants intensely competed for foam business or otherwise acted in ways inconsistent with membership in a price-fixing conspiracy — some De- ■ fendants (like Flexible Foam) expanded their foothold in the.market, other Defendants (like Foamex — later FXI) lost market share, other Defendants (like Future Foam) played only small roles in certain segments of flexible foam industry throughout the Class Period, and still other Defendants (like Mohawk and Woodbridge) never produced or sold products that Direct Purchasers allege were part of the conspiracy.
In opposing summary judgment, Direct Purchasers point to several categories of evidence, which provide, the structure for this Court’s review of the summary judgment record:
1. Purported “direct evidence” of conspiracy;
2. Evidence of parallel business behavior;
3. Price ‘discussions between Defendants, which account for much of the volume of Direct Purchasers’ evidence, including: Defendants’ own e-mails and faxes; discussions between Defendants facilitated by scrap brokers; the testimony of employees of Canadian flexible foam producers who admit direct involvement in competition law violations affecting sales in the United States and (Direct Purchasers argue) implicate Defendants in the same conspiracy; and the guilty plea of Woodbridge Fabricating and two related non-defendant entities;
4. Claims that Defendants’ price discussions with one another ran counter to their independent economic interest’s;
5. Other “plus factors” evidence, in- .. eluding, market structure, opportunities Defendants had to conspire during the Class Period, and Defen- . dants’ motives to enter into a price-fixing conspiracy; and
6. Certain current and former Defendant employees’ Fifth Amendment invocations during depositions.
Direct Evidence of Conspiracy
Direct Purchasers assert (Doc. 1343 at 70): .
[T]here is overwhelming direct evidence of a conspiracy among Defendants and their co-conspirators to increase the prices of foam. There are numerous documents memorializing direct communications among executives of. Defendants-in furtherance of the conspiracy, as demonstrated by the Appendices.
*982 Defendants have admitted specific conspiratorial acts [including- Domfoam, Valle Foam, the Vitafoam Defendants, and Woodbride Fabricating].... Phone records included in these Appendices detail numerous calls among Defendants during price increase announcement periods, ' vario'us witnesses have testified that Defendants communicated with each other about prices, arid other witnesses 'have invoked their Fifth Amendment right in response to questions about this conspiracy.
However,- none- of this material is “direct evidence” of conspiracy as to the moving Defendants.
Direct Purchasers’ evidence of competitor communications and opportunities to communicate is (at best) circumstantial evidence of conspiracy (see, e.g., id. at 40) (discussing Doc. 1343-14 at 21, an e-mail in which a Flexible Foam salesman tells his Regional Vice President of Sales that the salesman has other competitors’ PIAs without explaining the provenance of such letters). When scrutinized closely (as this Court has done), the so-called Cooperating Defendant evidence reveals no admissions of guilt on the part of the Defendants who now move for summary judgment. See In re Publication Paper Antitrust Litig., 690 F.3d at 64 . Though Defendants sometimes recounted in e-mails the substance of phone calls with competitors, the dozens of call logs included in the summary judgment record simply show that, on a certain day and time, one senior Defendant employee called another. With no additional context, such evidence standing alone is as consistent with lawful conduct (e.g., a call to discuss purchase of a Defendant’s flexible foam plant) as it is with collusion (e.g., a call to discuss coordination of the next round of PIAs). Nor does a Defendant employee’s- Fifth Amendment- assertion lead, without any connecting inference, to the conclusion that the witness -or Defendant joined in an antitrust conspiracy (see Doc; 1343-at 65-66). Finally, this Court has • reviewed the 32-volUme Opposition Appendices. Direct evidence- of conspiracy does not hide there, either.
Except for ' Woodbridge Fabricating, each of the non-settling Defendants denies it engaged in any form of price-fixing, and Woodbridge' argues this lone guilty plea disproves Direct Purchasers’ theory. In sum, Direct Purchasers point to no specific “evidence that is explicit and requires no inferences to establish the ... conclusion” that any of these Defendants erigagéd in price-fixing. See Hyland, 771 F.3d at 318 (internal quótation marks omitted). This Court “must therefore analyze [Defendants’] motion[s] for summary judgment under the standards articulated” in Monsanto, Matsushita, and related cases. In-terVest, Inc. v. Bloomberg, L.P., 340 F.3d 144 , 163 (3d Cir.2003).
Parallel Pricing
Without direct evidence of agreement, Direct Purchasers’ claiiris depend on circumstantial evidence and á'theory of parallel pricing behavior resulting from coordination among competitors. Therefore, Direct Purchasers must show questions of fact that Defendants engaged in parallel business behavior. See Apex Oil Co., 822 F.2d 246 , 253 (2d Cir.1987). Defendants attempt to show th'ey did not price in parallel by emphasizing differences in PIA publication dates, effective dates, or announced percentage price increases (see, e.g., Doc. 1328-1 at 15-16). Direct Purchasers, on the other hand, assemble and compare Defendants’ PIAs on a quarterly basis (see, e.g., Doc. 1328-3 at 121-22). Direct Purchasers also note that Defendants-did not move in the alternative for partial summary judgment, claiming (for example) that a jury could not find a conspiracy-existed prior to.the 2005 Hurricane season.
*983 While a jury may find Defendants’ more discriminating review of PIA parallelism more persuasive than Direct Purchasers’ quarterly analysis, Direct Purchasers’ evidence creates questions of fact that Defendants priced ■ in parallel. The quarterly analysis reveals outliers in announced percentage price increases, and though all Defendants did not issue PIAs in each price-increase quarter^ the same analysis of pricing parallelism reveals substantial similarity in slábstock and underlay PIAs with respect to the non-settling Defendants (particularly in the later portions of the Class Period, when Defendants’ communications with each other became more frequent). In a significant number of quarters, all announcing Defendants issued identical or near identical price increases. And, Defendants do not point to any principle of antitrust law establishing that this substantial similarity in business behavior, standing alone, entitles them to judgment as a matter of law. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222 , 60 S.Ct. 811 , 84 L.Ed. 1129 (1940) (explaining that “price-fixing includes more than the mere establishment of uniform prices”); In re Currency Conversion Fee Antitrust Litig., 773 F.Supp.2d 351, 368 (S.D.N.Y.2011). Cf. Cason-Merenda v. Detroit Med. Ctr., 862 F.Supp.2d 603, 625-29 (E.D.Mich.2012).
Plus Factors
Price Discussions between Defendants.' Evidencé of communications between competitors can serve as circumstantial evidence of price-fixing. See, e.g., Apex Oil Co., 822 F.2d at 254; In re Plywood Antitrust Litig., 655 F.2d 627, 634 (5th Cir. Unit A 1981); Gainesville Util. Dep’t v. Fla. Power & Light Co., 573 F.2d 292, 301 (5th Cir.1978). But, “communications between competitors do not permit an inference of an agreement to fix prices unless those communications rise' to the level of an agreement, tacit or, otherwise.” In re Baby Food Antitrust Litig., 166 F.3d at 126 (internal quotation marks omitted). The range of inferences that can be drawn from evidence of competitor communications depends in part on whether drawing an inference of conspiracy would attach.antitrust liability to pro-competitive behavior. See In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 445 (9th Cir.1990) (hereafter “In re Petrol. Prods. Antitrust Litig.’’); Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1357 (9th Cir.1982). An exchange of price information “can- in certain circumstances increase economic efficiency and render markets more, rather than less, competitive.” United States v. U.S. Gypsum Co., 438 U.S. 422 , 443 n. 16, 98 S.Ct. 2864 , 57 L.Ed.2d 854 . (1978). Whether, such evidence (alone, or together with other evidence) tends, to exclude the possibility of independent, lawful action depends on:- (1) who communicated with.whom; (2) when those conversations occurred and the type of information exchanged; (3) how the exchanges occurred; and (4) the legitimate reasons that may be offered for exchanging the information.
When' a plaintiff charges that defendants fixed prices for their products, discussions about pricing' or market conditions between low-level salesmen who lack pricing authority is not probative of conspiracy. See In re Baby Food Antitrust Litig., 166 F.3d at 125-26 . Contrast that low-level chatter with the “far different situation where upper level executives [with pricing authority] have secret conversations-about price”; such discussions may support an inference of conspiracy. In re Flat Glass Antitrust Litig., 385 F.3d at 368-69 . Similarly, an exchange of information regarding completed - sales is less probative of an agreement to fix prices than an exchange of information regarding current or future pricing. Com *984 pare Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028 , 1034 (8th Cir.2000) (en banc) (discussion of completed sales), with In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 681 F.Supp.2d 141, 176 (D.Conn.2009) (discussion of future pricing decisions). A direct and secret price discussion between competitors is more probative of a conspiracy than are indirect and public communications, ostensibly undertaken by the conspiring competitors to “signal” to one another. Williamson Oil Co., 346 F.3d at 1306 (signaling evidence not capable of supporting inference of coordinated action).
Finally, context can be key in determining the range of inferences that a jury may draw from competitor communications. For example, as sometimes is the case in the foam industry, the communicating firms may wear two hats — they may compete in the sale of certain products, while at the same time carrying on a supplier-customer relationship or a joint venture with respect to other products. A defendant may then attempt to explain the communications as nothing more than a supplier and customer discussing the price .of a product that one hopes to sell to the other, or partners communicating about their joint venture business. In re Dairy Farmers of Am., Inc., Cheese Antitrust Litig., 60 F.Supp.3d 914, 957-58 (N.D.Ill.2014). In other words, context matters.
Who is Talking Price with Whom. This Court has reviewed the more than seven thousand pages of e-mail and fax correspondence Direct Purchasers submitted in opposition to summary judgment. Though careful not to confuse quantity of evidence with quality of evidence, this extensive summary judgment record reveals a fairly dense web of communications between high-level competitor employees,' almost all of who had pricing authority for the foam product that was the subject of discussions.
The record reveals the price discussions themselves, as memorialized in e-mails and faxes between Defendants and their co-conspirators, and documents and deposition testimony recounting the nature of these discussions (see, e.g., Doc. 1343-50 at 42) (Don Coleman of Hickory Springs passing along to his senior staff details of price discussions with Bob Magee of Woodbridge). When such discussions occurred, they generally saw one Defendant pass to another (including through conduits) draft or published PIAs, or Defendants discuss impending or recent price increases without also exchanging PIAs. This Court notes a sampling of these eom-petitor-to-competitor discussions about pricing in an Appendix to this Memorandum Opinion and Order. These discussions tend to cluster around periods in which PIAs were issued.
Mostly, Defendants exchanged “published PIAs,” or PIAs that bore a date on or before the date of the competitor-to-competitor communication. However, in a significant number of instances Defendants exchanged “draft PIAs,” which can be identified in several ways. First, the Defendant employee would inform his counterpart that the PIA was “draft,” “proposed,” had not been sent to customers, or would be sent to customers on a particular date. Second, the Defendant employee would share a PIA that bore a date after the date of the e-mail or fax exchange (a jury could reasonably infer that a Defendant would not have sent a PIA dated January 3, 2015 to a customer on January 1, before sending the same PIA to a competitor Defendant on January 2). Third, the Defendant employee would share a PIA in a form that would not likely have first been sent to customers (e.g., a red-lined PIA).
*985 These record exchanges occurred between Defendants’ most senior employees. To name just a few of each Defendant: Flexible Foam’s Chief Operating Officer (Rich Whitling) and its Vice Presidents of Sales and Marketing (Jeff Briney and Mike Crowell) joined in the conversations. So did Future Foam employees with pricing authority, including the company’s Director of Operations for Carpet Cushion (Marc Vitale) and a Regional Manager (Á1 Diamond). Hickory Springs’ President (Don Coleman), its Corporate Director of Administration (Don Simpson), its Eastern Division Vice President (Buster Mann, responsible for most pricing decisions in that region), and the lead Hickory Springs employee at the Olympic Products joint venture (Todd Councilman, Flat Block Business Director) also took part. Mohawk’s President, Jack Lens, was a repeated party to e-mails with competitor employees and scrap brokers. And almost all of Woodbridge’s brass — its President (Robert Magee), its Vice President (Frank Dona-to), and its lead slabstock employee (Peter Farah) — engaged in extensive communications with competitors.
When these senior employees spoke with one another, they exchanged what a jury could conclude is sensitive business information-draft PIAs, published PIAs (of which there are more instances of direct competitor exchanges not cited above), and performance on past price increases. On a number of occasions, a senior employee of one company would notify his counterpart at a competing firm that salesmen of the competing firm had been quoting “low” prices. More often than not, the senior competitor employee would state or imply that he would “check into” the prices being quoted by his salesmen. Similarly, competitors would speak with one another in ways inconsistent with vigorous competition — for example, Jack Lens asked scrap broker David Charak to send word to Leg-gett & Platt that it ought not go forward with a price increase because Mohawk had backed off the same increase (Doc. 1343-35 at 420). At the time, Leggett & Platt and Mohawk were competitors in the underlay market, and one might ask; why Jack Lens -did not prefer to rescind his price increase, allow Leggett & Platt to go forward with its own, and-win business for Mohawk from former Leggett & Platt customers. Other Defendants communicated directly regarding “market rationalization” (Woodbridge and Hickory Springs), “cooperation?’ and the goal of avoiding “fighting” in the context of concerns about price wars (Woodbridge and Vitafoam -USA), and “[pjossible customer conflicts and how to avoid them” (Flexible Foam and Wood-bridge).
This Court must consider the range' of inferences that can be drawn from competitor-to-competitor correspondence on an individual basis. Considered individually, some of the evidence Direct Purchasers rely on is just as consistent with lawful conduct as it is with conspiracy (sometimes, less so). For example, an exchange between Fred Rullo of Foamex and Randall Lake of Future Foam does not support an inference of conspiracy, because the exchange occurred in the context of a vendor' (Foamex) and customer (Future Foam) relationship (Future Foam could not produce rolls at a California plant, so it purchased rolls from Foamex) (Doc. 1343-14 at 140; Doc. 1354-5 at 3). Likewise, the April 2008 exchange between Jack Lens of Mohawk and Marc Vitale -of Future Foam, in which Lens promises to retaliate for Mohawk business lost to Future Foam, speaks of competition as much as Lens’ references to the “irresponsible” approach- of price-based competition suggests collusion. And some of the exchanges between Hickory Springs and Woodbridge employees through or including employees of the two firms’ joint venture, Olympic Products, lack strong *986 probative value. Some of these exchanges relate to the joint venture’s pricing decisions. Other such exchanges are ambiguous as to whether Hickory Springs and Woodbridge employees exchanged infoi-mation on the pricing decisions of their separate and competing foam product lines, or instead discussed joint venture pricing. Joint venture pricing for nonautomotive slabstock foam was set by Hickory Springs employees, while joint venture pricing for automotive slabstock foam was set by Woodbridge employees. However, a jury could find that many more Defendant communications lack such innocuous context..
Admissions by Certain Defendants. This Court must not tightly compartmentalize the evidence , and ignore the context •created for these price discussions. Important here is the evidence of the Cooperating Defendants,, Defendants argue such evidence reveals only a geographically distinct conspiracy. Not so. In part, the Cooperating Defendants provide further evidence of direct competitor pricing discussions involving Defendants, some of which are not memorialized in the substantial documentary record (see, e.g., Doc. 1343-55 at 345-46 (Mike Crowell of Flexible'Foam speaking with Frank Donato of Vitafoam Canada); Doc. 1343-55 at 810-11 (Bruce Schneider, President of Future Foam, speaking-with Peter Farah, President of Vitafoam Canada); Doc. 1343-54 at 337 (David Gurley of Vitafoam Canada speaking with and Jeff Carter of Scott-del — and later Future Foam). The Cooperating Defendants also explain the role played by price discussions in the price-fixing-conspiracies in which they admittedly participated and the terms of those agreements.
The Vitafoam- Defendants are Antitrust, Criminal Penalty Enhancement and Reform Act applicants and conditional beneficiaries of the Department of Justice’s (“DOJ”) Corporate Leniency Program for admitted antitrust violators. The record contains deposition testimony of two different Vitafoam -Rule 80(b)(6) witnesses who are also attorneys: the Foam deponent, who testified in this litigation, and the Urethanes deponent, who testified in a suit alleging price-fixing by chemical suppliers in which some Defendants have taken on the role of direct action (non-class) plaintiffs. See In re Urethanes Antitrust Litig., MDL No. 1616 (D.Kan.).
The Foam deponent denied there was a “global, overarching agreement” (Doc. 1343-55 at 821). He could not. state -that every PIA issued during the -Class. Period was coordinated between Defendants (id. at 822). He declined examining counsels’ invitations to characterize Vitafoam’s interactions with other Defendant employees as having resulted in “agreements,” “I’m not going to comment on what is and what is not an agreement throughout this [deposition],” he explained, “because agreement takes two and I can’t tell' you what the other side [i.e., the other Defendant’s employee] was thinking” (id. at 821). See also id.' at 830 (“I agree that [whether discussions resulted in an “agreement”] is a legal conclusion because, you know, I’ve told you that I am an antitrust lawyer, and agreement is a loaded word.”).
So the Foam deponent would not unequivocally state that the all-Defendants, all-products, all-PIAs conspiracy functioned in the United States. More generally, however, Vitafoam did admit to conspiring with North American foam manufacturers, including with respect to the price of foam.that would be sold in the United States (id. at 854, 883). The Foam deponent explained the nature of this collusion: “[R]ather than-having one agreement, an agreement, there were a series, of events, discussions,- that took place in or around price increase periods, *987 when a price increase was in the market” (id. at 821). (emphasis added). “[T]he whole idea was to communicate so you would not be surprised, which means that you would not go out at 10 percent and your competitors wouldn’t and you’d — and you’d lose business” (id. at 844). When “Vitaffoam] Canada” was surprised “they lost business” (id.) “[T]here are letters that went out at a rate, a specific rate and a specific time because of the communication with competitors” (id.). In certain instances, “Vitafoam spoke to competitors for the purpose of getting a price increase and having it stick” (id. at 891).
Vitafoam’s description of price discussions between competitors is mirrored in the evidence offered by the other Cooperating Defendants, various employees of the Canadian foam producers Domfoam and Valle Foam. In January 2012, a represén-tative of the two firms signed a “Statement of Admissions,” filed in an Ontario, Canada court alongside an indictment and sentencing document. The filings related to- Dom-foam and Valle Foam‘s admitted violations of the Canadian Competition Act, which netted-the firms a $12,5 million (CAD) criminal fine (Doc. 1343-2 at 17).
Valle Foam is a wholly owned subsidiary of Domfoam (id. at 20). The companies produce slabstock and underlay (id. at 21). With respect to each product segment, the companies admitted (id. at 22 (admission with respect to slabstock)); ’ id. at 24 (admission with respect to underlay):
For the purpose of forming and carrying out the alleged ■ conspiracy, Dom-foam/Valle, Carpenter [Canada], Vita[foam Canada] and Foamex [Canada] established a practice whereby the members of the alleged cartel would communicate about the amount and effective date, of price increases in the sale and supply of ... [foam] products in Canada. They would agree to use the same or similar effective dates and the same or similar price increase ranges, which had the overall, effect of unduly lessening competition in Canada. The information regarding the price- increase percentages and effective dates would be included in the price increase letters sent to customers and would constitute a price baseline, which would be used as a starting point for customer negotiations.
Coordination of slabstock PIAs would follow increases in raw chemical pricing, while coordination of underlay PIAs would follow increases in scrap ifoam pricing (id. at 22, 24), , The Statement of Admissions recites conduct that affected only Canada, and describes agreements or understandings only among Canadian firms.
But, viewed in the context of other record evidence and in the light most favorable to Direct Purchasers, no barrier running from Washington to Maine sealed off Canadian foam manufacturers from their American counterparts. ‘For "instance, Valle Foam and Domfoam sold flexible foam in the northeastern United States (Doc. 584-11 at 11). Sales in the United States amounted to rdughly 15 percent of the firm’s total sales during the Class Period,' the same period described in the Statement of Admissions (Doc. 584-15 at 35). Vitafoam Canada’s United States sales also averaged 15 percent of its gross revenues each year (Doc. 1343-55 at 833). All Cooperating Defendants would announce the same price increases for both Canadian and U.S. sales (excepting differences in pricing attributable to exchange rates) at approximately the same time (id. at 834; Doc. 584-15. at 37), and purchased chemicals. from the same set; of American chemical manufacturers as did Defendants. And, as noted above, Cooperating Defendant employees occasionally engaged in price discussions with Defendant employees like Ken Hlaudin of Flexible Foam or *988 Frank Donato of Woodbridge (and later, Vitafoam Canada).
John Howard,- Domfoam’s General Manager in Quebec, played a role in setting the firm’s flexible foam pricing (Doc. 584-11 at 11). He admitted in a declaration that “since 1996, I am personally aware and testify that I and competitors in the foam industry communicated from time to time ,.. to coordinate the percentage amount and timing of price increases for foam,” a practice that helped the industry “push through a price increase to customers (id. at 14-15). Competitors would also exchange PIAs “to demonstrate to each other that the industry was increasing its prices by a certain amount and at a certain time” (id. at 18). Such coordination “was the accepted way of doing business in the polyurethane foam industry at that time” (id. at 15). He lists competitors’ employees with whom he coordinated PIAs, but all the named employees worked for Canadian foam producers (Howard’s listing does include Vitafoam Canada employees, who, in turn, had price discussions with Defendant employees as described in the Appendix). See also Doc. 584-9 at 5-16 (declaration of Dean Brayiannis, one-time Director of Sales and Marketing for Valle Foam, relating similar information about his communications with Canadian foam manufacturers regarding the timing and amount of flexible foam PIAs). Howard explained how conspiratorial discussions occurred, an explanation that mirrors the Foam deponent description (Doc. 1343-54 at 596):
Meetings weren’t held by all the foam-ers saying, ‘Okay. Now it is time. We’ve got to put letters out.’ But on an informal basis, ‘I’m raising prices, and its going to be on this date and this percent. And here’s evidence of what I’m going to do.’ And I’ll fax a letter over to Mike Calderone [at Foamex Canada] or I’ll receive one from somebody else. So that’s as sophisticated as we got in assuring that everyone was on the same page in terms of getting prices up when there was a chemical price increase.
Tony Vallecoccia, President and CEO of the two companies, claimed he would “bless” proposed flexible foam price increases that he knew his subordinates had proposed after coordinating with competitors, and that he and his competitors had “understandings” as to how Canadian flexible foam producers would respond to raw chemical price increases (Doc. 584-15 at 37, 39). But he also testified that there was “[n]o agreement with anybody” regarding his companies’ pricing decisions in the aftermath of raw chemicals or scrap foam price increases (Doc. 1328-53 at 3-4).
Finally, though not among the Cooperating Defendants, a jury could conclude that Woodbridge Fabricating’s admissions to criminal violations of the Sherman Act further confirm the nature and purpose of price discussions between Defendants and the terms of the agreement. In Summer 2014, Woodbridge Fabricating pled to an information that charged the firm with having “participated in conversations and meetings to discuss polyurethane flexible slab stock automotive foam prices”; “agreed, during those conversations and meetings, to coordinate the timing and amount of price increases for polyurethane flexible slab stock automotive foam in the United States and elsewhere”; “exchanged information during those conversations and meetings, for the purpose of monitoring and enforcing adherence to the agreement to coordinate the-timing and amount of price increases for polyurethane flexible slab stock automotive foam”; and that in fact it “coordinated the timing and amount of price increases for polyurethane flexible slabstock automotive foam customers” (Doc. 1343-2 at 30-31). See also id. at 36-37. The coordination related to PIAs with effective dates of July 2008 and August *989 2008 (Doc. 1328-76 at 21). Though not named in the plea agreement, Defendants concede that Foamex conspired with Woodbridge Fabricating on at least two PIAs {see, e.g., Doc. 1329-1 at 18 (Wood-bridge acknowledging that certain identical Foamex and Woodbridge PIAs were “encompassed in [Woodbridge Fabricating] pleas”); Doc. 1343-43 at 221).
Of course, all of this evidence has its limitations. Valle Foam and Domfoam deny having had price discussions with the employees of U.S. foam producers (a claim in tension with record evidence). Vita-foam employees never carried on price discussions with Mohawk employees. And each Defendant did not-communicate with the employees of every other Defendant or with each Cooperating Defendant (though the overlap in communications is substantial). . However, even accounting for these and other evidentiary shortcomings, it would be error for this Court to “suppose that if no single item of evidence presented by the plaintiff points unequivocally to conspiracy, the evidence as a whole cannot defeat summary judgment.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 655 . All of this evidence provides context for understanding the conclusions a reasonable jury could draw from Defendants’ price discussions. These communications: occurred during price increase periods, in private, and sometimes (as described below) were eoúpled with affirmative attempts to keep the fact 'of the communications secret; joined Defendants’ most senior ' employees in conversations about’price; display a level of repetition and structure distinguishing the conversations from random chats between competitors; involve the exchange of future pricing information and price increases that had been published to customers but not yet implemented; match the communication patterns described by the Cooperating Defendants and Woodbridge Fabricating, each to some extent admitted price fixers; and expressly caused Defendants to modify pricing decisions. “The inference of concerted rather than interdependent action is therefore stronger.” In re Flat Glass Antitrust Litig., 385 F.3d at 369 .
Actions against Self-Interest. In this cáse, Defendants’ communications serve as. a plus factor, which tends to exclude independent conduct. A related plus factor, actions against self-interest, requires “a showing’’that the defendants’ behavior would not be reasonable or explicable (i.e.[,] not in their legitimate economic self-interest) if they were not conspiring to fix prices or otherwise restrain trade— that is, that the defendants would not have acted as they did had they not been conspiring in restraint of trade.” City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548 , 572 (11th Cir.1998). “Ordinarily, an affirmative answer to [this plus factor] will consistently tend to exclude the likelihood of independent conduct.” Re/Max Int’l, Inc., 173 F.3d at 1009. However, this Court “must exercise prudence in labeling a given action as being contrary to the .actor’s economic interests, lest [it] be too quick to, second-guess well-intentioned business judgments of all kinds.” So, “if a benign explanation for the action is equally or more plausible than a collusive explanation, the action cannot constitute a plus factor.” Williamson Oil Co., 346 F.3d at 1310 . See also In re Citric Acid Litig., 191 F.3d 1090, 1100 (9th Cir.1999).
Direct Purchasers’ focus with this plus factor is not paralléí pricing, market behavior which may simply reflect interdependence. See, e.g., In re Flat Glass Antitrust Litig., 385 F.3d at 360 -61 Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 , 1244 (3d Cir.1993). Instead, Direct Purchasers emphasize Defendants’ mutual, usually direct, exchange of sensitive business information. *990 Absent an express or tacit agreement to coordinate pricing, Direct Purchasers argue it was “risky [for Defendants to privately exchange such information] because their prices could be undercut but-for an understanding to use the information to coordinate rather than to compete” (Doc. 1343 at 73). ' Defendants’ “benign” explanations either lack support in the record or depend on disputed questions of fact.
First, Defendants argue that direct and private communications between competitors made market prices more transparent. Citing fundamental economic principles, Defendants note “[a]ll market participants benefit from full information in the market.” Moré, such information disseminated broadly “enhances competition and makes the market more competitive” (Doc. 1467 at 16). Direct Purchasers do not quarrel with this rule of economics; they instead argue that (at minimum) the evidence'creates fact questions as to whether Defendants’ competitor communications were undertaken with either the purpose or effect of improving price transparency for market participants. Direct Purchasers say the competitor communications were aimed at improving1 Defendants’ knowledge of each other’s pricing strategies prior to when price increases were announced, and then again before the price increases were implemented, so that Defendants could push chemical price increases through to consumers and presérve (or increase) margins in a period of. rising costs, industry overcapacity, massive economic recession, and substantial declines in demand for flexible foam. Evidence supports this competing view. See Gray v. Shell Oil Co,, 469 F.2d 742, 747 (9th Cir.1972); Cf. United States v. Coop. Theatres of Ohio, Inc., 845 F.2d 1367, 1373 (6th Cir.1988).
Second, certain Defendants argue that their price discussions were not aimed at the “downstream” purpose of cooperative-' ly increasing or maintaining margins. Instead, Defendants exchanged price information to gain leverage “upstream” in negotiations with chemical firms.- This supposed justification made its first appearance at oral argument. And, aside from a single reference to a discussion between Mike Crowell of Flexible Foam and Frank Donato of Vitafoam Canada (a discussion referenced in the U.S. search warrant and affidavit) (Doc. 1467 at -29), the “upstream” justification lacks eviden-tiary support. Moreover, one party to this “upstream’'’ conversation, Donato, has refused to testify in' this matter, invoking his Fifth Amendment privilege against self-incrimination. He also figures prominently in Woodbridge and Vitafoam Canada’s price discussions with competitors (see, e.g., Doc. 1343-14 at 114) (Donato to Peter Farah, both then of Woodbridge: “Don’t know what' we ’ should do. Dan wants me to call” Don Phillips of Foa-mex. ‘Will try first thing in the morning. I think we should go strong and tr[y] to keep Vita and [Fodmex] on board. Forget share for now — fix pricing”).
Third, Defendants argue that the information they shared was all “public information” because it had already been shared with customers before Defendants shared the same information with one another. However, many of the specific communications noted in the Appendix indicate that oral announcements of planned price increases to customers did not precede Defendants’ pre-publication sharing of price increase information with one another (and, at the least, this argument raises disputed questions of fact). At most, this approach of advance oral notice creates questions of fact as to whether, (for example) a Mohawk employee had called customers to provide a “heads-up” about an impending April 2006 underlay price in *991 crease before Jack Lens, Mohawk’s President, e-mailed a copy of a, draft PIA to scrap broker David Charak, who then forwarded the draft PIA to senior underlay employees at Leggett & Platt, Future Foam, Flexible Foam, and Carpenter (see Doe. 1343-15 at 34; Doc. 1343-36 at 225, 234-41). Similar fact questions abound in the record.
Relatedly, Defendants contend they obtained, competitor pricing information from customers. This may be true in some cases (see, e.g., Doc. 1321-18). In other cases — for . example, competitor PIAs found in a Defendant’s files with no paper trail showing receipt of the letter from another Defendant or a customer — receipt of a competitor PIA from a customer is at least as possible as receipt from a Defendant. See In re Citric Acid Litig., 191 F.3d at 1103 . But the record contains dozens of direct communications between Defendants or through conduits like the scrap brokers, in which pricing information was shared during the pre-announcement and implementation periods (not an overwhelming number of such discussions, to be sure, but still substantial evidence considering Direct Purchasers focus on coordination with respect to some two. dozen price increase periods and not with respect to the • many individual foam sales • that occurred throughout the Class Period). And there are factual disputes regarding whether and under what circumstances a customer would be willing to share a PIA with a Defendant, and if Defendants would even consider information received from customers to be a trustworthy basis for setting pricing policy.
Taken for what they are — the private exchange of sensitive business information between senior competitor employees with pricing authority — a reasonable jury could conclude that, had Defendants approached the task of PIA drafting independently, they would not have shared such information. See In re Currency Conversion Fee Antitrust Litig., 2012 WL 401113 , at **5-6, 2012 U.S. Dist. LEXIS 19760 , at **16-18 (S.D.N.Y.2012). PIA percentage price, increases and effective dates mattered for Defendants. Attempts to now downplay the significance of - PIAs — because PIAs did not always (or even often) lead to quarter-over-quarter increases in .transaction prices — stand in conflict with the' im~ portance placed on the terms of PIAs during the Class Period as a means of moving pricing. For example, intrafirm communications- show Defendant employees carefully deliberating over the amount and timing of proposed price increases (see, e.g., Doc. .1343-14 at ,100; Doe.' 1343-20 at 4 (FXI employee questioning PIA terms proposed by a colleague: “Why 10%? and not 12% for buns, rolls, toppers and 10% for Fab? If both TDI and Polyol are going up 10%-7.2% increase needed, to breakeven. . This [ie., the lower proposed price increase levels on buns, rolls, toppers,, and fabricated foam] leaves very little margin for any carve outs? I would target a higher increase considering the challenges we would face [during customer-by-customer negotiations] with the big guys”); Doc. 1343-55 at 759-60; but see Doc. 1328-21 at 177) (defense expert report opining that PIAs contained only “meaningless effective dates for meaningless [proposed] price increases”).
A jury could reasonably conclude that Defendants shared such information with each other because there existed a common understanding of how the information .would be used — not to compete, but to collude. And a jury can draw that inference without “threatening] to chill pro-competitive behavior.” Petruzzi’s IGA Supermarkets, Inc., 998 F.2d at 1232. No one disputes that the signaling of price increases to customers . through . PIAs serves a legitimate market function. Cf. Reserve Supply Corp. v. Owens-Corning *992 Fiberglas Corp., 971 F.2d 37, 53 (7th Cir.1992). Nor does any party dispute that a flexible foam producer may gather competitive intelligence through legitimate channels. The factual disputes that prevent this Court from granting judgment as a matter of law in Defendants’ favor do not turn on the source of price information in ambiguous circumstances — whether customers or competitors. Instead, the evidence' shows direct exchanges of such-information and related discussions sufficient to deny summary judgment.
Market Structure; Opportunities and Motives to Conspire; Fifth Amendment Privilege. Direct Purchasers offer a range of other plus-factors evidence, which they argue tends to exclude the possibility of independent conduct. These additional plus factors include:
• Market structure evidence showing slabstock and underlay markets are • susceptible to collusion. According to this evidence, Defendants treat large portions of both products as commodities which lack close substitutes. There also is evidence of substantial entry barriers in the slabstock market and (to a lesser degree) the underlay market. Defendants’ market share calculations indicate moderate market concentration. And throughout the Class Period, Defendants maintained substantial excess production capacity.
• Defendants had opportunities to conspire, as shown by at least four categories of evidence. First, certain Defendants were members of flexible foam industry trade associations (e.g., the Polyurethane Foam Association and the Carpet ■ Cushion Council), as well as trade associations chiefly comprised of the intermediate users of flexible foam products (e.g., the International Sleep Products Association). Second, certain Defendant employees exchanged telephone calls throughout the class-period. The fact that such - conversations occurred is evidenced by telephone call logs and telephone service provider billing statements; the record typically does not reveal the subject matter of such - calls. Third, Defendant einployees would mingle during outings-sponsored by chemical manufacturers and customers (e.p., ski trips and golf tournaments). Fourth, Defendants regularly communicated with each other while carrying on supplier-customer relationships, discussing' the sale of foam production plants or equipment, while operating joint ventures with other Defendants, and during sales calls on shared customers. • Defendants each had a motive to enter into a price-fixing conspiracy.
At most, equally strong inferences of conspiracy and independent conduct can be drawn from each of these categories of evidence. Standing alone, they do not defeat summary judgment, but they contribute to Direct -Purchasers’ circumstantial case. Direct Purchasers’ market-structure evidence “no more than corroborate[s]” that both the slabstock and underlay markets are or approximate “an oligopolistic market which is ... conducive to parallel pricing. The evidence does nothing to explain whether the parallel pricing was achieved by agreement or mere interdependent decisions.” White v. R.M. Packer Co., Inc., 635 F.3d 571, 580 (1st Cir.2011). Likewise, “[ejvidence that the'defendant had a motive to enter into a price fixing conspiracy means evidence that the industry is conducive to oligopolistic price fixing,-either interdependently or through a more express form of collusion.” In re Flat Glass Antitrust Litig., 385 F.3d at 360 . It is hard to imagine a horizontal price-fixing case in which a defendant would not have a desire to earn supracom-petitive profits, which of course can be *993 gained from unlawful collusion or from lawful parallel pricing. So, too, with the opportunities-to-conspire evidence, to the extent it is not coupled with other evidence describing topics discussed by competitor employees. In re Baby Food Antitrust Litig., 166 F.3d at 133 .
Direct Purchasers also argue that the Fifth Amendment privilege assertions of Defendant employees made during depositions in this matter additionally support the denial of summary judgment (Doc. 1343 at 32-33, 65-66). The Fifth Amendment “privileges [an individual] not to answer questions put- to [the individual] in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate [the witness] in future criminal proceedings.” In re Morganroth, 718 F.2d 161, 165 (6th Cir.1983). But “the prevailing rule [is], that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]” Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976). See also Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir.2005). The same negative inference can, in certain circumstances, be offered against an invoking witness’s current or former employer. See, e.g., Coquina Inv. v. TD Bank, N.A., 760 F.3d 1300, 1311 (11th Cir.2014); Cerro Gordo Charity v. Fireman’s Fund Am. Life Ins., 819 F.2d 1471 , 1481 (8th Cir.1987). This Court doubts a negative inference could be drawn against a firm that is an alleged co-conspirator of the invoking witness’s employer. See In re High Fructose Corn Syrup Antitrust Litig., 295 F,3d at 664.
Regardless of the invoking individual’s employment status, “the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” LiButti v. United States, 107 F.3d 110, 124 (2d Cir.1997). “In most circumstances silence is so ambiguous that it is of little probative force.... Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than, not to dispute an untrue accusation.” United States v. Hale, 422 U.S. 171, 176 , 95 S.Ct. 2133 , 45 L.Ed.2d 99 (1975).
Because other record evidence poses a jury question of whether Defendants had a conscious commitment to a common scheme of PIA coordination, this Court need not rely on privilege evidence.
A Jury Could Reasonably Conclude Each Defendant joined in the Conspiracy
Direct Purchasers present substantial evidence of senior Defendant employees engaging in price discussions, sometimes providing one another advance notice of PIAs, sometimes sharing PIA information during the implementation period when a proposed price increase was being tested in the market, and sometimes discussing the progress of past PIAs (including questioning each other about whether they or lower level employees effectively were undermining price increases by quoting “low” prices). Direct Purchasers produced evidence of three Canadian firms (and of another firm, Vitafoam USA, which produced and sold flexible foam in the United States until 2006) that. admitted participation in a North American price-, fixing conspiracy. Through declarations, depositions and court filings, the admitted conspirators explain how that conspiracy functioned. They also identify specific Defendant employees with whom they discussed pricing. One Defendant, Wood-bridge Fabricating, entered a limited guilty plea in federal district court to violations of the Sherman Act. Woodbridge em *994 ployees located in Canada had extensive discussions with Canadian and U.S.-based flexible foam producers throughout the Class Period.
Direct Purchasers have further shown that, absent a tacit or express agreement to coordinate PIAs, such price discussions ran counter to Defendants’ independent economic interests. And Direct Purchasers have created a jury question as to whether these price discussions served a pro-competitive purpose, or were aimed at cooperatively pushing through cost increases to customers. “[W]hen viewed in conjunction with the parallel conduct” — a significant number of financial quarters in which many Defendants issued the same or similar PIAs — such evidence “would permit a fact-finder to infer a conspiracy.” In re Publication Paper Antitrust Litig., 690 F.3d at 62 . “Permit,” not “require.”
But Defendants raise a series of arguments, all of which assert that despite the evidence noted above,' no reasonable jury could infer a conspiracy oí a particular Defendant’s involvement in a conspiracy (assuming dne could be proven). Some of these arguments are common to all Defendants, whilé others arise from features unique to a particular Defendant;
Evidence of Competition. Defendants argue the summary judgment record contains overwhelming evidence of competition at the transactional level — that is, in the prices negotiated with éach customer. Take' Flexible Foam, for example, which prides itself on being a “pricing maverick” which expanded its production - capacity and geographic reach over the Class Period. On several occasions, Flexible-Foam erected new plants in areas where it did not have a significant number of customers (or any customers at all). Flexible Foam had no guarantee that the substantial investment to build these plants would pay off with new sales volume. Flexible Foam (and other Defendants) therefore argue that because such vigorous competition existed -“[t]he; facts in .their totality demonstrate that any degree of parallelism ... was prompted by-[a Defendant’s] self-interest[] to remain competitive 1 in the face of rising costs,” not an agreement to coordinate PIA amounts and effective dates (Doc. 1321 at 24). See also Doc. 1322-1 at 12-17.
But this Court may not weigh the evidence at summary judgment, and it cannot ignore- -(for -example) the fact that Mike Crowell planned to discuss with Frank Do-nato of Woodbridge — who appears in more price discussions than perhaps any other person during the Class1 Period — how the two might avoid- customer conflicts, or Richard1 Whitting’s frequent1 exchanges with the scrap brokers (along with strong circumstantial evidence of the role played by scrap1 brokers in facilitating coordination), or Whitting’s relationship with Bus Culotta of Leggett & Platt.
After all, Flexible Foam and other Defendants do' not argue in the alternative that they did not conspire during earlier portions of the Class Period, during which evidence of coordination is comparatively thin. Nor do ¿hey argue in the alternative that they did not conspire with respect to slabstock, for which there is less evidence than activity related to underlay. “Their defense is that tliey didn’t do it[,]” with respect to any PIA or any product (Doc. 1467 at 71). .
Finally, while the competition evidence may suggest cheating on the agreement that fact would be relevant 1 to the extent of antitrust injury (if any). The Sherman Act proscribes effectiye as well as ineffective price-fixing conspiracies. See United States v. Hayter Oil Co. of Greeneville, Tenn., 51 F.3d 1265, 1273-74 (6th Cir.1995). And, there is evidence that when such alleged cheating came to the attention of senior Defendant employees, *995 they would complain to counterparts at the low-ball pricing firm, using language that sharply departs from the language of competition (Doc. 1343-41 at 151).
Price “Leaders” and Price “Followers.” Smaller market participants like Future Foam and Hickory Springs argue market dynamics (including the fact that all Defendants faced similar chemicals and scrap cost shocks) compelléd them to follow price increases initiated by larger Defendants. Had they preceded -larger Defendants in announcing a price increase, Future Foam and Hickory Springs’ higher pricing would not sway the market price in the way a Foamex, Carpenter, or Flexible Foam PIA might. Small Defendants who jump the gun would thus lose market share. On the other hand, if 9. small Defendant elected not to follow (or to follow soon enough), a larger . Defendants’ , price increase in a period of rising costs, the smaller Defendant would be left with narrowing margins and, eventually, the need to recoup rising costs on its own, without larger Defendants leading the price increase. “Thus, the evidence demonstrates that Future Foam [and Hickory Springs], ... relatively small polyurethane foam and rebond carpet cushion' products manufacturer^], acted rationally and as expected by following the pricing lead óf [their] competitors with larger market shares” (Doc. 1324-1 at 9-10). See also Doc. 1322-1 at 24.
But the evidence also shows that admitted price-fixers may never have led price increase quarters (Doc. 1343-54 at 328). The evidence further shows that when (in Defendants’ view) Future Foam found itself forced to follow price leaders: Marc Vitale was providing advance notice of his price increases to Duane Renfro, a man who had fed Vitale with similar advance information from other Defendants in the past (and would do so again in the future); Ken Conaway was sharply questioning price leader Carpenter about whether it had backed off a price increase; and Larry Diamond was directly contacting Carpenter to learn if it was “putting out another [increase] and if so the percentages” (Doc. 1343-418 at 333).' Such “follow the leader” behavior, viewed in context with other evidence, does not defeat Director Purchasers’ claims.
Woodbridge Fabricating Plea Agreement. Typical of conspiracy cases, there is more evidence here of conspiratorial conduct with respect to some Defendants than' others. Of the remaining Defendants, only Woodbridge Fabricating has admitted fixing prices in the United States. As noted above,'it did so in a plea agreement that covered an 11-month period late in the Class Period. The agreement was narrowly drawn to relate only to “polyurethane flexible slab stock automotive foam prices” (Doc. 1343-2 at 30-31). Woodbridge argues the. “narrow scope of the plea agreement entered .into by” Woodbridge. Fabricating “is so manifestly inconsistent with [Direct Purchasers’] vast conspiracy theory that it renders the theory implausible” (Doc. 1329-1 at 11). A criminal guilty plea to a Sherman Act violation thus becomes evidence affirmatively disproving Direct Purchasers’ broader case, also alleging Sherman Act violations.
A reasonable jury could — though, of course, it need not — reject Woodbridge Fabricating’s argument. It does not suggest “complete dereliction by the DOJ” to hold a triable claim exists in this case as to a conspiracy theory substantially broader than that admitted by-Woodbridge. Fabricating. . The DOJ - must negotiate plea agreements against the backdrop of the beyond-a-reasonable-doubt standard; Direct Purchasers need only convince a jury that it was more likely than not that Woodbridge and other Defendants colluded in issuing PIAs. Moreover, whatever *996 unique legal investigatory tools the DOJ may enjoy in a criminal investigation, Direct Purchasers undisputedly brought greater legal resources to bear in prosecuting this case.
Most importantly, the Woodbridge Fabricating guilty plea must be viewed in context with the other, extensive evidence related to Woodbridge that tends to exclude independent conduct. Around the time that the July and August 2008 PIAs were issued, for example, Frank Donato was urging colleague Bob Bisiorek to contact Foamex, a contact that Bisiorek admitted resulted in an agreement between Woodbridge and Foamex (albeit the only agreement of which he had knowledge) (Doc. 1343-43 at 221; Doc. 1464-1 at 5). This “agreement” formed the basis for the Woodbridge Fabricating guilty plea.' But Frank Donato engaged in similar discussions throughout the Class Period, including in periods that fall outside the temporal scope of the Woodbridge Fabricating plea. Woodbridge barely mentions any of this evidence in its briefs in support of summary judgment. The Woodbridge Fabricating guilty plea is not conclusive evidence of the conspiracy charge. But nor does the scope of the guilty plea, alone or together with other evidence, defeat Direct Purchasers’ claims.
Single or Multiple Conspiracies. Defendants contend “the clear evidence [is] that a single conspiracy involving slab-stock foam, fabricated foam, and carpet cushion would be implausible and make no economic sense” (Doc. 1328-1 at 48). These types of flexible foam are produced by different Defendants, using different inputs and different production methods, and are purchased by different sets of customers that rarely overlap (see Doc. 1328-19 at 41 fig. 8). PIAs for slabstock and underlay were issued at different times, because increases in the cost, of chemicals and scrap foam generally did not occur together. Because of these market differences, Defendants argue Direct Purchasers cannot fulfill Matsushita’s requirement to “come forward with more persuasive evidence to support their claim[, alleging a conspiracy that rests on an implausible economic theory,] that would otherwise be necessary” (Doc. 1328-1 at 49) (quoting Matsushita, 475 U.S. at 587 , 106 S.Ct. 1348 ).
“Whether a single conspiracy or multiple- conspiracies have been shown is a question of fact resolved by the jury,” provided the evidence reasonably could support either conclusion. Hughes, 895 F.2d at 1140 . “The principal considerations in determining the number of conspiracies are the existence of a common goal, the nature of the scheme, and the overlapping of the participants in various dealings.” United States v. Smith, 320 F.3d 647, 652 (6th Cir.2003). Defendants cite no legal authority holding that simply because two products are not interchangeable, a conspiracy theory that encompasses both products is implausible.
Direct Purchasers offer evidence of a “common goal”: to coordinate the percentage increase and timing of slab-stock and underlay PIAs, with the purpose and effect of inflating the baseline from which customer-by-customer negotiations would proceed and overwhelming buyer resistance to unjustified price increases by presenting a “common front” among Defendants. “The goals of all the participants need not be congruent for a single conspiracy to exist, so long as their goals are not at cross-purposes.” United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.1990). And that common goal was pursued by common means (see, e.g., Doc. 1343-2 at 22, 24).
Interdependence among the participants simply means that activities of one aspect of the scheme (slabstock coordination) *997 were “necessary or advantageous” to the activities of another aspect of the, scheme (underlay coordination). It need not be the case that slabstock coordination could not occur without-underlay coordination, or that underlay coordination was caused.by slabstock coordination. See Dahl v. Bain Capital Partners, LLC, 937 F.Supp.2d 119, 135 (D.Mass.2013). See also In re Vitamins Antitrust Litig., 320 F.Supp.2d 1, 16 (D.D.C.2004) (requiring only “fairly minimal” evidence of interdependence). And Direct Purchasers produce evidence in which Defendants trace slabstock and underlay production to similar raw materials — slabstock is produced from TDI, MDI, and polyols; scrap is produced from the waste product of fabricated slabstock or from recycled flexible foam; and underlay is produced from scrap. The cost of one product in this chain (underlay) would affect the cost of other products in this chain (slabstock and, scrap), and vice versa. Each aspect of the conspiracy helped co-conspirators pass cost shocks on to customers (see Doc. 1343-16 at 92).
Finally, there is substantial overlap in the actors who coordinated pricing of both slabstock and underlay. The Cooperating Defendants admit coordination with respect to both product markets. Flexible Foam, Future Foam, Hickory Springs, and FXI produced both types of flexible foam, and discussed .pricing for both products (see Doc. 1328-6 at 104). See also United States v. Yonkers Contracting Co., 706 F.Supp. 296, 298 (S.D.N.Y.1989). Direct Purchasers’ single-conspiracy claim can reach the jury.
Mohawk’s Knowing Participation in the Single Conspiracy. Mohawk builds its primary argument in support of summary judgment from Direct Purchasers’ claim that there was a single conspiracy (Doc. 1325-1 at 12 n. 4) (disavowing reliance on other Defendants’ arguments against the existence of a single conspiracy), Mohawk, does not attempt to describe Mohawk President Jack Lens’ extensive interaction with scrap brokers and other Defendants in a manner consistent with independent conduct; Indeed, Mohawk’s’ primary summary judgment argument works the same whether Mohawk admits it was a kingpin of underlay coordination or just a peripheral player.
Instead, Mohawk emphasizes its narrow product focus during the Class Period — it only manufactured rebond underlay and (from 2004 through 2006) prime underlay. It also emphasizes that Lens’ communications with competitors relate only to underlay (rebond or. prime), to scrap costs (the primary input for rebond underlay), or to, chemical pricing in the context of prime underlay. Because there is no slab-stock-related evidence as to Mohawk, and because Jack Lens stated he never had any slabstoek-related discussions with other Defendants (Doc. 1325-4 at 69-70), Mohawk argues Direct Purchasers necessarily fail to create a fact question that Mohawk knew of and intended to join a single conspiracy that included slabstock and underlay. Further compounding this failure of proof, Mohawk argues that Direct Purchasers’ single-conspiracy theory is implausible as to them. Because Mohawk lacked slabstock operations, it could neither engage in slabstock PIA coordination, monitoring, or the allocation of slabstock customers, nor could it internally source any of its 'own scrap foam needs (either through internal fabrication activities, or under buy-back’ agreements with slabstock customers). Mohawk purchased all its scrap foam needs on the open market. According to Direct .Purchasers, coordination of slabstock PIÁs increased the price Mohawk paid for scrap foam.
Direct Purchasers argue, they need not prove each Defendant’s knowing participation in a conspiracy to raise, maintain, *998 or stabilize the price of slabstock and underlay. They must prove knowing participation in a conspiracy to raise, maintain, or stabilize the price of flexible polyurethane foam, which affected slabstock and underlay.. “By actively conspiring to raise the prices of underlay, Mohawk participated in this broader, price fixing conspiracy’-’ (Doc. 1343 at 132): . ‘
It is true that at times courts have spoken as though, if [Mohawk] makes a[n] .,, agreement with [Hickory Springs or another underlay Defendant], [Mohawk] becomes a party to any conspiracy into which [Hickory Springs] may enter, or may have entered, with third persons. That is of course an error: the scope of the agreement actually made always measures the conspiracy, and the fact that [Hickory Springs] engages -in a conspiracy with1 others is as irrelevant [to the scope of Mohawk’s agreement] as that [it] engages in any other crime. It is true that a party to a conspiracy need not know the identity, or even the number, of his confederates; when he embarks upon a criminal venture of, indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them. Nevertheless, he must be aware of those purposes, must accept them and their implications, if he is to be charged with what others may do in execution of them.
United States v. Andolschek, 142 F.2d 503, 507 (2d Cir.1944) (Hand, J.). See also United States v. Peoni, 100 F.2d 401, 403 (2d Cir.1938) (Hand, J.) (“Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.”). Direct Purchasers embrace the same sort of error by implying they need not prove' Mohawk’s knowledge of the slabstock component of the conspiracy. The fact that Direct Purchasers’ single conspiracy included slabstock is not a mere “detail,” of which Mohawk could be ignorant while still showing knowing involvement in the conspiracy as alleged. See Blumenthal, 332 U.S. at 557 , 68 S.Ct. 248 . Overcharges attributable to slab-stock account for two-thirds of the class-wide damages (see Doc. 1328-6 at 104).
Nor does the “slight connection” rule eliminate the need to show Mohawk knowingly joined in a conspiracy that included the two products (see Doc. 1467 at 113-14). Direct Purchasers- “must prove that -[Mohawk] was aware of the object of the conspiracy and that [it] voluntarily associated [it]self with [the conspiracy] to further-its objectives.” Once Direct Purchasers make that showing, Mohawk cannot absolve itself by showing that, though it knew the conspiracy extended to slabstock, it participated only in underlay coordination. “[Mohawk’s] connection to the conspiracy ... need only be slight. [It] need not be an active participant in every phase of the conspiracy, so long as [it] is a party to the general conspiratorial agreement.” United States v. Hodges, 935 F.2d 766, 772-73 (6th Cir.1991) (internal citations and quotation marks omitted). In re Lithium Ion Batteries Antitrust Litig,, 2014 WL 309192 , at *13 n. 13 (N.D.Cal.2014).
Direct Purchasers cite evidence establishing Mohawk’s “awareness of co-conspirators’ efforts to raise prices on slab-stock”-: Mohawk’s communications with known slabstock producers; and Mohawk’s production of prime underlay and communications with other Defendants about prime underlay or chemical pricing. (A third category of evidence explains why Mohawk’s participation in the single conspiracy makes sense (Doe. 1343 at 134-35), but that evidence does not provide, direct or circumstantial evidence that .Mohawk knew the single , conspiracy existed if the first two categories of evidence do not.).
*999 Jack Lens of- Mohawk frequently spoke with Don Simpson of Hickory Springs, discussing scrap foam pricing (which Mohawk purchased from Hickory Springs) or rebond underlay pricing (which Mohawk sold in competition with Hickory Springs). But neither scrap nor underlay coordination would necessarily include discussions about or knowledge of slabstock coordination by other Defendants, and none of the specific communications to which Direct Purchasers point relate to slabstock. Direct Purchasers argue that “Hickory Springs, a conspirator in both portions of the conspiracy, manufactured both slabstock and underlay, permitting the inference that Mohawk learned of and/or knew about the slabstock portion of the conspiracy from communications like these” (Doc. 1343 at 133). “[M]ere association with conspirators is not enough to establish participation' in a . conspiracy.” United States v. Gibbs, 182 F.3d 408, 422 (6th Cir.1999) (internal quotation marks omitted).
Direct Purchasers next note that from 2004 through 2006, Mohawk produced prime underlay at its Hope, Arkansas plant. As Lens explained, Mohawk produced prime underlay in a manner similar to slabstock production — prime underlay was “made from virgin chemicals” using a conveyor belt and curing process like that used for slabstock (Doc. 1343-55 at 746-47). Direct Purchaser therefore contend that because “Lens communicated with at least Simpson of Hickory Springs regarding the chemical inputs into prime foam[, a] jury could conclude that during this period; just like any other manufacturer of slabstock, Mohawk had every incentive to participate in a price fixing conspiracy that relied on increased raw material inputs to increase foam prices” (Doc. 1343 at 133).
Based on the; record, a jury could reasonably conclude that slabstock and prime underlay are substantially similar in respects relevant to the scope of Mohawk’s knowledge of its competitors’ activities.. For some Defendants, “Prime carpet [underlay] ... is actually made on the slab-stock polyurethane. foam manufacturing line,” emerging as a cured bun before it is sent through a cutting device (Doc. 1353-1 at 31-33). While Mohawk used an extrusion process at-its Hope facility (id. at 22), it fed foam production with the exact chemicals used tó make slabstock foath. In addition-to repeated discussions about rebond ’ underlay prices, Mohawk had knowledge of prime underlay price discussions bétween its competitors (see, e.g., Doc. 1343-19 at 256-58). (See also Doc. 1343-15 at 32) (internal Leggett & Platt email, stating Jack Lens had advance knowledge of a Flexible Foam 15 percent rebond underlay price increase, which was noticed to customers the following day in a letter that signaled a 15 percent- rebond underlay price increase and a 20 percent prime underlay price increase),
A jury could find that Defendants and Mohawk discussed rebond underlay price increases to cooperatively pass cost shocks through to rebond customers. A jury also couíd' conclude Mohawk knew that its competitors’ prime underlay discussions shared the same purpose.. And, finally, a jury couid decide that the fair import of Mohawk’s agreement with its competitors included knowledge of similar conversations with respect to slabstock. Slabstock production faced the same cost increases that triggered Defendant’s prime underlay conversations. Mohawk knew Defendants sought to pass through cost shocks affecting prime underlay through to customers, and a jury could reach the same conclusion with respect to slabstock.
This Court considers the issue of Mohawk’s knowledge of the conspiracy’s scope to be a close call, and will allow , a properly instructed jury to consider-in the *1000 first instance whether Mohawk knowingly participated in the single conspiracy Direct Purchasers allege.
Mohawk’s other summary judgment argument, that it is entitled to judgment as a matter of law because Direct Purchasers calculate impact and damages for so-called Arbitration Customers (whose claims have been stayed in this case), is denied without prejudice. As discussed at oral argument, this issue is contingent on the type of jury verdict (if any) returned in Direct Purchasers’ favor at the liability and- impact trial, and Arbitration Customers have otherwise viable claims against other Defendants. Mohawk will not face damages in this litigation related to the claims of Arbitration Customers.
Impact Evidence is Admissible and Creates Questions of Fact
In certifying the Direct Purchaser Class, this Court reviewed in great detail a series of expert reports submitted by Leitzinger (Direct Purchasers’ primary class certification and merits expert), Dr. Ordover (Defendants’ class certification expert), and Dr. Burtis (Leggett & Platt and Mohawk’s class certification expert). This Court also questioned and heard testimony from each expert (see Docs. 938, 967). After analyzing Leitzinger’s models in great detail, this Court concluded Direct Purchasers offered methods of proving impact and damages on a classwide basis (Do'c. 1102 at 38-85). For similar reasons it denied a motion to exclude Leitzinger’s testimony (Doc. 1101 at 1-9),
During expert merits discovery, Leit-zinger made slight modifications to his impact and damages models, performing additional sensitivity analysis. ' Two changes are most relevant. First, Leitzinger introduces new cost variables. One new variable measures the slabstock-producing Defendants’ chemical costs,'using transactional data received from major chemical manufacturers BASF, Bayer, Dow, and Huntsman (Doc. 1343-56 at 287-88). The other new variable measures scrap costs, based on a scrap-cost variable constructed using instrumental variable analysis (id. at 285-87). Second, Leitzinger “prorated Defendants’ price increase announcements to reflect the timing of the announcements within each quarter” because, in some price-increase quarters, PIAs of all or some Defendants took effect late in the quarter (id. at 288). Leitzinger also performed a persistence-damages calculation, using lagged variables for previous quarters’ PIAs. He explains (id: at 290) (footnote omitted): -
.
[ijnasmuch as Defendants" issued price increases on average approximately every three quarters, I included three lagged price increase announcement variables, representing announcements from one, two, and three quarters prior to the current quarter. The coefficients on these lagged price increase announcements may be positive (to the extent that the full effects of price increase announcements on actual prices required multiple quarters to emerge), zero (to the extent that price increase announcements no longer had an effect on prices in subsequent quarters), or negative (to the extent that price distortions introduced by the price increase announcements resulted in an over-correction in subsequent quarters).
With this modified model, Leitzinger finds impact results substantially similar to the initial estimates produced in class certification discovery (compare id. at 302, with id. at 304). He estimates an all-Defendants average overcharge percentage of 5.1 percent for underlay, and 4.7 percent for slab-stock (id. at 309-10).
Defendants’ impact arguments, raised in the context of summary judgment or Rule 702 motions, fall into four categories. Each is discussed in turn.
*1001 (1) Model Results. Before certifying the Direct Purchasers Class, this Court considered an array of arguments advanced by Defendants, all aimed at showing Leitzinger’s models could not show impact on a classwide basis. Many of these arguments tended toward a central contention: because of how Leitzinger constructed his model, the models failed to produce impact results (or valid results) for large portions of the Direct Purchaser Class. Defendants and their experts now advance substantially the same arguments (though modified to fit the output of Leit-zinger’s revised models).
Defendants argue that Direct Purchasers’ “only proof of antitrust impact comes from Dr. Leitzinger’s regression results” (Doc. 1328-1 at 34; see also Doc. 1322-1 at 27). Not so (see Doc. 1102 at 31-37, 66). Relatedly, Defendants argue because there is “nothing in the record to fill [the] void [represented by the 40 percent of Master Billing IDs (“MBIDs”) for which impact coefficients are not estimable because of absence of usable purchase data or purchase patterns], Defendants are entitled to have these purchases removed from the case as well” (Doc. 1328-1 at 35). Claims of impact as to purchases related, to MBIDs whose impact coefficients bear a p-value of greater than .05 allegedly also fell (id.). Also not true. Leitzinger will testify' at trial about his models’ designs and results. He will then explain the bases for inferring from those models and results an impact finding for (1) non-estimable MBIDs or (2) MBIDs that are only associated with impact coefficients lacking in the “conventional” level of statistical significance.
After (1) examining in detail Leitzinger’s four expert reports (see Docs. 1326-3, -4, - 5, -6) and the many Defense expert reports submitted at class certification and summary judgment; (2) reviewing the transcripts of Leitzinger’s four depositions (see Doc. 1328-7 at 1-65; Doc. 1328-9 at 1-63; Doc. 1328-10 at 1-73; Doc. 1328-11 at 1-75); and (3) personally examining Leitzinger at the January 2014 class certification hearing (see Doc. 967), this Court cannot say Leitzinger’s models produce results that fail as a matter of law, or are 'so unreliable as "to warrant exclusion under Federal Evidence Rule 702. Rather, Leit-zinger’s extensive review of the discovery record supports his qualitative conclusions about the flexible foam industry, and his quantitative modeling of customer experiences is the result of careful consideration of Direct Purchasers’ case theory. A jury may choose to accept or reject all or part of Leitzinger’s testimony.
However, this Court will grant summary judgment with respect to purchases associated with the 2,266 negative impact coefficients. Defendants claim “a negative impact coefficient indicates that the alleged conspiracy lowered foam and carpet cushion prices below what [Leitzinger’s] models] would predict based- on those same supply and demand variables” (Doc. 1328-1 at 34) (emphasis omitted). Direct Purchasers fail to address this alternative ground for summary judgment 'to explain (for example) the other evidence that would allow a jury to find impact "as to these purchases.
(2) “Nonsensical” But-for Price Predictions. Defendants say they have identified “[c]lear proof of the unreliability of Dr. Leitzinger’s work” — his models predict “that the ‘but-for’ price of foam [would] decline[] every year from 1999 to 2010, despite substantially increasing input costs,” becoming so disconnected from expected patterns in “but-for” pricing that Leitzinger predicts Defendants would have sold foam below cost for large portions of the Class Period (Doc. 1328-1 at 37 & 38 figs. 20-21).
*1002 Leitzinger responds in two ways. He first notes that, from Defendants’ transactional data, one can calculate Defendants’ standard cost margin (i.e„ gross profits), then compare that standard cost margin to estimated overcharges. Such a comparison shows a Defendant’s gross profits far exceed the Leitzinger models’ overcharge estimates (Doc. 1328-6 at 36-37). The models therefore do not predict but-for-world sales at massive discounts (see id.). Leitzinger also explains that if one were to subtract the models’ estimated overcharges from a Defendant’s average actual transaction prices, an approximate but-for foam price would result (id. at 40). This estimated but-for foam price moved closely with costs. The but-for foam price would not remain flat or decline while costs increase substantially (see, e.g., Doc. 1328-6 at 100).
Defendants have not presented an argument that compels summary judgment on this basis. Defendants ignore Leitzinger’s claim that the but-for foam. price trend reasonably parallels, trends in chemical or scrap costs (see Doc. 1355 at 19). While this Court understands Leitzinger’s models’ directly predict changes in prices (and do not directly predict.actual prices), Defendants have not demonstrated that Leit-zinger’s alternative approaches for double-checking his model’s indirect but-for price predictions are unreasonable or otherwise rely on flawed premises.
(3) Controlling for an Oligopolistic Price Premium. Defendants assert that Direct Purchasers cast the slabstock and underlay markets ‘ as oligopolies (Doc. 1328-1 at 12). Pricing in an oligopoly, Defendants say, is not a simple matter of supply and demand. Instead, competitor firms set price on the basis of supply and demand factors, as well as the expected pricing decisions of other dominant competitor firms. “Dr. Leitzinger has made no effort to measure the impact of oligopo-listic interdependence in foam and carpet cushion- markets; his models purport to control only for supply and demand variables, and1 do not attempt to control for the effects of oligopoly.” Therefore, the models may find antitrust “impact” in the lawful practice of interdependent pricing (id. at 42-43).
At summary judgment, Defendants carry the burden of showing the absence of genuine disputes of material fact. One can assume, the slabstock and underlay markets are moderately concentrated (Doc. 1328-6 at 46), without also assuming the interdependent pricing would occur in the industry, absent the alleged collusion. See, e.g., In re Petrol Prods. Antitrust Litig., 906 F.2d at 443 (noting “[t]here has been a considerable debate-in the literature over whether interdependent pricing is an inevitable or inherent feature of certain types of concentrated markets” and collecting conflicting studies). Defendants do not offer evidence suggesting that interdependent pricing, at supracompetitive levels would occur, in either market segment absent collusion (much less evidence that would compel such a conclusion). And in any. event, Leitzinger’s models would not predict overcharges that depend on an oligopoly pricing premium because (among other things) the models measures quarter-over-quarter price changes, and Defendants offer no evidence or explanation why an oligopolistic pricing premium would change between quarters.
(4) Impact and Damages as to Omitted Transactional Data. Direct Purchasers sue to recover damages on the' Sale of (among other products) automotive slab-stock foam. Leitzinger does not include automotive slabstock foam transactional data in his impact dataset, even though Defendants provided such data. He claims, the information was unusable in his models “because of the issues associated *1003 with the timing of price increase communications and ... product identification” (Doc. 1328-10 at 57; see also Doc. 1328-6 at 75). Price increases for automotive slabstock foam either were not signaled to customers through. PIAs, or it is unclear whether a Defendant’s general slabstock foam PIAs applied to automotive slabstock foam. Leitzinger excluded from his impact dataset all Woodbridge transactional data — including non-automotive slabstock foam — because the data lacked identificátion of “foam types or product types” (Doc. 1328-3 at 61-62 n. 336), data fields Leit-zinger’s impact models require, to operate.
Leitzinger explained how he. generated damage results for automotive slabstock foam, as well as for- Woodbridge’s. nonautomotive slabstock .foam. He (1) excluded automotive slabstock foam and all Woodbridge transactional data from his impact dataset; (2) calculated impact coefficients and an overcharge figure for slab-stock based on the experiences of nonautomotive slabstock foam customers of Defendants other than Woodbridge; and (3) then calculated a classwide damages figure by applying the slabstock overcharge to Defendants’ aggregate slabstock foam sales, including Defendants’ automotive slabstock foam sales and all Wood-bridge’s slabstock sales.
In FXI and Woodbridge’s view, the “[l]ack[ ] Of any transaction-based evidence of impact on Woodbridge sales (and on sales to automotive [slabstock] foam customers of any defendant)” forces Leitzinger to rely on' “fictional overcharge ‘estimates’ ” (Doc. 1329-1 at 20) (emphasis in original). The overcharge estimates are “fictional” with respect to automotive slab-stock foam sales and Woodbridge’s sales because the estimates are based on the impact coefficients of non-automotive slab-stock. foam of Defendants other than Woodbridge (id. at 20-21). If a Direct Purchaser had bargaining power-based on the volume of its foam purchases (as automotive- slabstock foam buyers did), FXI and Woodbridge contend that bargaining power would tend to reduce antitrust impact. ' Further, FXI contends that its separate slabstock business units, headed by different individuals, independently drafted PIAs for automotive slabstock foam and non-automotive slabstock foam, with no necessary connection between the increase amounts or effective dates set by the two units (see Doc. 1328-21 at 171-75).
FXI and Woodbridge also argue Direct Purchasers commit Comcast error by calculating damages for automotive slabstock foam and for Woodbridge sales.' Direct Purchasers’ liability theory depends on coordinated price increases. But, Direct Purchasers “dispense with the need for letters or transactional impact for Wood-bridge (and all automotive foam) customers. Absent common price letters causing common impact (per the theory of harm), no corresponding common regression .(the measure of damages) can exist for those customers” (Doc. 1329-1 at 23). “[H]ere, the economic impact that Dr. Leitzinger calculates is unhinged from the supposedly harmful event; damages do not vary at all regardless of whether Woodbridge sent a price increase letter or not, whether it announced an identical, higher[,] or lower increase than other defendants (or none at all), and whether customer-specific circumstances (such as bargaining power) mitigate or negate any putative impact” (id. (internal quotation marks omitted) (emphasis in original)).
Direct Purchasers contend a reasonable jury could accept Leitzinger’s damage calculations for automotive slabstock foam because automotive and non-automotive slab-stock foam are produced from, the same chemicals, and therefore were subject to the same cost shocks. Woodbridge, FXI, and the Vitafoam Defendants controlled 90 *1004 percent of product sales, which Defendants referred to as a commodity. Thus, antitrust injury as to automotive slabstock foam customers would be similar to injury as to non-automotive slabstock foam customers, and widespread.
As an initial matter, neither FXI nor Woodbridge show that Leitzinger’s reasons for excluding these data somehow misrepresents the data. Woodbridge notes that General Motors, a Direct Action (non-Class) Plaintiff, retained another expert (Dr. Debra Aron) who found Wood-bridge’s data usable (Doc. 1328 at 20 n. 7). But Woodbridge does not explain whether Aron’s statistical model is comparable to Leitzinger’s models, such that her use of Woodbridge’s transactional data would have any bearing on Leitzinger’s exclusion of the same data. None of Aron’s expert reports have been filed in connection with Defendants’ summary judgment motions. But judging from Defendants’ experts’ discussion of Aron’s model, the two experts’ models differ in fundamental ways (see, e.g., Doc. 132826 at 37, 40) (Woodbridge expert report describing Aron’s “molded foam model” as a “quantity weighted multiple regression analysis” which estimates impact based on “the estimated coefficients on [only] ... two indicator” variables).
These challenges at best win FXI and Woodbridge a reduction in damages corresponding to automotive slabstock foam sales (or a narrowing of the certified class). Both Defendants would remain jointly and severally liable for the conspiracy’s nonautomotive slabstock foam overcharges, including their own. This Court already has determined a jury could accept as reasonable the inferences Leitzinger draws from structural and statistical evidence to offer opinions on impact as to certain categories of MBIDs and otherwise unusable transactional data. But those inferences more closely resemble apples-to-apples comparisons (e.g., using underlay customers • ‘ impact coefficients to predict the purchasing experiences of underlay customers for -whom impact coefficients are not estimable) than the reasoning Leitzinger uses to show impact on automotive slabstock foam (e.g., using non-automotive slabstock foam customers ‘ impact coefficients to predict the purchasing experiences of automotive slabstock foam customers). Even so, questions of impact as to automotive slab-stock foam customers can reach a jury. As courts frequently hold, a plaintiff can prove impact using a dataset that is less than complete as to each defendant. See, e.g., In re Scrap Metal Antitrust Litig., 2006 WL 2850453 , at *15 & n. 41 (N.D.Ohio 2006), aff'd, 527 F.3d 517 (6th Cir.2008). Leitzinger’s exclusion of such data goes to the probative weight of his models’ impact and damages findings; it does not mandate judgment as a matter of law.
This Court likewise rejects Defendants’ Comcast error arguments. Questions of fact exist regarding Woodbridge’s participation in a price-fixing conspiracy, which can be proved (or not) using common evidence. Damages in this case will be the result of a single theory of antitrust harm: Defendants’ alleged coordination of slab-stock and underlay price increases. Leit-zinger’s impact models measure the percentage change in price attributable to PIAs, holding constant other relevant drivers of price. The resulting impact coefficients prove fact of damage. The impact coefficients then combine to create Leit-zinger’s average overcharge figure, which proves quantum of damages.
The claim that “damages do not vary at all” despite differing PIA terms or customer characteristics is therefore both an oversimplification of how Leitzinger’s models arrive at a damages figure and (apparently) a reference to a heightened standard of *1005 proving antitrust damages. Impact coefficients, calculated for each product-customer observation with usable- data, account for the different experiences of consumers in a far more granular way than (for example) a during/after regression model with one or a few indicator variables. At the least, there is a reasonable basis for a jury to infer Woodbridge customers’ experience based on the models’ results and other evidence. And for proof of damages, it is “enough if the evidence show[s] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 , 51 S.Ct. 248 , 75 L,Ed. 544 (1931) (cited with approval in Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 1433 , 185 L.Ed.2d 515 (2013)).
Tolling the Limitations Period is a Jury Question .
Finally, Defendants argue that, as a matter of law, recovery for pre-Decem-ber 2006 claims is barred because Direct Purchasers (1) have produced no evidence of active concealment and (2) failed to exercise due diligence (Doc. 1328-1 at 29-33). (Each class representative for whom tolling is an issue testified that it did not know of the alleged conspiracy prior to the 2010 government raids); Defendants argue such assertions “miss[ ] the mark” and fail to excuse Direct Purchasers’ claimed lack of due diligence based on other suspicions class representatives had during the Class Period. (Doc. 1355 at 15.). Material factual disputes prevent this Court from granting judgment as a matter of law on either basis.
Direct Purchasers’ active-concealment evidence begins with the typical PIA’s recitation of the causes for a price increase (e.g., the increasing cost of chemicals or rising scrap prices), which “misled class members by providing pretextual reasons for the increase” (Doe. 1343 at 90). Defendants allegedly shared information in a manner that would evade detection. Defendants- would occasionally send or receive PIAs using-personal e-mail accounts. Defendants -also received PIAs that had been faxed from public fax machines (e.g., a fax machine at a Comfort Inn or from an office supply store), a means of communication that (on Direct Purchasers’ view) attempted' to conceal pricing discussions between bompetitors. Defendants’ files contain PIAs with fax transmission or address information obliterated. And Defendants used shorthand or code to refer to competitor employees and price discussions. For Frank Donato, “DP from' F” meant Don Phillips from Foamex. When Donato and Bill Lucas of Vitafoam USA talked 'about “[o]ur favorite issue,” they talked about prices.
Defendants also cautioned one another in handling information received from or about a competitor. In August 2005, scrap broker Duane Renfro advised Clyde Scott of Leggett & Platt that he would “have [for] you [Flexible Foam’s] price increase letter this afternoon .or first thing in the morning.” Apparently before receiving the PIA, though, Scott -wrote to colleagues Larry Heppe and Joe York “Flexible with Chuck [Moeller] at ‘helm’ is announcing a 15% increase (they are below everyone now in Texas) Alliance & Carpenter will be announcing- soon. ■ Not -15% but to get Apples & Apples. This is. confidential. Wait till I get announcements before saying anything” (Doc. 1343-16 at 121). In May 2009, an .FXI employee learned by email from a Woodbridge employee that Woodbridge had “re-quoted [FXI customer .J.CI] based on current economics about 3 weeks ago and they tell me that my foam price is too high compared to current (you) and another company; not sure who that is. I am re-working the numbers to- see if I can come down, but I am not sure if I can make it down' to where they want me *1006 to be. I’d say it is about 50/50 on if I try to sweeten it or if I walk away and keep the PIP [apparently a misspelled reference to, “FIP” or “foam-in-place”] business.” The FXI employee then forwarded the Woodbridge employee’s comments to Don Phillips of FXI, writing “[f]or your ears only.,. Keep this on the down low. I don’t want it out that I’m talking pricing with the- comp. I told Steve we’d get together for lunch. Too many e-mails” (Doc.' 1343-13 at 2). .And in August 2009, an FXI employee e-mailed, his company’s published PIA to a Carpenter employee, stating “[d]on’t say where you got it ... ” (id. at 123), while David Gurley of Vitafoam Canada asked colleague Peter Farah to “keep .. confidential” an e-mail chain he had forwarded to Farah showing competitors engaged in general price discussions (id., at 111-14).
’ Direct Purchasers argue that the allegedly pretextual reasons for a price increase stated in the PIA are “archetypal concealment” (Doc. 1343 at 90). Defendants argue allegedly pretextual statements in PIAs are not enough, building on the undisputed fact that “higher raw material costs ... preceded every announced PIA.” But Direct Purchasers’ pretext argument does not deny that cost shocks preceded PIAs. Rather, a portion of the announced price increase was not the product of “rising costs,” but rather- collusion with competitors (Doc. 1343-8 at 265). “[T]he price announcements do not constitute mere silence as to the existence of a conspiracy,’ but [instead are] ... affirmative acts of concealment.” Direct Purchasers “do riot argue that the conspirators falsely stated that costs were rising ..., but rather they allege that the conspirators falsely stated that prices were being -raised because of those conditions, when in fact they were raising prices in furtherance of a price-fixing conspiracy. Such conduct goes beyond mere silence or nondisclosure.” In re Urethane Antitrust Li
tig., 913 F.Supp.2d 1145, 1163-64 (D.Kan.2012) (emphasis added) (collecting cases). Such statements are affirmative acts of concealment, separate from the alleged price-fixing itself. Defendants’ price-fixing violations would-, have been established when they agreed to coordinate price increase amounts and timing. See Dry Cleaning & Laundry Inst. of Detroit, Inc. v. Flom’s Corp., 841 F.Supp. 212, 217 (E.D.Mich.1993). Nothing in that conclusion conflicts with Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445 , 1473-80 (6th Cir.1988) (granting summary judgment on freighters’ fraudulent concealment clairris because one had expressly contemplated an antitrust action against a coalition of railroads while the second failed' to produce proof of affirmative misrepresentations and also knew that railroads “were acting jointly to [the shipper’s] detriment” with respect to handling charges), or any other binding caselaw identified1 by Defendants. See Carrier Corp., 673 F.3d at 447 (concluding claim that a defendant offered “false and pretex-tual reasons”- for the pricing of copper tubing failed to satisfy Federal Civil Rule 9(b)); Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 891 (6th Cir.2004) (assuming acts of affirmative concealment but finding' statute of limitations barred copyright infringement claim because of plaintiffs failure to exercise due diligence).
Shifting to due diligence, Defendants maintain that Direct Purchasers’ conspiracy theory itself put Direct Purchasers on inquiry notice that a price-fixing conspiracy may have operated in the flexible foam industry: Direct Purchasers “maintain that the similarity in these,allegedly pretextual price increase announcements are evidence of conspiracy,” yet Defendants .sent these similar.PIAs to class representatives who, according to their der *1007 position testimony, became suspicious as to why Defendants priced similarly (Doc. 1328 — i at 30-32). However, aside from pricing similarity, Defendants cite to no other red flags that they say should have triggered investigation into possible antitrust violations. This Court must leave arguments like these to the jury. “[D]oing nothing might be reasonable where nothing suggests to a reasonable person that wrongdoing is afoot. However, once wrongdoing is suspected, the plaintiff must be diligent, even if doing so might in hindsight be considered futile.” Venture Global Eng’g, LLC v. Satyam Computer Servs., Ltd., 730 F.3d 580, 588 (6th Cir.2013). The degree of investigation (if any) the plaintiff must undertake depends on the nature of the red flags a reasonable person should have had knowledge of. See Campbell v. Upjohn Co., 676 F.2d 1122, 1128 (6th Cir.1982). So, for example, when the claim is that an oil company “deliberately miscalculated” and underpaid royalty payments it owed lessors, then “deliberately falsified ... monthly accounting statements” and explained royalty payment calculations in a way that could not be independently verified, the proper limitations period is a question of fact. Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 475 (6th Cir.2013).
There is something more here — not the fact of similar pricing (which Defendants deny, and which in any case has long been insufficient, on its own, to make out a Section 1 claim, cf. Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541 , 74 S.Ct. 257 , 98 L.Ed. 273 (1954)), but rather the admission of some class representatives that they were “

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7235448. Public record. Not legal advice.