In re: Domestic Drywall Antitrust Litigation

*178 MEMORANDUM RE: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Judge Michael M. Baylson, United States District Ct Judge

TABLE OF CONTENTS

I.Introduction... 180

II. Procedural History... 181

III. Plaintiffs’ Allegations in Amended Complaints... 182

IV. Discovery... 183

V. Settling Defendants... 184

VI. Motions for Summary Judgment ...184

A. American... 185

B. National.. .186

C. Lafarge... 187

D. PABC0....187

E. CertainTeed... 187

VII. Summary Judgment Standard ...188

VIII. Legal Analysis in Oligopoly Cases... 189

A. Matsushita Elec. Indust. .Co., Ltd. v. Zenith Radio Corp.... 191

B. Petruzzi’s IGA Supermarkets Inc. v. Darling-Delaware Co. Inc.... 191

C. In re Baby Food Antitrust Li-tig.... 192

D. In re Flat Glass Antitrust Li-tig.... 193

E. In re Chocolate Confectionary Antitrust Litig.... 194

IX. Undisputed Background Facts... 194

A. Wallboard Industry Background. . .194

1. Market Share... 195

2. Demand... 195

3. Capacity.. .195

4. Job Quotes... 196

B. Trade Association Membership & Meetings... 196

*179 X. Bourjaily and Application of the Co-Conspirator Hearsay Exception... 197

A. Brief History of the Co-Conspirator Exception... 197

B. Impact of Federal Rules of Evidence ...198

C. Bourjaily Ends the Rule Against Bootstrapping.. .199

D. Admissibility of Hearsay Statements in Antitrust Suits Under the Co-Conspirator Exception Post -Bourjaily.. .200

1. Big Apple BMW, Inv. v. BMW ofN. Am., Inc. ... 201

2. In re Flat Glass Antitrust Li-tig... .202

E. Role of the Co-Conspirator Exception in this Case... 203

XI. Chronology of Material Facts... 203

A. February — October 2011.. .204

B. 2012 Activity.. .217

XII. Evidentiary Findings Pursuant to Fed. R. Evid. 104.. .228

A. Parties’ Statements.. .228

B. Business Records... 228

C. Co-Conspirator Statements & Bour-jaily. . .228

XIII. Plaintiffs’ Theory of the Drywall Conspiracy.. .231

A. Timing and Similarity of Defendants’ Announcements Related to Elimination of Job Quotes and the 2012 and 2013 Price Increases.. .231

1. Pricing Practices Prior to Fall 2011...231

2. Price Increase and Elimination of Job Quotes Effective January 2012...232

a. American Announcement.. .232

b. USG Announcement.. .233

c. National Announcement.. .233

d. CertainTeed Announcement. . .233

e. Lafarge Announcement.. .234

f. TIN Announcement.. .234

g. PABCO Announcement.. .234

h. Implementation & Results.. .234

3.Events Leading up to the 2013 Price Increase...235

a. Pricing Guidance Following the Drake Group Meeting.. .236

b. Fall 2012 Pricing Announcements ...236

B. Intercorporate Communications. . .237

1. Keith Metcalfs April and Early September Communications.. .238

2. September L&W Phone Calls... 239

3. PABCO & American Phone Call.. .240

4. National’s Reference to “[V]erbal [A]greements for a [LJarge [P]rice [I]n-crease in 2013”...240

C. Communications with Research Analysts. . .241

1. Analyst Background Information. . .242

2. Legal Viability of Plaintiffs’ Conduit Theory.. .242

a. Authority Supporting Plaintiffs’ Conduit Theory.. .242

b. Authority Undermining Plaintiffs’ Conduit Theory.. .243

3. Evidence Allowing Inferences of Defendants’ Using Analysts As Conduits ...244

a. National Signaling Through Thompson and Longbow?.. .244

b. Lafarge Signaling Through Longbow?. . .246

D. Defendants’ Non-Price Conduct. . .248

1. Limiting Supply.. .248

*180 a. Limiting Supply Prior to 2012 Increase ...248

b. Limiting Supply Prior to 2013 Increase ...249

2.Declining to Compete for Customers. . .250

XIV. Analysis — Consideration of Plus Factors.. .251

A. Motive .. .252

B. Actions Against Self-Interest.. .252

C. Traditional Conspiracy Evidence. . .254

1. American.. .256

2. National.. .256

3. PABCO... 256

4. Lafarge... 257

5. CertainTeed.. .257

D. Conclusion.. .259

I. Introduction

In fall 2011, several U.S. gypsum wallboard manufacturers announced substantial changes to their pricing, ending a longstanding pricing practice and scheduling a very large price increase to commence in January 2012 and to be effective for the entire year. Then, in fall 2012, these manufacturers again announced similar price increase to take effect in January 2013. In this multidistrict litigation (“MDL”), Plaintiffs allege that the Defendants’ 2012 and 2013 price increases and other changes in pricing practices were the result of an agreement, in violation of federal and state antitrust laws.

Currently before the Court are four motions for summary judgment: Defendants’ Joint Motion for Summary Judgment (ECF 206), Defendant CertainTeed’s Motion for Summary Judgment (ECF 207-08), Defendant Lafarge’s Motion for Summary Judgment (ECF 204), and Defendant PABCO’s Motion for Summary Judgment (ECF 205). For the reasons that follow, the court GRANTS the Motions for Summary Judgment as to CertainTeed and DENIES the Motions for Summary Judgment as to American, National, Lafarge, and PABCO.

At the outset of these consolidated cases, the Court convened a pretrial conference on September 18, 2013 to discuss pretrial issues including discovery and initial pleadings. Defendants’ counsel indicated that it was not their intention to file Rule 12 motions, although their clients strenuously disputed the truth of the allegations against them. Eventually, a consensus was reached among counsel and the Court that discovery would be initially limited to whether there was an agreement between any Defendants in violation of Sherman Act § 1. (ECF 64). Thus, the Court postponed discovery on issues such as class action, damages, antitrust injury, etc.

By and large, discovery proceeded without any need for intervention. There was substantial production of documents by Defendants, and a deposition program was initiated and completed.

Following the close of discovery, Defendants, as planned, filed motions for summary judgment. As detailed below, each Defendant has supported its motion for summary judgment by declarations and deposition testimony by their officers and managers involved with the pricing of their drywall products. These testimonial materials assert that there was no agreement between their employer and ány other Defendant.

Against this forceful show of denial, Plaintiffs have come forward with detailed facts that Plaintiffs assert show a genuine dispute that would allow a jury to find that there was an agreement by all of Defendants concerning prices.

*181 Included within the factual material are excerpts from documents and testimony by the two third-party research organizations that had been subpoenaed and provided documents and deposition testimony, Longbow Research (“Longbow”) and Thompson Research Group (“Thompson”).

As required by the Court’s practice order, Defendants have supported their motions for summary judgment with statements of undisputed facts. Plaintiffs have come forward with responses to many of these assertions, claiming there are disputed facts, and have added additional facts to which Defendants have responded.

As of result of this melange of factual materials, the Court believes that the “core facts” of the case, as contained in documents produced by all of Defendants, or third parties, along with deposition testimony by their officers and managers, are largely undisputed. The task of the court is to determine whether inferences favorable to Plaintiffs can be drawn from these factual materials.

In proceeding towards the appropriate analysis, the Court believes that there are three issues that must first be analyzed in detail, as follows:

First, the Court will review the history of the drywall industry in the United States, which satisfies the accepted definition of an oligopoly, and the drywall manufacturers’ efforts to raise prices following the well-documented housing slump in 2008-2010.

Second, the Court will provide the legal analysis of the decision by the Supreme Court in the Matsushita case and a number of Third Circuit opinions analyzing antitrust claims involving oligopoly industries such as drywall. The Court must recognize the unique economic discipline that applies to price fixing allegations against companies in an oligopoly setting, and the required hesitation, if not disinclination, to find any type of conspiracy from merely ambiguous evidence, but also, a duty to consider what courts have called “plus factors.”

Third, the Court will review the evidence rules concerning alleged co-conspirator statements.

In making this review and analysis, the Court recognizes that this is not an occasion for fact finding. Defendants’ motions assert their innocence; Plaintiffs assert their liability with equal vigor. The Court’s role is not take sides, find facts, or determine liability or innocence, but only to determine what, if any, inferences can be drawn consistent with the governing case law on antitrust price fixing and the rules of evidence on allegedly co-conspirator statements.

After laying the groundwork on the industry background and legal principles, the Court will embark upon a chronological review of the factual materials, highlighting those facts that Plaintiffs have asserted are the strongest towards showing an agreement. The Court will then explain its decision as to admissibility of hearsay evidence, and separately, the ability of the jury to draw reasonable inferences of agreement based on the record in this case.

II. Procedural History

In April 2013, the Judicial Panel on Mul-tidistrict Litigation ordered consolidation in this District before the undersigned of various drywall antitrust cases from this and other Districts for pretrial proceedings. The original Defendants were U.S. domestic drywall manufacturers, namely CertainTeed Gypsum (“CertainTeed”), United States Gypsum Company (“USG”) and its parent USG Corporation (“USG Carp.”), New NGC, Inc. (“National”), La-Farge North America Inc. (“LaFarge”), *182 American Gypsum Company LLC (“American”) and its parent company Eagle Materials Inc. (“Eagle”), TIN, Inc. (“TIN”), and PABCO Building Products, LLC (“PAB-CO”).

By May 2013, multiple putative class actions had been consolidated in the MDL. These actions had been filed on behalf of proposed classes of Plaintiffs who purchased drywall either directly or indirectly from Defendants. 1 The direct purchaser actions alleged violations of § 1 of the Sherman Act, 15 U.S.C. § 1 ; the indirect purchaser actions sought injunctive relief through § 16 of the Clayton Act, 15 U.S.C. § 26 , based on allegations of violations of § 1 of the Sherman Act, 15 U.S.C. § 1 , and sought damages based on alleged violations various of state laws. 2 The Court has jurisdiction over the federal law claims by virtue of 28 USC §§ 1331 , 1337. The Court has jurisdiction over the Indirect Purchasers’ state-law claims through 28 U.S.C. § 1367 and 28 U.S.C. § 1332 (“CAFA”).

By Order dated May 7, 2013 (ECF 11), this Court consolidated, for pretrial purposes, (1) all pending indirect purchaser actions and any indirect purchaser actions filed thereafter (“Indirect Purchaser Action”) and (2) all pending direct purchaser actions and any direct purchaser actions' filed thereafter (“Direct Purchaser Action”). (ECF 11) Additionally, the Court ordered the Direct and Indirect Purchaser Actions to coordinate for pretrial purposes. These Direct and Indirect Purchaser Actions are the subjects of the instant Motions for Summary Judgement.

III. Plaintiffs’ Allegations in the Amended Complaints

On June 24-25, 2013, the consolidated putative classes of Indirect Purchaser Plaintiffs and Direct Purchaser Plaintiffs both filed Amended Consolidated Class Action Complaints (ECF 20 (Direct), 21 (Indirect)). Both complaints allege that beginning in 2011, Defendants in the domestic drywall industry violated the antitrust laws by conspiring to raise prices, restrict supply, and eliminate the long-standing pricing practice of providing job quotes.

Drywall, also known as gypsum wallboard, sheetrock, and wallboard, is the basic material used to form walls and ceilings in over 90% of all new residential and commercial structures. The domestic drywall industry is oligopolistic. Defendants account for more than 89% of U.S. drywall sales, and the four largest Defendants (USG, National, CertainTeed, and American) account for approximately 70% of those sales.

According to the complaints, prior to fall 2011, Defendants typically announced multiple price changes each year because of the commodity nature of wallboard and fluctuations in costs. These increases were typically announced through letters distributed to customers 30 to 45 days before the effective date of the increase. Additionally, since the 1980s, manufacturers had competed for price in part by providing “job quotes.” Through job quotes, manufacturers provided a quoted price to a *183 customer for a specific “job” and that price would remain the valid price throughout the duration of the job, regardless of market fluctuation.

Like most construction industries, the drywall industry was significantly injured by economic events in the early 2000s, including the 2008-2010 Recession. According to Plaintiffs, prices had generally been flat or declining from 2008 to 2011. Defendants had attempted to raise prices multiple times in 2010 and 2011, but Plaintiffs allege Defendants were unable to obtain a meaningful increase because of the economic climate and because of competition with each other.

Then, over the span of a few weeks in late September and early October 2011, six Defendant-manufacturers distributed letters announcing that they would implement a price increase on January 1, 2012 and that the new price would remain in effect for the entire year. In those letters, five of those Defendants either announced or expressed anticipation that the 2012 price would be as high as a 35% increase over current prices, the steepest increase announced in over ten years. Six Defendants also used the letters to announce the immediate elimination of job quotes. The only Defendant-manufacturer who did not announce the elimination of job quotes in its letter, USG, still unofficially eliminated or significantly curtailed new job quotes in fall 2011.

According to Plaintiffs, unlike the previous price-increases attempted earlier in 2011 and prior years, Defendants’ January 2012 price increase was effective for the entire year, even though there had been no meaningful increase in drywall demand or manufacturers’ costs. Plaintiffs allege these increases succeeded because Defendants had agreed to increase the prices, eliminate job quotes, and limit the supply of wallboard, in violation of antitrust laws.

Following the success of the 2012 price increase, Defendants again announced substantial price increase in fall 2012 to take effect in January 2013 and to last the duration of 2013. As with the 2012 increase, Plaintiffs allege that Defendants agreed to implement the January 2013 price increase and restrict supply in the months preceding the increase, and that Defendants succeeded in achieving these goals, thus increasing the cost of wallboard over what would have been charged in a truly competitive market.

IY. Discovery

In September 2013, the Court ordered a phased discovery process, limiting Phase I to a single issue: “Whether the record contains sufficient facts and/or opinions, admissible at trial, to allow a jury to find a violation of Section 1 of the Sherman Act, including whether there was an agreement between or among defendants.” (ECF 64).

After considerable discovery, a dispute arose when Defendants moved to compel Plaintiffs to answer so-called “contention interrogatories,” which asked for detailed facts. (ECF 99). After oral argument on April 22, 2014, the Court issued a Memorandum, noting that, based on the briefs that had been filed, the Plaintiffs had gathered a great deal of detailed factual information from the documents produced by Defendants. In re Domestic Drywall Antitrust Litig., 300 F.R.D. 228 (E.D.Pa.2014). The Court therefore concluded that the most expeditious way to encapsulate the discovery that had so far taken place was to require Plaintiffs to file a “contention statement,” indicating the detailed facts that supported their allegations. Id.

In this Memorandum, the Court noted the success that Plaintiffs had realized from sophisticated deployment of electronic discovery, and therefore, the Court con- *184 eluded that it would not be burdensome for Plaintiffs to “parlay” the facts learned in discovery into contention statements as an alternative to answers to interrogatories to which Defendants would then have to respond. Id.

The only other major discovery dispute concerned a third-party subpoena to a research group, Thompson, which is in the business of collecting information, analyzing trends, and making predictions on the economics of various businesses, including drywall manufacturers. This dispute resulted in a lengthy opinion setting forth the facts that Thompson would have to reveal, but provided protection for proprietary or truly confidential information. In re Domestic Drywall Antitrust Litigation, 300 F.R.D. 234 (E.D.Pa.2014).

V. Settling Defendants

In February 2015, Plaintiffs, both direct and indirect purchasers, reached settlements with a number of original Defendants: TIN, Inc. and the USG entities (including USG Corp., USG, and L&W 3 ). The Court granted preliminary approval of the settlements in March 2015 (ECF 183-186), and granted final approval and issued a final judgment order on August 20, 2015. (ECF 276-279).

Although the settling Defendants are not parties to the instant Summary Judgment Motions, this Memorandum will discuss some of the facts related to those original Defendants to the extent they are relevant to the pending motions by the remaining Defendants.

VI. Motions for Summary Judgment

On May 12, 2015, the non-settling Defendants moved for summary judgment, arguing that Plaintiffs had failed to uncover enough evidence to create a fact issue about whether Defendants entered a price-fixing conspiracy. Together, all Defendants filed a joint motion for summary judgment (ECF 206). Additionally, three Defendants filed supplemental motions for summary judgment to make Defendant-specific arguments: Lafarge (ECF 204), CertainTeed (ECF 207), and PABCO (ECF 205).

In accordance with Rule 56, each Defendant has submitted factual materials, including affidavits, declarations, and/or deposition testimony, “asserting that a fact” alleged by Plaintiffs (namely, that Defendants agreed to fix prices and make other price-related changes to the industry) cannot be proven, and “showfing]” the absence of a genuine dispute. Fed. R. Civ. P. 56(c).

In support of the joint motion, Defendants argue that the undisputed evidence reveals that Defendants were merely “following the leader,” which they argue is an expected and legal business practice in an oligopoly. Defendants paint the drywall industry in 2011 as suffering from a dire economic outlook for the manufacturers, who were still feeling the impact of the downturn in the construction industry from 2006-2008 and the Great Recession that begin in 2008. Defendants claim that by September 2011, they had tried various methods of raising prices and reducing costs, but were nonetheless experiencing substantial losses each year between 2008 and 2011.

Desperate to find solutions to improve its bottom line, on September 20, 2011, American became the first manufacturer to issue a letter to customers that (1) eliminated job quotes effective immediately and (2) announced a 35% price increase to take effect on January 1, 2012 and last *185 throughout all of 2012. Defendants submit declarations and depositions arguing that American’s announcement took the industry by surprise, but seeing an opportunity to improve profitability, Defendants followed American’s lead based on their independent conclusions that the changes announced by American were in the best interest of each individual manufacturer. Defendants argue that the same was true of the price increase that went into effect for 2013.

Each Defendant has satisfied its burden under Rule 56(c)(1) by filing declarations, and/or depositions of high-ranking corporate officers in which those officers deny the existence of, and their participation in, a price-fixing conspiracy. In reviewing Defendants’ evidence, the Court focuses on the declarations of those individuals who are the most relevant to this litigation, where possible. When declarations are not available, the Court relies on deposition testimony.

A. American

American submitted declarations from David Powers (President, American) and Keith Metcalf (Sr. VP of Sales, Marketing, and Distribution, American), both of which support American’s contention that it was not involved with any agreement to raise prices, eliminate job quotes, or restrict supply in either 2012 or 2013. 4 Exs. 48 (Powers decl.), 50 (Metcalf deck).

According to these declarations, Messrs. Powers and Metcalf worked together to develop American’s pricing strategy for 2012 and 2013, though Mr. Powers had final say over any pricing decisions. Ex. 48 ¶ 7; Ex. 50 ¶¶ 17-20, 33-35. Sometime in summer 2011, the two men worked to develop a new pricing strategy in light of American’s financial woes, 5 ultimately deciding to increase prices by 35% because “the larger the increase that American Gypsum announced, the better chance American Gypsum had of successfully implementing at least a portion of the increase.” Ex. 48 ¶ 31; accord Ex. 50 ¶ 19.

In an attempt to achieve this price improvement, Mr. Powers came up with the idea to eliminate job quotes. Ex. 48 ¶¶ 30-31; Ex. 50 ¶ 21. Messrs. Powers and Met-calf took their plan to Steven Rowley, President and CEO of Eagle Materials (American’s parent company), and Mr. Rowley made the suggestion to create a calendar-year price given the large size of the price increase. Ex. 48 ¶ 31; Ex. 50 ¶ 22. American announced the increase “in late September because builders like to know how much their costs are increasing at that time since they negotiate the price for their next year’s projects in October and November” and to provide “additional notice as a courtesy because of the change in job quote policy and the amount of the increase.” Ex. 50 ¶ 25.

In making the announcement, Messrs. Powers and Metcalf recognized that they were taking a risk and could lose market share, but “American Gypsum was willing to lose some market share if it could realize higher prices, and hence a profit, on the sales that remained.” Ex. 48 ¶ 32; Ex. 50 ¶ 20. And, if American “received negative feedback from [their] customers or if sales declined too much, then the company *186 always had the option of rescinding, modifying, or selectively implementing the in-crease_” Ex. 48 ¶32; accord Ex. 50 ¶ 20.

Messrs. Powers and Metcalf state that they did not discuss increase with any employee of any other wallboard manufacturer and that they independently reached the decision to increase prices in 2012 and 2018 and to eliminate job quotes. Ex. 48 ¶¶ 34-86; Ex. 50 ¶ 53. The declarations also assert that American competed with the other Defendants throughout the class period, “reducing] prices for individual customers on hundreds of occasions in order to meet prices offered by its competitors in 2012.” Ex. SO ¶ 30.

B. National

National submitted the declaration of Craig Weisbrueh (Sr. VP of Sales and Marketing, National), which supports National’s contention that it was not involved in any agreement in violation of the Sherman Act. Ex. 210 (Weisbrueh decl.). 6

According to Mr. Weisbruch’s declaration, he “did not enter into any agreement with any other drywall manufacturer regarding drywall prices, supply, or job quotes.” Ex. 210 ¶ 38. He learned of American’s price announcement on September 20, 2011 because two customers emailed him copies of the American letter. Ex. 210 ¶ 10. Prior to receiving the letters, Mr. Weisbrueh did not know of “any plans by American Gypsum to raise prices or end job quotes,” though, he “had heard secondhand reports from customers that USG had discussed with customers possibly ending USG’s practice of issuing job quotes.” Ex. 210 ¶ 11.

Upon receiving the American letter, Mr. Weisbrueh placed a moratorium on job quoting and called an emergency meeting of the sales leadership team to decide how to proceed. 7 Ex. 210 ¶ 13. The team concluded that it was in the best interest of National to follow American’s lead, though it decided to hold off on announcing the “hard dollar” amount of the increase until December 2011 so it could “collect competitive intelligence from [its] customers and form a more complete competitive picture.” Ex. 210 ¶¶ 14-19.

In 2013, Mr. Weisbrueh stated that National decided to raise prices by 30% because of its independent business judgment, which was based on information about what other manufacturers were doing, business conditions, and financial need. Ex. 210 ¶¶ 23-31.

The record contains substantial evidence documenting Mr. Weisbruch’s communications with research analysts. In his declaration, Mr. Weisbrueh clarified that he

never intended for anything [he] said to any industry analyst to be directly or indirectly conveyed to another drywall manufacturer. No analysts ever suggested to [him] that [the analyst] would con *187 vey anything [Mr. Weisbruch] said to another manufacturer. Nor did [he] ever ask an analyst to pass information [he] provided to any other manufacturer.

Ex. 210 ¶ 36.

C. Lafarge

Lafarge did not submit any declarations or affidavits, but every Lafarge employee that Plaintiffs deposed denied under oath that there was ever any discussion or agreement among Defendants regarding pricing or job quotes. Ex. 1102 (DeMay dep.) at 371:4-375:6; Ex. 59 (Preston dep.) at 197:15-202:6; Ex. 80 (Pearson dep.) at 291:17-22, 294:3-4; 297:11; Ex. 81 (Conlin dep.) at 181:9-14; Ex. 82 (Wilson dep.) at 145:25-150:3.

As with National, there is some evidence in the record of communications with Stephen DeMay (VP Sales, Lafarge) and a third-party analyst at Longbow. In their supplemental briefing, Lafarge cites the depositions of the research analysts at Longbow to support that Mr. DeMay never asked an analyst to pass information to another drywall manufacturer and the analysts never agreéd to pass such information along. Lafarge Suppl. Br. at 20.

D. PABCO

PABCO’s declarations of Ryan Lucchetti (President, PABCO) and Mark Burkham-mer (Dir. Sales — North, PABCO) both support PABCO’s assertion that it did not participate in any agreement in violation of the Sherman Act. 8 Exs. 93, 99.

According to his .declaration, Mr. Luc-chetti first learned of American’s September 2011 announcement from a customer, at which time Mr. Lucchetti forwarded to letter to Mark Burkhammer, Phil Kohl (VP Sales and Marketing, PABCO), Todd Thomas (Dir. Sales — South, PABCO), Foster Duval (Sales Manager, PABCO), and Emil Kopilovich (VP Manufacturing, PAB-CO). Ex. 93 ¶¶ 23-24. Mr. Duval responded to the email, informing Mr. Lucchetti, for the first time, that Mr. Duval had spoken with Mr. Powers (President, American) the day before. Ex. 93 ¶¶ 24-25.

Mr. Lucchetti explained that PABCO decided to follow the lead of its competitors in 2011 regarding the price increase and elimination of job quotes after it had received the increase letters from American, USG, National, CertainTeed, and Lafarge. Ex. 93 ¶29. Similarly, before announcing a price increase for 2013, PABCO waited to see what the other manufacturers would do, deciding to raise prices only after receiving announcements from American, National, CertainTeed, and Lafarge. Ex. 93 ¶ 42.

Mr. Lucchetti claims that he “did not use or rely on information obtained from [any gypsum industry research analysts]” when making his pricing decisions. Ex. 93 ¶ 59.

E.CertainTeed

Of all Defendants, CertainTeed submitted by far the most declarations, offering approximately 90 declarations from Cer-tainTeed leadership, employees, and customers. CertainTeed Exs. 1-50, 54-67, 69-94, 102-105. Almost all declarations deny knowledge of any agreement between Cer-tainTeed and another manufacturer. 9 Id. *188 Every declaration made by an employee of CertainTeed and its parent and sister companies also categorically denies entering into any agreement with any drywall competitor. CertainTeed Exs. 1-91, 93-94, 102-104.

According to the declaration of Steve Hawkins (VP Sales, CertainTeed), Certain-Teed first learned of American’s plans to increase prices and eliminate job quotes on September 20, 2011, when a customer emailed one of CertainTeed’s Regional Sales Managers a copy of the American letter. CertainTeed Ex. 2 ¶ 50. The letter was forwarded to Mr. Hawkins, who sent it to John Donaldson (President, Certain-Teed). Between September 20 and October 3, CertainTeed “went through a deliberative process.. .to come to a decision on the best approach for CertainTeed. And the deliberative process over [CertainTeed’s] specific price levels did not conclude until late December.” CertainTeed Ex. 1 ¶¶ 45-56.

Similarly, Mr. Hawkins recalls being surprised by American’s March 2012 announcement that it would likely raise its 2013 prices by 25-30%. 10 CertainTeed Ex. 2 ¶ 86. CertainTeed did not immediately start providing guidance because “it was too difficult to try to forecast industry conditions that far in advance” and because CertainTeed was unsure about “how much of the 2012 price increase would be realized.” Id. ¶ 87. In August 2012, senior leadership at CertainTeed met and concluded that they “would like to announce a 30% price increase for 2013.” Id. ¶ 88. On September 13, 2012, after receiving news that National had decided to raise its prices by 30% for 2013, CertainTeed announced the same increase for 2013. Id. ¶¶ 91-92.

VII. Summary Judgment Standard

To avoid summary judgment, Plaintiffs must show that a genuine issue of material fact exists as to whether Defendants entered into an anti-competitive agreement. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 , 764, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984).

“[A] non-movant’s burden in defending against summary judgment in an antitrust case is no different than in any other case.” Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 , 1230 (3d Cir.1993) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992)). Thus, as when reviewing any summary judgment motion, we must “view the facts and any reasonable inferences drawn therefrom in the light most favorable to the party opposing summary judgment,” considering the evidence as a whole and refraining from weighing evidence or making credibility determinations. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004) (quoting Intervest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 160 (3d Cir.2003)); accord Petruzzi’s, 998 F.2d at 1230.

To avoid summary judgment, Plaintiffs must submit evidence that when considered holistically, ‘“tends to exclude the possibility’ that the alleged conspirators acted independently” or interdependently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 , 764, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984)); accord In re Flat Glass, 385 *189 F.3d at 357 . “[A] nonmovant plaintiff in a section 1 case does not have to submit direct evidence, i.e., the so-called smoking gun, but can rely solely on circumstantial evidence and the reasonable inferences drawn from such evidence.” Petruzzi’s, 998 F.2d at 1230; accord Matsushita, 475 U.S. at 588 , 106 S.Ct. 1348 .

“The extent of what constitutes a reasonable inference in the context of an antitrust case, however, is somewhat different from cases in other branches of the law in that ‘antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.’ ” In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d Cir.1999) (quoting Matsushita, 475 U.S. at 588 , 106 S.Ct. 1348 ). “[I]n drawing favorable inferences from underlying facts, a court must remember that often a fíne line separates unlawful concerted action from legitimate business practices.” Petruzzi’s, 998 F.2d at 1230. “[E]vidence which is equally consistent with legal and illegal conduct, standing alone, cannot support an inference of antitrust conspiracy.” Id. at 1231 (emphasis added). 11

That said, Defendants are “not entitled to summary judgment simply because they demonstrated a plausible rationale for their behavior. Rather, the focus must remain on the evidence proffered by the plaintiff and whether that evidence ‘tends to exclude the possibility that [the defendants] were acting independently.’ ” Id. at 1232 (quoting Monsanto, 465 U.S. at 764 , 104 S.Ct. 1464 ).

After review of the relevant case law, the following sections will detail the undisputed facts regarding the industry prior to 2011 as well as Plaintiffs’ evidence that the manufacturers entered price-related agreements during 2011 and 2012, and related arguments. Subsequently, the Court will apply the asserted factual disputes to the legal principles, addressing the evidence against each Defendant in turn.

VIII. Legal Analysis in Oligopoly Cases

The antitrust laws prohibit only overt concerted action. In re Flat Glass Antitrust Litig., 385 F.3d 350, 359-60 (3d Cir.2004). Firms are not prohibited from making decisions that are based on the actions of other firms. Id.

It is undisputed that the market for drywall is oligopolistic. Oligopolistic markets tend to be interdependent. Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of Antitrust Law § 14.03 (Wolters Kluwer Law & Business, 4th ed. 2015 supp.). Interdependence is the market state in which market participants’ decisions depend on what the participants’ believe their competitors will do or their observations of competitors’ behavior. Ar-eeda & Hovenkamp, supra, § 14.03. Oli-gopolistic markets tend to be interdependent because competitors are more likely to consider each other’s actions in markets dominated by few sellers. Thus, though each firm in an oligopoly “may independently decide upon its course of action, any rational decision must take into account the anticipated reaction” of the other firms. In re Baby Food Antitrust Litig., 166 F.3d 112, 122 (3d Cir.1999). Because the firms are aware of what their competitors are doing, “oligopolists’ decisions may be interdependent,” meaning the decisions were made upon considering competitors’ *190 actions or reactions. Id. (quoting, Areeda, Antitrust Law § 1429 (1986)). But such decisions are nonetheless considered to have been “arrived at independently.” Id. (quoting, Areeda, Antitrust Law § 1429 (1986)).

Interdependence may sometimes result in conscious parallelism, in which the firms engage in the same behavior because they consider the actions of their competitors, but not because they have overtly agreed to engage in that behavior. In re Flat Glass, 385 F.3d at 359 . Conscious parallelism may enable “firms in a concentrated market [to] maintain their prices at supracompetitive levels, or even raise them to those levels, without engaging in any overt concerted action.” Id. Consciously parallel conduct does not violate antitrust laws. Id. Only actual agreement (i.e., a “conscious commitment to a common scheme designed to achieve an unlawful objective”) qualifies as an unreasonable restraint of trade in violation of antitrust law. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 , 764, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984).

For Plaintiffs to create a fact issue about whether Defendants entered an agreement, Plaintiffs must present evidence tending to exclude the possibility of independent conduct, including interdependent conduct (e.g., conscious parallelism). In re Flat Glass, 385 F.3d at 359 . In the Third Circuit, Plaintiffs may show that Defendants’ parallel conduct is attributable to an agreement (rather than interdependence) by showing three elements:

1. Defendants’ behavior was parallel;

2. Defendants were conscious of each other’s conduct and awareness was an element in their decision-making processes;

3. plus factors showing an actual agreement: (1) motive, (2) actions contrary to Defendants’ interests, and (3) traditional conspiracy evidence.

Id. at 360 n. 11. The third element’s list of plus factors is non-exhaustive, but those three factors have been relied on repeatedly by the Third Circuit. Id. at 360 .

In their Summary Judgment Motions, Defendants do not meaningfully contest the first two elements. In fact, their defense is that the manufacturers were doing the same things because they were “following the leader,” which essentially concedes the first two elements.

But the third element is disputed. Plaintiffs typically establish motive by showing market factors that would be conducive to collusion (e.g., market concentration, high barriers to entry, etc.). E.g., In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 398 (3d Cir.2015). Often it is plaintiffs’ inability to establish motive (rather than their ability to establish it) that will have the greatest impact on the plaintiffs’ case, because “the absence of any plausible motive to engage in the conduct charge is highly relevant to whether a ‘genuine issue for trial’ exists within the meaning of Rule 56(e).” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 596 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).

“[E]vidence of actions against self-interest means there is evidence of behavior inconsistent with a competitive market.” In re Chocolate Confectionary, 801 F.3d at 398 . For example, evidence that prices were raised despite no rise in demand or costs might indicate defendants are acting contrary to their interests. In re Flat Glass, 385 F.3d at 359 .

But in oligopolies, even a showing that the relevant market was ripe for collusion and that the defendants raised prices without a rise in demand or costs *191 will usually be insufficient to rule out interdependent conduct. Id. at 361 . “By nature, oligopolistic markets are conducive to price fixing and will often exhibit behavior that would not be expected in competitive markets. Therefore, these factors are neither necessary nor sufficient to preclude summary judgment, at least where the claim is price fixing among oligopolists.” 12 In re Chocolate, 801 F.3d at 398 . Nonetheless, courts must consider these first two factors because they are relevant and inform the inferences that might be drawn from plaintiffs’ other evidence. In re Flat Glass, 385 F.3d at 361 n. 12.

Traditional conspiracy evidence will generally be “[t]he most important evidence” in a price-fixing case involving an oligopoly. In re Flat Glass, 385 F.3d at 361 (quoting In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir.2002)). This category of evidence “may involve ‘customary indications of traditional conspiracy,’ or ‘proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings, conversations, or exchanged documents are shown.’ ” Id. at 361 (quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law, 243 (2d ed. 2000)).

There are five particular cases in which the Supreme Court and the Third Circuit have developed the law of the plus factors: Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 (3d Cir.1993); In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir.1999); In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir.2004); and In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383 (3d Cir. 2015). The Court has relied heavily on these cases in reaching its decision today.

A. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp.

In Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986), the plaintiffs, manufacturers and sellers of consumer electronic products, sued numerous competitor-manufacturers who were headquartered in Japan. Id. at 577 , 106 S.Ct. 1348 . The plaintiffs’ theorized that defendants had engaged in a “scheme to raise, fix and maintain artificially high prices for television receivers sold by [defendants] in Japan and, at the same time, to fix and maintain low prices for television receivers exported to and sold in the United States.” Id. at 577 , 106 S.Ct. 1348 (quoting In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 251 (3d Cir.1983)).

The Supreme Court held that plaintiffs had not submitted sufficient evidence to survive the defendant’s summary judgment motion, stressing that the Court was unwilling to make inferences of conspiracy from the ambiguous evidence offered by plaintiffs in light of defendants’ lack of motive to conspire. Id. at 593-94, 106 S.Ct. 1348 . The Court explained that “[l]aek of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.” Id. at 596-97 , 106 S.Ct. 1348 .

B. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc.

In Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 *192 (3d Cir.1993), the Third Circuit affirmed in part and reversed in part a district court’s grant of defendants’ summary judgment motion. The plaintiffs had accused the defendants, companies in the oligopolistic fat and bone rendering industry, of conspiring to allocate customers and entering various other agreements related to enforcement of the underlying conspiracy. Id. at 1228.

The court distinguished the Petruzzi’s plaintiffs from those in Matsushita , explaining that the Petruzzi’s plaintiffs’ theory of conspiracy made “perfect economic sense” because it would “enable [defendants] to make profits that the free market would not allow them, in both the short-run and the long-run.” Id. at 1232.

The court also concluded that two of the three defendants acted against self-interest in a way that was “not attributable to interdependence,” explaining that “[Heaving all other things the same, absent an agreement it does not make economic sense for defendants not to bid on an account unless they have some problem like capacity or they know that the existing price is too high.” Id. at 1245-46.

Although it appears that the plaintiffs’ showing of actions against self-interest might have been sufficient standing alone to avoid summary judgment, the plaintiffs had also submitted substantial traditional conspiracy evidence against two of the defendants, including testimony from employees referring to a “code” that defendants had to not solicit each other’s clients; recordings of secretly taped conversations of one of the defendants in which that defendant made reference to not taking other people’s accounts; and expert testimony concluding that the economic data was consistent with a conspiracy. Id. at 1233-34, 1236, 1244. Considering all of the factors, the Third Circuit reversed the grant of summary judgment for these two defendants.

As to the remaining defendant, the court acknowledged that defendant had “made claims of capacity problems” and there was evidence that the firm actually took some accounts from the other two defendants. Id. at 1245. Thus, the court affirmed summary judgment as to the third defendant.

C. In re Baby Food Antitrust Litig.

Six years after Petruzzi’s, the Third Circuit addressed allegations of price fixing in the oligopolistic baby food manufacturing industry, in In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir.1999). The plaintiffs argued that the defendants had engaged in an 18-year price-fixing conspiracy to “fix, raise, and maintain wholesale prices and price levels of baby food in the United States.” Id. at 116 . The district court granted the defendants’ summary judgment motion, and the Third Circuit affirmed. Id. at 116 .

The plaintiffs had submitted an expert report to show that the defendants had motive to conspire and acted against self-interest. Id. at 134 . But the court gave the expert report little to no weight given the expert’s admission that his opinion was based on the assumption that defendants had conspired and that he had not “looked at whether the baby food industry fits the model of manufacturers following in their pricing practices the price leader.” Id.

As further evidence of the defendants’ actions against self-interest, the plaintiffs had also relied on (1) an internal defendant memorandum in which an employee referred to “our truce” and (2) one manufacturer’s unwillingness to enter into new markets. As to the “truce” reference, the court explained that “the single use of the term in a highly competitive business environment and in the face of continuing fierce competition is as consistent with independent behavior as it is with price fix *193 ing.” Id. at 127 . As to the manufacturer’s choice not to enter new markets, the court noted that only that manufacturer “was in a position to decide whether it was in- its best interest to make such commitments” in light of the “substantial capital expenditures and resource commitments” that entering a new market would require. Id.

The court also placed little weight on the plaintiffs’ traditional conspiracy evidence, which included documentation of industry chatter, manufacturer notes about anticipated competitor price movements, and a manufacturer’s notes indicating its intent to achieve “parity” with a competitor’s price. Id. at 130-31,133 .

D. In re Flat Glass Antitrust Litig.

In In re Flat Glass Antitrust Litigation, 385 F.3d 350 (3d Cir.2004), the plaintiffs argued that manufacturers in the oligopo-listic flat glass industry had conspired to fix the prices of flat glass and auto replacement glass. Id. at 354 . 13 All of the defendants except one, PPG, settled with plaintiffs. PPG then filed for summary judgment, which the district court granted. Id. at 353 . The Third Circuit reversed the grant of summary judgment as to the flat glass allegations, but affirmed summary judgment as to the alleged auto replacement glass price-fixing conspiracy. Id. at 356, 378 .

In reversing summary judgment, the court specifically considered the plaintiffs’ plus-factor arguments as to motive, actions against self-interest, and traditional conspiracy evidence. The court concluded that the plaintiffs had shown motive in part because the demand for flat glass was in decline at the time of the alleged conspiracy and the industry experienced excess capacity. Id. at 361 . The court also determined that plaintiffs had shown that the defendants had acted against their self-interest because “no evidence suggested] that the increase in list prices was correlated with any changes in costs or demand.” Id. at 362 . Nonetheless, the court held that although the plaintiffs’ first two plus factor allegations indicated “that the price increases were collusive,” the plaintiffs had failed to show “whether the collusion was merely interdependent or the result of actual agreement.” Id. at 362 . Thus, the court turned to traditional conspiracy evidence.

The Flat Glass court concluded that plaintiffs’ traditional conspiracy evidence was sufficient. Plaintiffs submitted evidence showing that the manufacturers were in possession of each other’s price information in advance of announcements, which the court distinguished from the price exchange evidence submitted by the Baby Food plaintiffs because “the exchanges of information [in Flat Glass were] more tightly linked with concerted behavior and therefore they appearfed] more purposive.” Id. at 368-69 . Moreover, “several of the key documents [in Flat Glass] emphasize[d] that the relevant price increases were not economically justified or supportable, but required competitors *194 to hold the line.” Id. at 369 . Other docu7 ments suggested knowledge of “the plans of multiple competitors,” as opposed to just a single one. Id. at 369 . And “[predictions of price behavior were followed by actual price changes.” Id. at 369 .

E. In re Chocolate Confectionary Antitrust Litig.

Most recently, the Third Circuit clarified the plus-factor analysis in In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383 (3d Cir.2015). Direct and indirect purchaser classes sued the three major chocolate manufactures, who together controlled more than 75% of the domestic chocolate market. Id. at 391 . The court concluded the defendants had motive to conspire “[gjiven the market concentration and high barriers to entry.” Id. at 398 . The court relied primarily on the plaintiffs’ experts to conclude that defendants had acted against their self-interest, relying on the experts’ opinions that the cost increases in the chocolate market could not explain the price increases. Id. at 399 . But, as stated in Flat Glass, the court explained that “evidence of a price increase disconnected from changes in costs or demand only raises the question: was the anticompeti-tive price increase the result of lawful, rational interdependence or of an unlawful price-fixing conspiracy?” Id. at 400 . The court concluded the plaintiffs had failed to point to evidence that went beyond interdependence. Id. at 401 .

Thus, as with Flat Glass, the most important evidence was the traditional conspiracy evidence. But here, the court found that evidence wanting. There were two internal memos from Hershey reflecting that Hershey had advance notice of price increases scheduled by Mars and Nestle USA. Id. at 407-08 . But the court did not give much weight to those documents because the plaintiffs had “no direct or strong circumstantial evidence that the information came from Hershey’s competitors, much less their upper-l'evel executives.” Id. at 408 . There were three email exchanges among the competitors, but the court did not give them much weight, explaining that “sporadic communications among individuals without pricing authority are insufficient to create a reasonable inference of a conspiracy.” Id. at 409 . The court also noted that the timing of the communications and the actual price increases were not suspicious. Id. at 407, 409 . Plaintiffs attempted to rely on defendants’ departure from their pre-conspiracy conduct as traditional evidence, but the changes they cited were not “radical” or “abrupt” enough to create an inference greater than interdependence. Id. at 410 (quoting Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 935 (7th Cir.2000)). 14

IX. Undisputed Background Facts

In antitrust eases, it is often helpful to understand the mechanics of the industry.

A. Wallboard Industry Background

Wallboard is a building-material panel consisting of a gypsum core pressed between sheets of paperboard. It is used in the construction of interior walls and ceilings for residential and commercial buildings. There are a variety of types of wallboard, varying in thickness, length, core formulations, and applications. Some product lines include different properties, such as fire-resistance, mold-resistance, and impact-resistance. The core ingredient of *195 wallboard is gypsum, but other costs for manufacturers include paper, energy, and labor.

1.Market Share

From 2010 through 2012, there were eight manufactures of gypsum tyallboard located in the United States: American, CertainTeed, Lafarge, National, PABCO, TIN, USG, and Georgia-Pacific. 15 Manufacturer market share varied from region to region, but nationally each manufacturer’s market share in 2011 was approximately 16 as follows:

• USG: 24-26%

• National: 21-26%

• CertainTeed: 10.3%-11.7%

• American: 10%

• Lafarge: 10%

• Georgia-Pacific: 10%

• TIN: 7% 17

There are multiple distribution channels in the wallboard industry, and Defendants typically sell to the following customers, though no Defendant sells to all of the customer types: (1) gypsum specialty dealers, 18 (2) independent building material dealers 19 and lumber yards, (3) mass merchandisers, and (4) manufactured housing, (5) lumber yard buy-groups, 20 (6) two-step distributors, 21 (7) manufacturers that use the drywall to fabricate specialty products, and (8) contractors. Plaintiffs in the Direct Purchaser Action belong to one of the customer groups. Plaintiffs in the Indirect Purchaser Action purchased wallboard from at least one of the listed customer groups.

2. Demand

Demand for wallboard is directly related to the level of activity in the construction industry. The early 2000s saw the end of the housing boom in 2006 and the Great Recession. As a result, demand for new residential and commercial construction in 2011 was approximately 65% less than it was in 2006. The downturn in the construction industry caused the prices of manufacturers’ wallboard products to drop precipitously. As a result, manufacturers shuttered some of their plants. The total number of operating plants in the United States in the mid-2000s was 77 plants, but during 2011 and 2012, there were only 60 operating plants. Ex. 123.

3. Capacity

The parties have offered two ways to measure capacity (and thus supply) in the wallboard industry. Theoretical, or “nameplate,” capacity is the capacity of a wallboard plant if it runs seven days a week, 24 hours a day. The theoretical capacity of the entire wallboard industry in the United States is approximately 33.5 billion square feet per year. Effective capacity, or *196 “crewed capacity,” is the capacity of a wallboard plant as it is presently staffed. Defendants urge that the proper measure of supply in the wallboard industry is as a percentage of the crewed capacity. Ex. 48 (Powers decl.) ¶ 39; Ex. 22 (Salah dep.) at 196:4-16, 197:23:11. Plaintiffs, with the support of their experts, counter that the proper measure of supply is as a percentage of the theoretical capacity. Pis. Response Br. at 93-94.

4. Job Quotes

At least prior to 2011, manufacturers offered their customers a variety of rebates, discounts, credits, and other price reductions. Thus, regardless of the list price, the actual price that customers paid widely varied.

One price negotiation tool was “job quoting.” The practice of job quotes began over 30 years ago to help commercial contractors bid on large jobs. Typically, manufacturers provided job quotes for commercial jobs requiring one million square feet of wallboard or more. Manufactures gave distributors a quote for the entire job (“job quote”) so that the distributor’s customers, the contractors, could big on projects 12 to 18 months in advance. The use of job quotes grew from their inception in the 1980s, and by the 1990s, they were no longer limited to large commercial projects. 22 The job quote practice was easily abused to the detriment of at least some of the manufacturers. 23 The abuses were exacerbated by the recession. Additionally, job quotes were a one-way liability for manufacturers because customers were not required to buy on the quote. Thus, if the market price dropped below the quote price, customers could simply buy drywall using the market price.

B. Trade Association Membership & Meetings

Plaintiffs have noted numerous instances in which Defendants’ senior leadership were in the same place at the same time. For instance, the drywall and building materials industries have trade shows and conventions that are attended by customers, manufacturers, and dealers. 24 And during the class period, all Defendants belonged to the same trade association, the Gypsum Association, which hosted events attended by Defendants. 25

*197 But it is now cannon that evidence of competitors meeting together, without more, is insufficient to raise inferences of conspiracy without additional evidence. E.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 567 n. 12, 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007); In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 409 (3d Cir.2015); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 , 1242 n. 15 (3d Cir.1993); Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 473 (3d Cir.1985). That said, opportunities to conspire may be probative of a conspiracy when meetings of Defendants are closely followed in time by suspicious actions or records. See In re Text Messaging Antitrust Litig., 782 F.3d 867, 878 (7th Cir.2015) (explaining that plaintiffs’ evidence of opportunities to conspire would have been “more compelling if the immediate sequel to any of these meetings had been a simultaneous or near-simultaneous price increase by the defendants”); Fragale & Sons Beverage Co., 760 F.2d at 474 (concluding, in a non-oligopoly case, that plaintiffs had submitted sufficient evidence to survive summary judgment in a refusal-to-deal conspiracy, where the plaintiff showed that a dealer-defendant agreed to sell to plaintiff and later repudiated that agreement and that an intervening meeting took place between the dealer-defendant and plaintiffs direct competitor); In re Linerboard Antitrust Litig., 504 F.Supp.2d 38, 59 (E.D.Pa.2007) (“Importantly, plaintiffs do not offer their evidence of opportunity to conspire in isolation.”).

To the extent Plaintiffs have submitted evidence of opportunities to conspire that are closely linked in time with suspicious documents or changes in pricing practices, the Court will consider that evidence below. But, the Court will not give weight to any evidence that shows a bare opportunity to conspire, without more.

X. Bourjaily and Application of the Co-Conspirator Hearsay Exception

In considering whether Plaintiffs have submitted sufficient evidence to survive summary judgment, the Court may consider only admissible evidence. Fed. R. Civ. P. 56(c). This case involves multiple Defendants who are alleged to have been in a conspiracy. And most of Plaintiffs’ evidence involves internal corporate communications from which Plaintiffs contend agreement might be inferred, rather than direct communications among Defendants. As such, the chief evidentiary question the Court must address is whether the hearsay statements made by one Defendant are admissible against the other Defendants. More specifically, are the statements made by one Defendant attributable to all Defendants by virtue of the co-conspirator exception to the rule against hearsay?

In answering this question, the Court finds it helpful to review the evolution of the co-conspirator exception and its application in the Third Circuit, particularly in civil antitrust cases.

A. Brief History of the Co-Conspirator Exemption

Before the adoption of the Federal Rules of Evidence in 1975, which codified the co-conspirator hearsay exemption, federal courts had long applied the doctrine that the declarations of one conspirator made to a third party are admissible against his co-conspirators so long as the declarations were made in furtherance of the objects of the conspiracy. See Lutwak v. United States, 344 U.S. 604, 617-18 , 73 S.Ct. 481 , 97 L.Ed. 593 (1953); Logan v. United States, 144 U.S. 263, 308-09 , 12 S.Ct. 617 , 36 L.Ed. 429 (1892).

*198 In Glasser v. United States, 315 U.S. 60, 74 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942), the Supreme Court winnowed the viability of the co-conspirator exemption by providing that “such declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy.” “Otherwise,” the Court continued, “hearsay would lift itself by its own bootstraps to the level of competent evidence.” Id. The Court reiterated this so called “bootstrapping-rule” again in United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974). In Nixon , the Court provided that “[declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one of more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy.” Id. at 701 , 94 S.Ct. 3090 (emphasis added). In a footnote, the Court explained “by independent evidence” as requiring “substantial, independent evidence of the conspiracy, at least enough to take the question to the jury.” Id. at 701 n. 14, 94 S.Ct. 3090 . 26

B. Impact of Federal Rules of Evidence

With the advent of the Federal Rules of Evidence in 1975, what had been a clearly articulated prohibition on bootstrapping was called into question in the Circuit Courts. Federal Rule of Evidence 801(d)(2)(E), which codifies the co-conspirator exception, provides that a statement is not hearsay if it is “offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.” Demonstrating a conspiracy, and the declarant’s and non-offering party’s participation therein, are preliminary questions of fact for purposes of admissibility under Rule 801(d)(2)(E). Fed. R. Evid. 104(a). Rule 104(a) provides that “[t]he court must decide any preliminary question about whether... evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” Id.

Accordingly, courts began to question the prohibition on bootstrapping, musing that, under the new Rules, a court could consider the proffered hearsay statements, in addition to the independent evidence of conspiracy, in determining whether a conspiracy existed .for purposes of the co-conspirator exception. See, e.g., James R. Snyder Co., Inc. v. Associated Gen. Contractors of Am., Detroit Chapter, Inc., 677 F.2d 1111 , 1117 (6th Cir.1982) (“The out-of-court statements themselves now may be used to convince the trial judge of the conspiracy’s existence and the defendant’s participation in it.”); United States v. Petrozziello, 548 F.2d 20 , 23 n. 2 (1st Cir.1977) (recognizing that, while Glasser and earlier case law rejected bootstrapping, the new Rule “suggests that a conspiracy may be proved by the very statement seeking admittance.”).

The Third Circuit engaged in an extended analysis of the effect the new Federal Rules of Evidence had on the Glasser rule In re Japanese Elec. Prods. Antitrust Litig. (Japanese Elec. Prod.), 723 F.2d 238, 259-66 (3d Cir.1983), reversed on other grounds sub nom. Matsushita Elec. Indus. *199 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). 27 In that case, the plaintiffs, manufacturers and sellers of consumer electronic products, sued numerous competitor-manufacturers, most of whom were headquartered in Japan. Japanese Elec. Prod., 723 F.2d at 250 . The plaintiffs alleged, among .other things, violations of Sherman Act §§ 1 and 2. Id. The district court judge 28 made evidentiary rulings excluding most of the plaintiffs’ evidence that had been proffered in opposition to the defendants’ summary judgment motions. The Court applied the Glasser rule and concluded that there was no admissible evidence that could raise an issue of fact as to the existence of a conspiracy in violation of Sherman Act § 1. Id. at 256. Thus, the court granted summary judgment on all of the plaintiffs’ remaining claims and entered final judgment in favor of the defendants. Id. at 256-67.

On appeal, the plaintiffs challenged the district court’s exclusion of the purported statements of co-conspirators. Id. at 260-66. The plaintiffs argued that the trial court erred by applying the Glasser rule because the Federal Rules of Evidence had abrogated the Glasser rule. Id. at 260. The Third Circuit disagreed, concluding that neither Federal Rule of Evidence 104(a) nor Federal Rule of Evidence 801(d)(2)(E) “was intended to change the settled law that there must be independent proof aliunde of the existence of and membership in a conspiracy before coconspirator statements are admissible against a party.” Id. at 261.

As this truncated history demonstrates, the Courts of Appeal were in disagreement as to whether the enactment of the Federal Rules of Evidence had indeed rendered the Glasser rule obsolete. The Supreme Court finally had cause to confront the issue in Bourjaily v. United States, 483 U.S. 171 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987).

C. Bourjaily Ends the Rule Against Bootstrapping

In Bourjaily , which is the Rosetta Stone for determining admissibility of co-conspirator statements, the Supreme Court squarely confronted the issue of “whether the court must determine by independent evidence that the conspiracy existed and that the defendant and the declarant were members of the conspiracy” for purposes of determining admissibility under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 173 , 107 S.Ct. 2775 . The facts of Bourjaily were straightforward:

In May 1984, Clarence Greathouse, an informant working for the Federal Bureau of Investigation (FBI), arranged to sell a kilogram of cocaine to Angelo Lo-nardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonar-do stated in a tape-recorded telephone conversation that he had a “gentleman friend” who had some questions to ask about the cocaine. In a subsequent telephone call, Greathouse spoke to the “friend” about the quality of the drug and the price. Greathouse then spoke again with Lonardo, and the two arranged the details of the purchase. They *200 agreed that the sale would take place in a designated hotel parking lot, and Lo-nardo would transfer the drug from Greathouse’s car to the “friend,” who would be waiting in the parking lot in his own car. Greathouse proceeded with the transaction as planned, and FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilogram of cocaine into petitioner’s car in the hotel parking lot. In petitioner’s car, the agents found over $20,000 in cash.

Id. at 174 , 107 S.Ct. 2775 .

Mr. Bourjaily was charged with conspiring to distribute cocaine and possession of cocaine with intent to distribute. Id. At trial, the Government introduced, over Mr. Bourjaily’s objection, Mr. Lonardo’s telephone statements about his “friend’s” participation in the contemplated transaction. Id. In holding that Mr. Lonardo’s out-of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay, the district court found that the Government had established, by a preponderance of the evidence, that a conspiracy involving Messrs. Lonardo and Bourjaily existed. Id. In so finding, the district court considered both the events in the parking lot and Lonar-do’s out-of-court telephone statements. Id. Mr. Bourjaily was ultimately convicted on both counts. Id.

On appeal, Mr. Bourjaily argued that the district court erred by considering Mr. Lonardo’s out-of-court statements to determine whether a conspiracy existed and whether the defendant was a member of it for purposes of Rule 801(d)(2)(E). Id. at 176 , 107 S.Ct. 2775 . Mr. Bourjaily argued that the district court violated a strict reading of Glasser , namely that “a court should not consider hearsay statements at all in determining preliminary facts under Rule 801(d)(2)(E). Id. at 177 , 107 S.Ct. 2775 .

The Supreme Court acknowledged that a majority of the Courts of Appeals had adopted this strict interpretation of Glas-ser, but noted that “[b]oth Glasser and Nixon .. .were decided before Congress enacted the Federal Rules of Evidence in 1975.” Id. at 177, 107 S.Ct. 2775 . According to the plain meaning of Rule 104(a), courts may make preliminary factual determinations “by considering any evidence it wishes, unhindered by considerations of admissibility.” Id. at 178 , 107 S.Ct. 2775 . The Court acknowledged that “[o]ut-of-court statements made by anyone, including putative co-conspirators, are often hearsay. Even if they are, they may be considered, Glasser and the bootstrapping rule notwithstanding.” Id. The Court in Bourjaily did not decide whether a trial court could rely solely upon hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. Id. at 181 , 107 S.Ct. 2775 . Rather, the Court’s holding merely provided that a court, in making a preliminary factual determination pursuant to Rule 801(d)(2)(E), can consider the proffered hearsay statements themselves. Id. A subsequent amendment to the Federal Rules of Evidence in 1997 clarified that “[t]he statement must be considered but does not by itself establish.. .the existence of the conspiracy or participation in it under (E).” Fed. R. Evid. 801(d)(2)(E).

D. Admissibility of Hearsay Statements in Antitrust Suits Under the Co-conspirator Exception Post-Bourjaily

In the Third Circuit post-Bomja-ily, “[i]n order for an out-of-court statement to be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; *201 (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 375 (3d Cir.2004) (quoting United States v. Ellis, 156 F.3d 493, 496 (3d Cir.1998)). A district court’s preliminary finding will not be disturbed on appeal unless it is clearly erroneous. Bourjaily, 483 U.S. at 181 , 107 S.Ct. 2775 ; City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998). Alternatively, a district court has “considerable discretion” to admit the statements conditionally, subject to their later being connected up. United States v. Mobile Materials, Inc., 881 F.2d 866, 869 (10th Cir.1989) (quoting United States v. Hernandez, 829 F.2d 988 , 994 n. 6 (10th Cir.1987)).

In the antitrust context, plaintiffs and prosecutors commonly seek to introduce the statements of purported eo-conspira-tors that help to establish the existence of an agreement in violation of the Sherman Act. Two cases following the Supreme Court’s decision in Bourjaily explain the Third Circuit’s use of the co-conspirator exception in civil antitrust cases.

1. Big Apple BMW, Inv. v. BMW of N. Am., Inc.

In Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir.1992), applicants for several BMW franchises (“applicants”) sued the U.S. distributor for BMW automobiles (“BMW distributor”), alleging that the BMW distributor and its dealers conspired to exclude the applicants from becoming dealers, in violation of the Sherman Act.

The applicant-plaintiffs based their claim on the fact that they had been denied BMW dealerships in the Tri-State area on each of the three times they had applied for them. The applicants argued that the area dealers, who would have been the applicants’ competitors, persuaded the BMW distributors to deny the applicants’ application so that the dealers could avoid price competition. Although the evidence underlying the first two denials was relevant to the suit, the Third Circuit addressed the co-conspirator exception to the hearsay rule in connection with only the evidence underlying the third denial.

The third denial occurred after the applicants had reached a written buy-sell agreement with Philadelphia BMW dealer Irvin Green. Id. at 1370 . This agreement was made contingent on the applicants securing BMW and Volkswagen franchises by a certain date. Id. at 1371 . But the BMW distributor once again denied the applicants’ franchise application, and Mr. Green ultimately sold his BMW franchise to an existing BMW dealer. Id. at 1372 .

The applicants claimed that they were denied a BMW dealership due to area dealers’ concerns about price competition. In support of this theory, the applicants proffered the testimony of Bruce Braver-man, the applicants’ lease manager. Id. at 1372 . Mr. Braverman’s testimony took two forms, both of which the district court excluded as inadmissible hearsay.

First, Mr. Braverman testified at his deposition to several statements allegedly made to him by Don Mitchell, a BMW leasing representative:

Don Mitchell told me that the BMW dealers in the area would not let [the applicants] get the franchise because they were afraid that [the applicants’] reputation of selling cars cheaper than everybody else was not something that [the BMW dealers] wanted to get involved with. [The BMW dealers] didn’t want to be involved in price competition. They wanted to keep their price levels where they were and that [sic] they were going to do what they could to make sure that [the applicants] did not get the franchise.

*202 Id. Furthermore, Mr. Braverman testified that BMW’s leasing representative

indicated to [Mr. Braverman] that he had spoken to dealers. The dealers, it was the dealers who did not want [the applicants] to get the franchise, it wasn’t BMW who had rejected them.... [I]t seemed like it was a conspiracy of the dealers in the tri-state area that didn’t want [the applicants] to get that franchise. I don’t think BMW cared.

Id. Second, the applicants proffered a memorandum memorializing Mr. Braver-man’s alleged conversation with the BMW leasing agent. 29

The Third Circuit reversed the district court’s evidentiary finding, concluding first that the leasing agent’s statement was made as a representative of BMW subsidiaries and therefore bound the BMW distributor as the corporate parent. Id. at 1373 . Accordingly, under Rule 801(d)(2)(D), Mr. Mitchell’s statements to Mr. Braverman were admissible. Id.

The Third Circuit then applied the co-conspirator exception to hold that the various dealer statements 30 to the BMW leasing agent were also admissible. Id. at 1374 . The court cited Bourjaily for the premise that a court “may look to independent evidence plus the statement itself for evidence of a conspiracy.” Id. The court also explained that “mere association” would be insufficient evidence to establish the existence of a conspiracy and the declarant and defendant’s connection to it, but “timing, circumstances, or a series of meetings,” may prove sufficient. Id. at 1372-74. With these principles in mind, the court concluded that “the [applicants] ha[d] proffered evidence to show concerted action in violation of the Sherman Act,” and that therefore, “they ha[d] demonstrated the requisite conspiracy for admissibility under Rule 801(d)(2)(E).” 31 Id. Thus, the Third Circuit concluded that the evidence was admissible. Id. at 1374.

2. In re Flat Glass Antitrust Litig.

The Third Circuit most recently addressed Rule 801(d)(2)(E) in the context of civil antitrust suits in In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir.2004). Although the court affirmed summary judgment as to the alleged conspiracy to fix automotive replacement glass, it reversed as to the flat glass price-fixing conspiracy. Id. at 369 . After summarizing the evidence that, when considered as a whole, allowed the plaintiffs to move forward on their flat glass price-fixing claim against the defendant-appellee PPG, the Court turned to a number of evidentiary rulings the district court had made. Id. at *203 370 . One such ruling was the district court’s exclusion of two categories of handwritten notes produced by Ronald Skeddle, the former President and Chief Executive of Libbey-Owens-Ford Company (“LOF”), a flat glass manufacturer that was not party to the suit.

On appeal, the Third Circuit considered whether the notes were admissible under the co-conspirator exception to the rules against hearsay. In making its Rule 104 finding, the district court had concluded that there was insufficient evidence from which a jury could conclude that PPG entered into an agreement to fix prices. In reviewing the district court’s grant of summary judgment, the Third Circuit had already concluded that a jury could find that PPG entered into an agreement. Based on the Third Circuit’s opinion in Big Apple BMW, one would have expected this to be the end of the matter.

But, the Third Circuit explained that it could not conclude whether the district court abused its discretion, explaining that “simply because a jury could find by a preponderance of the evidence that PPG entered into a conspiracy, it is not the case that the District Court must find that plaintiffs showed by a preponderance of the evidence that PPG entered into an agreement.” Id. at 375-76 . The Court then stated:

Any particular factual determination requires making a number of more particularized factual determinations and weighing the relevant importance of those determinations. And two factfin-ders could feasibly reach different conclusion [sic], especially under a preponderance of the evidence standard.

Id. at 376 .

In so clarifying, the Third Circuit appeared to guard against the kind of bootstrapping employed in Big Apple BMW. However, the Court closed its discussion of the co-conspirator exception with a reminder that, “[t]o be sure, however, ‘the Federal Rules of Evidence are to be liberally construed in favor of admissibility.’ ” Id. (quoting United States v. Pelullo, 964 F.2d 193, 204 (3d Cir.1992)).

E. Role of the Co-Conspirator Exception in this Case

It is Plaintiffs’ burden to show, by a preponderance of the evidence, that Rule 801(d)(2)(E) requirements have been met. Abiding by the Third Circuit’s holding in Flat Glass on the district court’s obligations under Rule 104, this Court -will make Rule 104 findings relevant to the admissibility of statements under Rule 801(d)(2)(E). Those findings will be made following this Court’s presentation of the chronology of material facts, and Rule 104 findings will be made separately from and prior to any findings On Plaintiffs’ ability to withstand the summary judgment motion.

The Rules of Evidence are to be liberally construed in favor of admissibility. To that end, the Court notes that it “may admit the proposed evidence on the condition that the proof be introduced later.” Fed. R. Evid. 104(b). And the Court recognizes its wide berth in conditionally admitting co-conspirator statements at the summary judgment stage. See United States v. Mobile Materials, Inc., 881 F.2d 866, 869 (10th Cir.1989). 32 The Court will exercise this option.

XI. Chronology of Material Facts

Although Rule 56 focuses on factual disputes, in this case, most facts are undisputed. The facts presented, in both supporting *204 and contesting Defendants’ motions, come largely from Defendants’ own documents, employee depositions, and/or memoranda of telephone calls made by various parties’ representatives or third parties. The declarations filed by Defendants in support of their motions are not directly contradicted; instead, Plaintiffs cite facts from other materials that they assert would allow contradictory inferences and conclusions.

Thus, the Court’s task becomes one of determining what inferences a jury could make from all facts, disputed and undisputed. This analysis is mostly about what inferences are reasonable. “[T]he acceptable inferences which can be drawn from circumstantial evidence vary with the plausibility of the plaintiffs’ theory and the dangers associated with such inferences.” Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 , 1232 (3d Cir.1993). As previously discussed, Plaintiffs must submit sufficient evidence to permit an inference of conspiracy that is reasonable in the context of an oligopolistic market, which can prove to be a demanding standard.

Before reaching the permissible inferences, the Court finds it helpful to present a timeline of the events of this case without drawing any inferences. Plaintiffs submitted a separate statement of facts along with supporting record evidence. The Court has distilled that evidence into a timeline of what the Court believes contains Plaintiffs’ most persuasive evidence.

After presenting the chronology, the Court will make Federal Rule of Evidence 104 findings and address Plaintiffs’ arguments about the inferences that can be drawn from the facts discussed in the chronology.

A. February — October 2011

1. 2/18/2011: Craig Weisbruch (Sr. VP of Sales and Marketing, National) indicated in an internal National email that Longbow had shared competitor information with him. Ex. 1266.

As early as February 2011, it appears that Longbow would share information among competitors. In an internal National email between Craig Weisbruch and Tom Nelson (Pres, and CEO, National), Mr. Weisbruch wrote:

I just finished a long conversation with the guys from Longbow. If I were to summarize 45 minutes, it would be.. .the dealers tell them that the manufacturers are dead serious about this increase and they are going to get it. And, our smaller competitors are telling Longbow that they are serious about this one, and while they don’t feel comfortable leading future increases, they are more than ready to follow them.

Ex. 1266.

2. 2/30/2011: Zoran Miling (Analyst, Longbow) emailed Craig Weis-bruch (Sr. YP Sales and Marketing, National) to share “some commentary from a few of [National’s] peers” (Eagle and USG). Ex. 1276.

Mr. Miling (Analyst, Longbow) wrote that Longbow had “held our Construction Materials Conference last week and wanted to pass along some commentary from a few of your peers.” Ex. 1276. He then *205 disclosed information regarding USG and Eagle Materials, including those companies’ impressions of recent price increase attempts. Ex. 1276. Mr. Weisbruch responded that he “appreciate^] the insight.” Ex. 1276.

3.4/3/2011-4/7/2011: Representatives from all Defendants attended the Las Vegas Trade Meeting. PSOF ¶ 448. 33

Both parties agree that the attendees included, at least, David Bates (American), Keith Metcalf (American), Keith Metcalf (American), Matt Byrne (USG), Steve Bjorklund (USG), Christopher Griffin (USG), Scott Blanchard (USG), Rob Wa-terhouse (L&W), Donna Sue Mims (PAB-CO), Mark Burkhammer (PABCO), Philip Kohl (PABCO), Ryan Lucchetti (PABCO), Todd Thomas (PABCO), Bill Campbell (TIN), Jay Wyatt (TIN), Stephen Raley (TIN); Jay Conlin (Lafarge), Stephen De-May (Lafarge), Isabelle Shiffrin (Lafarge), Robbe Pearson (Lafarge), Wayne Wilson (Lafarge), Bill Kelly (National) Scott Crutchfield (National), Craig Weisbruch (National), Duane Wood (National), Kurt Withrock (National), John Donaldson (Cer-tainTeed), Steve Hawkins (CertainTeed). Defs. Resp. PSOF ¶ 448.

Plaintiffs also argue that Bill Mazurie (CertainTeed) and John Mixson (National) attended, and they presented evidence that these two were at least pre-registered for the event. Ex. 1732. Defendants argue these two did not attend, though they present no evidence to support that contention.

The parties also dispute whether the meeting was held from April 3-7 or April 2-7. Defs. Resp. PSOF ¶ 448.

4. 4/27/2011: Keith Metcalf (Sr. VP of Marketing, Sales, and Distribution, American) sent internal email indicating that there might be “a movement from all manufacturers to eliminate job quotes.” Ex. 1165.

Susan Hall (Dir. of Sales, South, American) sent an email to Keith Metcalf (Sr. VP of Marketing, Sales, and Distribution, American) to ask a question related to how to quote jobs going into calendar year 2012. Ex. 1165. Mr. Metcalf responded: “Please don’t quote anything in 2012. We may have a movement from all manufacturers to eliminate quotes.” Id.

When deposed, Mr. Metcalf could not recall the source of the information that caused him to write that passage in April 2011. Ex. 1124 (Metcalf dep.) at 140:19-143:11.

5. 6/30/2011: Zoran Miling (Analyst, Longbow) sent Craig Weisbruch (Sr. VP Sales and Marketing, National) an email “to pass along some commentary from a few of your peers,” namely, USG and American. Ex. 1276.

6. 7/8/2011: Longbow issued a report that directly quoted from an analyst’s notes from a call with La-farge. Exs. 1280, 2081,1122 (Miling dep.) 310:15-23.

In July 2011, Zoran Miling (Analyst, Longbow) had a discussion with someone at Lafarge. Ex. 1122 (Miling dep.) at 310:15-23. Mr. Miling took detailed notes from the call. Id.-, Ex. 1280. Portions of notes from this call appear verbatim in a July 8, 2011 Longbow report. Ex. 2081 at 7-8.

*206 7. 7/21/2011: Kathryn Thompson (Founder and Dir. of Research, Thompson) shared information about USG directly with Craig Weisbruch (Sr. VP Sales and Marketing, National). Ex. 1275; PSOF ¶ 207.

On July 21, 2011, Craig Weisbruch (Sr. VP of Sales and Marketing, National) emailed to Kathryn Thompson (Founder and Dir. of Research, Thompson): “I can’t' believe that USG is going in to their call tomorrow as the only company to not announce an increase.” Ex. 1275.

Ms. Thompson responded later that day: “The message I think you will hear from USG is they likely won’t participate at all. If pressed, they’ll say this decision is driven by their belief there is so much protected business in the market. Either way, let’s compare notes when USG reports.” Ex. 1275.

Mr. Weisbruch forwarded her response to Tom Nelson (Pres, and CEO, National), writing: “If true (and it sounds like she’s spoken to them), here’s a company that has truly run off the tracks.” Ex. 1275.

8. 7/28/2011: Zoran Miling (Analyst, Longbow) emailed Craig Weis-bruch (Sr. VP of Sales and Marketing, National) industry information on American and USG. Ex. 1281.

Mr. Weisbruch responded to American’s unexpectedly low volume by commenting, “Our opinion is that American is trying to be a good steward of the price.” Ex. 1281.

9. Early 9/2011: Internal PABCO email indicated recognition that a united manufacturer front would be necessary to cause a price increase. Ex. 1287.

Todd Thomas (Director of Sales, South, PABCO) wrote and circulated a confidential, internal PABCO memo that provided a market update for August 2011. The memo is not dated, but the context indicates it may have been written in early September 2011. Speaking about a price increase scheduled to take effect in early September 2011, Mr. Thomas wrote:

It will take strong united effort by all manufacture [sic] to manage current job pricing and improved forward pricing for this increase attempt to yield any price improvement. I do believe that the poor financial performance by all manufacturers, a reality check that demand improvements are not coming any time some [sic], and price improvement is the only answer [sic] will result in all manufactures falling in line to support price improvement in the coming year.

Ex. 1287.

10.9/2/2011: Keith Metcalf (Sr. VP of Marketing, Sales, and Distribution, American) sent an internal email prohibiting staff from providing job quotes except in limited circumstances. Ex. 1482.

On September 2, Keith Metcalf sent another email to American Gypsum employees.

Effective immediately, during the remaining time for calendar 2011, no quotes should be given to a customer unless they hand you the PS’s that day or make a commitment to [American] on that job for the balance of the year. When looking ahead to January 2012 and moving forward we would like to hold off on giving any quotes until September 19th, at which time we will reevaluate.

Some of this may sound odd but if you would like to discuss further please give me a call.

Ex. 1482.

The impetus for this email was explained in an email exchange on September 20. On that date, Mary Schafer (VP of *207 National Accounts, American) received an email from an American salesman asking whether he could provide a job quote for a particular project, referencing Mr. Met-calfs September 2 email. Ex. 2098. In response, Ms. Schafer wrote:

We should pursue. The email below [the Metcalf email] is referencing an anticipated announcement from one or more of the big boys relative to job quoting. We’re still waiting. Just want to proceed cautiously and not get locked in to big volume at low prices, especially if there is a game-changer event on the near horizon.

Ex. 2098 (emphasis added).

11. 9/6/2011, 1:45PM: Mr. Metcalf (Sr. VP Sales, Marketing, and Distribution, American) called Rob Waterhouse (Sr. VP of Sales and Operations, L&W); the call lasted 24 seconds. At 1:48PM, Mr. Wa-terhouse called Mr. Metcalf. The call lasted 4 minutes. Exs. 2146, 2187.

12. 9/6/2011, 1:56PM: Rob Water-house (Sr. VP of Sales and Operations, L&W) called Greg Salah (Sr. VP of Sales and Marketing, USG). The call lasted two minutes. Ex. 2187.

13. 9/7/2011: Greg Salah (Sr. VP of Sales and Marketing, USG) emailed to USG leadership an internal draft letter creating an annual price for wallboard and eliminating job quotes. Ex. 2191.

14. 9/12/2011: Phil Kohl (VP of Sales and Marketing, PABCO) sent a memo to PABCO leadership indicating that unanimous manufacturer action would be required to achieve price improvement. Ex. 1366.

Under the heading “General Market Conditions,” the memo read:

Real sustainable price improvement is impossible without a unanimous resolve to push through a price increase coupled with an absolute tightening and strict policing of all existing quotes. All gypsum companies see the need for an increase but the failure to achieve this end is caused by their apparent inability or refusal to tightly manage their existing quotes. In such an oversupplied market, even one lose open-ended quote can be the catalyst for the collapse of any price improvement.

Ex. 1366.

15.9/19/2011: Dave Powers (President, American) called Foster Duvall (Sales Manager, PABCO). Exs. 1168, 1128.

They spoke for 19 minutes. Id. Both men acknowledged the call in their deposition testimony. Exs. 1128 (Powers dep.) 220:24-222:21, 1104 (Duval dep.) 181:10-182:11. And in an email the day after the call, Mr. Duvall wrote that he and Mr. Powers discussed a “lack of leadership in the industry” on the call. Ex. 1168.

Mr. Powers said this call reflects him merely returning a call from Mr. Duvall. Ex. 1128 (Powers dep.) at 220:24-222:3. Mr. Powers explained that he “seriously debated” whether to place the call because he knew American was about to release its announcement that would eliminate job quotes, create calendar-year pricing, and impose a 35% price increase for 1/1/2012. Id. But he decided to call Mr. Duvall nonetheless because Mr. Duvall was a personal friend, who had just had open-heart surgery multiple times. Id. Mr. Powers testified that they mostly discussed Mr. Duvall’s health and family, but that they ended the call as they always did by slamming their former employer, USG, which involved talking about a lack of leadership in the industry. Id. at 222:07-223:09.

*208 Mr. Duvall does not remember the call or what was said on it, though he does not contest that it occurred. Ex. 1104 (Duvall dep.) at 182:10-182:22.

16. 9/20/2011: American announced calendar-year pricing and the end of job quotes. Ex. 1489.

On September 20, 2011, American Gypsum circulated to customers a to-the-point announcement:

To our Customers:

Effective January 1, 2012, we will implement a 35% price increase on all gypsum wallboard products. This increased price (up 35%) will be your price for the entire year of 2012. This increase applies to all segments of the business.

Effective immediately, we will no longer be providing job quotes. We thank you for your continued support.

Ex. 1489. The letter was signed by Keith Metcalf (Sr. VP Sales, Marketing, and Distribution, American).

17. 9/20/2011: An internal PABCO email shows that PABCO leaders knew USG was considering elimination of job quotes. Ex. 1496.

Todd Thomas (Director of Sales, South, PABCO) emailed Ryan Lucchetti (President, PABCO) and Mark Burkhammer (Director of Sales, North, PABCO):

I just heard USG is coming out with a letter in the next day or so for a =$25-30 increase January 1st. The letter will include wording about how they will handle job quotes. My understanding [sic] National and American are on board.

Ex. 1496.

18. 9/20/2011-9/21/2011: PABCO’s president commented on the American announcement. Ex. 1168.

A customer forwarded the American to Ryan Lucchetti (President, PABCO) at 2:29pm on September 20. Mr. Lucchetti forwarded the email to Foster Duvall (Sales Manager, PABCO) at 4:07pm, saying, “Well here is the 1st.” Ex. 1168. Mr. Duval responded: “Dave [from American] gave me a call yesterday and mentioned his frustration with the lack of leadership in the industry. Eliminating job quotes would be a great start for the price improvement.” Id. The next day, Mr. Luc-chetti responded, “Dave Powers is my new hero.” Id.

Mark Burkhammer (Director of Sales, North, PABCO) also received Ryan Luc-ehetti’s (President, PABCO) email forwarding the American announcement (‘Well here is the first”). Mr. Burkhammer forwarded the letter to Marty Brand (VP Sales and Operations, L&W), writing “Hope this works.” Ex. 1244. Mr. Brand responded, “Interesting idea. I hope this does fly. I like the way they put it out there 2-1/2 months ahead of time!” Id.

19.9/20/2011-9/21/2011: CertainTeed leadership discussed American’s announcement. Ex. 1491.

A customer emailed Bill Mazurie (Regional Manager, CertainTeed) a copy of the American increase letter. Ex. 1491. Mr. Mazurie forwarded it to Steve Hawkins (VP of US Sales, CertainTeed), writing: “Here it is. USG probably will be next.” Id. Mr. Hawkins then forwarded the letter to other CertainTeed leaders, including John Donaldson (President, Gypsum-North America, CertainTeed).

In response, Mr. Donaldson indicated that he needed an “urgent recommendation on our approach.” Ex. 1498. Later in the same email chain, Mr. Donaldson indicated that he was “very much in favor of matching the [American] announcement as closely as possible.” Ex. 1498.

*209 20. 9/20/2011: Craig Weisbruch (Sr. YP Sales and Marketing, National) had a call with Kathryn Thompson (Founder and Dir. of Research, Thompson) about job quotes. See Ex. 1499 (“after our conversation yesterday about job quotes”).

21. 9/21/2011, 8:17 a.m.: Craig Weis-bruch (Sr. VP of Marketing and Sales, National) revealed he knew that USG was considering job quote elimination. Exs. 1500, 1510.

Craig Weisbruch (Sr. VP of Sales and Marketing, National) received a copy of the American announcement and forwarded it to National’s President and CEO (Tom Nelson). In the body of the email Mr. Weisbruch wrote, “Looks like American beat USG to the punch. This will be interesting to watch play out.” Ex. 1500. Mr. Nelson responded, “This might change the outlook slightly.”

22. 9/21/2011, morning hours: Kathryn Thompson (Founder and Dir. of Research, Thompson) and Craig Weisbruch (Sr. VP of Sales and Marketing, National) exchanged emails about job quote elimination. Ex. 1499. PSOF ¶¶ 238, 252, 323.

On 9/21/2011 at 7:38am, Craig Weis-bruch (Sr. VP Sales and Marketing, National) wrote to Kathryn Thompson (Founder and Dir. of Research, Thompson) to follow-up about a conversation the two had the day before: “I should have added, again, after our conversation yesterday about job quotes, [the elimination of job quotes] is another way of telling the dealers that they are sick of pricing being manipulated by constant job quoting.” Ex. 1499. Later in the same email chain, Mr. Weisbruch indicated that he thought the industry would follow American’s lead. Ex. 1499.

Ms. Thompson quoted this email in a Thompson report that was circulated later that day.

23. 9/21/2011, 4:45 p.m.: National placed “a moratorium on job quoting until such time as [they] determined] [their] position on this subject going forward.” Exs. 1500, 1510.

24. 9/21/2011, 6:00 p.m.: American employee indicated awareness that the price increase is not commensurate with demand. Ex. 1359.

The day after the American announcement, David Bates (Director of Sales— West, American) wrote an external email to a distributor related to the American announcement:

I don’t think demand matters anymore. Job quotes are the killers!!!!! I am already hearing Pabco, USG and National are going to announce something similar as well. The industry needs this increase badly.

Ex. 1359.

25. 9/21/2011: A Thompson Flashnote anticipated that the successful elimination of job quotes would require all manufacturers to do so simultaneously. Ex. 1259.

On 9/21/2011, Thompson sent out a “flashnote” to clients assessing American’s 9/20/2011 letter:

The elimination of job quotes effectively stops price protection, which has been the bane of the wallboard industry. Anywhere from 30%-70% of wallboard pricing is protected in the cur *210 rent market, according to TRG contacts, which limits the effectiveness of price increases. As one TRG wallboard industry contact quipped this morning, “this is another way of telling the dealers that they are sick of pricing being manipulated by constant job quoting.”

Additional Color. It is our understanding that USG floated the idea of elimination of job quotes to certain customers over the past month or so. As such, EXP’s [American’s] letter yesterday effectively supports USG’s idea and also draws the proverbial line in the sand (i.e., “I dare you not to follow suit”).

TRG Opinion. Elimination of job quotes/price protection would be a positive for the wallboard industry, in our opinion. For this to work, however, all wallboard manufacturers would need to fall in line, and initial checks suygest this could be possible ....

Ex. 1259 (emphasis in original).

At least American received this report. Ex. 1259 (Thompson forwarding the report to American to keep American “in the loop”).

26.9/22/2011: Greg Salah (Sr. VP of Sales and Marketing, USG) sent an infernal email that was optimistic about price improvement. Ex. 1502.

Greg Salah (Sr. VP of Sales and Marketing, USG) wrote to Scott Blanchard (VP of Sales, USG) only two days after the American announcement:-“I do know one thing, we will not lose money in 2012. We have got to get wallboard to a point that we can get U.S. Gypsum to break even.” Ex. 1502.

27. 9/22/2011: Longbow emailed National about Longbow’s conversation with American/Eagle. Ex. 1277.

The day after the American announcement, Zoran Milling (Analyst, Longbow) asked Craig Weisbruch (Sr. VP of Sales and Marketing, National) about Mr. Weis-bruch’s thoughts on the American announcement. Ex. 1277.

Mr. Weisbruch responded to this email. Portions of his response appeared verbatim in Longbow’s October 11, 2011 report, which was rec'eived by L&W, USG, TIN, Lafarge, and CertainTeed. See Exs. 1261 (L&W bates stamp), 1349 (USG bates stamp), 2046 (TIN bates stamp), 1363 (La-farge bates stamp), 1858 (CertainTeed bates stamp).

Zoran Miling (Analyst, Longbow) responded, thanking Mr. Weisbruch for the input and adding:

We spoke with Eagle earlier this morning to get their take on the matter... .Management’s tone was much more stern in regard to this increase attempt relative to others, with [Eaglej’s CFO saying ‘we’re serious this time around.’... Interestingly, they were open in telling us that they don’t care if they lose market share because of the new strategy.

Ex. 1277.

28. 9/27/2011: L&W and PABCO employees discussed the elimination of job quotes. Ex. 1244.

On September 27, Mark Burkhammer (Director of Sales, North, PABCO) invited Marty Brand (VP of Sales and Operations, L&W) to dinner through an email. In the email chain, Mr. Burkhammer said:

I look forward to seeing you and sharing some tales... maybe talk a little strategy if all the announcements are out by then. Even though we haven’t officially *211 stated our intention I sent an email to the troops getting them ready. No more job quotes and 30 days to close any open quotes getting our system down to secured work through our distributors with footage and address’s. I am suggesting, wherever and to whoever will listen, that the manufacturers have to police.... I don’t know how this will all work out but it has some people thinking but getting something done by seven manufacturers for the good of the industry is like being in the house of reps in DC.

Ex. 1244.

29. 9/28/2011: USG sent letter out announcing elimination of job quotes and a shift to calendar-year pricing, but not announcing the specific amount of the January 1, 2012 increase. Ex. 1617.

30. 9/29/2011: Kathryn Thompson (Founder and Dir. of Research, Thompson) called Craig Weis-bruch (Sr. YP of Sales and Marketing, National). The call lasted for 15 minutes. Ex. 2167.

Portions of Ms. Thompson’s notes of this call (Ex. 1515) are repeated nearly verbatim in a 10/3/11 Thompson Research Group report. Ex. 1346.

31. 9/29/2011: CertainTeed stopped offering job quotes. Ex. 1299.

Although CertainTeed stopped offering job quotes by 9/29/2011, it officially distributed the letter eliminating job quotes and announcing calendar year pricing on 10/3/2011. Ex. 1299. The letter was misdat-ed as 10/3/2012. Ex. 1299. CertainTeed promised a new price schedule by 11/15/11. Ex. 1299.

32. 9/30/2011: National distributed letter announcing the elimination of job quotes and shift to calendar-year pricing. Ex. 1319.

National released its letter on 9/30/2015, but it had already indicated that it would follow American’s lead. Ex. 1499. National’s Director of National Accounts (Duane Wood) testified that he did not recall whether National considered what National would do if the other manufacturers did not also eliminate job quotes. Ex. 1138 (Wood dep.) at 141:10-17.

33. 10/3/2011: Craig Weisbruch (Sr. VP of Marketing and Sales, National) called Kathryn Thompson (Founder and Dir. of Research, Thompson); the call lasted 15 minutes. Ex. 2171.

34. 10/3/2011: Thompson released a flashnote that reproduced nearly verbatim Ms. Thompson’s notes from a 9/28/2011 meeting with Craig Weisbruch (Sr. VP of Sales and Marketing, National). Compare Ex. 1515 (9/28/2011 New York City meeting notes from meeting with National); with Ex. 1346 (10/3/2011 Thompson flash-note, Lafarge bates stamp).

35. 10/3/2011: CertainTeed distributed a letter announcing the end of job quotes and beginning of calendar-year pricing. The letter did not include the amount of the January 2012 price increase. Ex. 1299.

36. 10/4/2011: Lafarge sent out letter announcing elimination of job quotes and shift to calendar-year pricing with a 35% increase. Ex. 1522,1102.

■ Lafarge’s VP of Sales (Steve DeMay) testified that he did not recall anyone at the company putting anything in writing to *212 justify these changes. Ex. 1102 at 151:17-21.

37. 10/10/2011: A manufacturer exchanged emails with Longbow. Ex. 2133.

The sender of the email is redacted, but Longbow’s October 11, 2011 report quoted directly from the email and attributed the quote to a manufacturer, without specifying which manufacturer. Ex. 2133. In the email exchange, the manufacturer-sender summarized the current manufacturer announcements and wrote that he anticipated the manufacturers to take measures to limit pre-buying. Ex. 2133.

38. 10/11/2011: Longbow issued a report indicating that Longbow was not confident that the price increase for January would stick, which was received by L&W, USG, Lafarge, CertainTeed, and TIN. Ex. 1342.

Longbow summarized the “key takeaway” as being that

industry players recognize the January increase attempt as a new approach to pricing, one that could end up being at least partially successful. However, without capacity reductions or consolidation (assuming Lafarge continues to struggle to find a buyer for its wallboard assets), we are taking a wait and see approach given the difficulty the industry has had in the past securing long term price increase success despite many attempts during the downcycle.

Ex. 1342 at 1-2.

Multiple Defendants received this report. Exs. 1261 (L&W bates stamp), 1349 (USG bates), 578 (Lafarge bates stamp), 1263 (Lafarge bates stamp), 1858 (Certain-Teed bates stamp), 2046 (TIN bates stamp).

39. 10/11/2011: A TIN sales manager told his sales team that TIN would support the January increase; TIN did not formally announce elimination of job quotes but quotes were eliminated by mid-October 2011. Exs. 1503,1523.

40. 10/11/2011: Kathryn Thompson (Founder and Dir. of Research, Thompson) called John Donaldson (President, Gypsum-North America, CertainTeed) and the call lasted for 17 minutes. Ex. 2155.

41. 10/12/2011: PABCO gave Longbow advanced notice of its price increase (which would be issued later that day); within minutes of receiving this notice, Longbow forwarded the notice to Craig Weisbruch (Sr. VP of Sales and Marketing, National). Ex. 1278, 2030, 1278, 1122 (Miling dep.) at 100:3-103:1.

42. 10/12/2011: PABCO announced elimination of job quotes and implementation of calendar-year pricing with a 35% increase. Exs. 1095,1118,1320.

But prior to that announcement, PAB-CO had already curtailed job quotes. Ex. 1095 (Burkhammer dep.) at 120:20-22. The 35% price increase was the highest PAB-CO had ever announced. Ex. 1118 at 177:6-8.

43. 10/13/2011: PABCO sent an internal email reflecting that American had told its employees to stop sending written reports regarding any competitive information. Ex. 1493.

Phil Kohl (VP of Sales and Marketing, PABCO) emailed Ryan Lucchetti (Presi *213 dent, PABCO) and Brian Hobdy (CFO, PABCO) with the subject “American and Temple-Inland Talk”:

Gary Miranda reports that American is telling their salesmen to discontinue all ‘written’ reports in regards to all competitive information-, American apparently wants to limit their paper trail in regards to their thinking on the industry’s planned $35 price increase. American is concerned that there may be a market backlash with claims of collusion if this increase becomes a reality in 2012.

Ex. 1493.

44. 10/13/2011: National expressed concern about existing job quotes, worrying those quotes might “blow the deal” if American were to think that National had “broken ranks.” Ex. 1560.

Kurt Withrock (Dir. Demand Management, National) sent an email to Scott Carlsen (unknown position, National) about Colorado “job numbers.” Mr. With-rock was asking whether Mr. Carlsen could pare down the job numbers, writing: “This scares me more than anything I see in the system. I’d hate to think we blow the entire deal because American thinks we’ve broken ranks and job quoted well into 2012 in their backyard.. .when we hardly cover variable on all that footage.” Ex. 1560.

45. 10/14/2011: Lafarge President instructed sales staff to tow the line following a Longbow report that criticized Lafarge for lacking pricing discipline. Ex. 1263.

46. 10/14/2011: Greg Salah (Sr. VP Sales and Marketing, USG) sent an email to Chris Griffin (President, USG), indicating that USG would go on a controlled distribution by 11/1/2011 to prevent flooding the market with cheap board, even though controlling supply was risky because competitors could steal market share. Ex. 1580.

Mr. Salah also wrote that he knew that “a couple of competitors... have already gone on controlled distribution.” Ex. 1580.

47. 10/19/2011: Keith Metcalf (Sr. VP Sales, Marketing, and Distribution, American) advised an American’s Sales Director to tell a customer to expect other manufacturers to impose the same price increase as American, but he did so before the amount of the increases were officially announced by all American’s competitors. Ex. 1169.

On October 19, one of American’s clients sent an American Sales Director an email intimating that the customer would go elsewhere if American went through with the January 2012 increase. Ex. 1169.

The sales director forwarded the email to Keith Metcalf (Sr. VP of Marketing, Sales, and Distribution, American) to get Mr. Metcalfs advice about how to proceed. Metcalf responded: “I would tell Albert that when he re-engages the other manufacturers he will find the same answer.” Notably, at the time Mr. Metcalf sent this *214 email, all of the manufacturers that would announce an increase in the price had announced that an increase would be made, but they had not all announced what precisely the increase would be.

48. 10/19/2011: USG expressed concern that competitors might perceive that USG was involved in L&W’s job quoting. Ex. 1564.

Rob Waterhouse (Sr. YP of Sales and Operations, L&W) sent Greg Salah (Sr. VP of Sales and Marketing, USG) some documents related to how L&W was handling the recent manufacturer price announcements. Salah responded:

My only concern is your comments on jobs. We are taking a very hard line with all of our customers and not accepting job commitments dealers made on their own. It appears that L&W will be protecting a good deal of jobs and I assume the market will believe we are part of it.

As a follow-up to our conversations, we will not be able to protect any jobs that were not in our job quote file with a specific identifiable job prior to September 28. Understanding this could cost USG volume in 2012, we feel we have no choice but to be very firm on our policy. Job quotes have decimated our pricing over the last 3-4 years. We cannot take a chance of creating the impression that we are not serious about our new pricing policy.

Ex. 1564.

49. 10/27/2011: National would not undercut USG’s pricing when approached by a customer because the job “violatefd] [National’s] pricing policy established on 9/28” and National was “not in a position to provide special pricing.” Ex. 1553.

50. 10/28/2011: National listened to Eagle/American’s earnings call. Ex. 1581.

The information learned on the call was then passed around at National:

For those of you who did not listen in, here is a transcript from EXP’s earnings call. They say they are very serious about a 35% price increase and are willing to take less volume to make it stick. They are also planning to shut down all of their wallboard plants for a 2 to 3 week period at the end of December (because that is a low volume period).

Ex. 1581.

51. 11/3/2011: In an internal email, Lafarge indicated that it was restricting supply. Ex. 1505.

Ike Preston (President, Lafarge) summarized the industry status:

So far the announcement [of the elimination of job quotes and a 35% price increase] has had the full support of the industry and we are seeing distributors scrambling to build up inventory. We have focused on limiting the inventory build up by limiting production and not running overtime in the plants. Similar moves have been made by our competitors so we believe we have good reason to feel positive about the increase.

Ex. 1505.

52. 11/18/2011: CertainTeed refused to lower the price for Lowe’s even though Lowe’s had absorbed a price increase in April 2011 that the rest of CertainTeed’s customer base didn’t absorb. Ex. 1520.

A national accounts manager for Cer-tainTeed emailed Steve Hawkins (VP of *215 US Sales, CertainTeed), asking how firm the increase was for Lowe’s:

Lowe’s took an average increase of $10 in April 2011. While the market has retreated, the Lowe’s increase stayed intact. I have started prepping Steve Edwards for our pending January 2012 increase. He has advised that 35%/$50 is a bit steep. We are also hearing market reports that retail is not expecting to take the full increase. Since we were able to hold the April increase, I would recommend only going up $35-45 to come to the $50 you are seeking... .Please let me know your thoughts and I will work with Ian to get the Lowe’s pricing matrix updated.

Ex. 1520. After the manager sent one follow-up email requesting a response, Hawkins responded:

We must fully support [sic] increase. I have instructed Ian to update Lowes matrix reflecting our increase of $50-75-100. Makes no difference what happened last year or Zelman’s opinion. We have no choice but to support. Thanks.

Ex. 1520.

53. 11/21/2011: Longbow issued a research report. Ex. 1589.

The report characterized the January increase announcements and provided an outlook.

From the beginning, manufacturers have collectively communicated the same date for the increase, a similar amount, and all have uniformly abandoned the use of job quotes. In the past, differences in dates and magnitude have also tended to undermine the increase. In addition, they have communicated these items will in advance to allow time for distributors and contractors to digest the information and make the necessary accommodations. Even though USG is the lone manufacturer who has yet to announce a price increase amount (they will do so in December), many of its distributors through its subsidiary L&W are quoting prices beyond January 1st with 35% escalators.

Working against [the manufacturers] is that the same weak demand environment that has scuttled so many prior price increase attempts still exists. Capacity utilization' is still 50% and the distribution channel is still having difficulty passing along increases of their own after manufacturers last raised prices successfully back in March.

Ex. 1589 at 3.

54. 11/21/2011: Zoran Miling (Analyst, Longbow) emailed Craig Weisbruch (Sr. YP of Sales and Marketing, National) the most recent report. Ex. 1589.

Mr. Miling drew specific attention to information about USG and L&W: “Worth noting is that though USG has yet to announce a price increase, it’s [sic] L&W arm is quoting prices beyond January 1st with $35-$40/MSF (=36%) escalators.” Ex. 1589. He also wrote: “I’m sure plenty of lies are and will continue to be told, but from our perspective it appears as though the line is being held firmly.” Ex. 1589. Mr. Weisbruch forwarded this to Tom Nel *216 son (President, National), writing: “Don’t know if you saw this or not. Pretty positive!” Id.

55. 11/28/2011: USG sent an internal email instructing sales staff that they could provide verbal guidance that USG would not quote jobs in 2013 and that the 2013 calendar-year price would likely be +20% from the 2012 calendar price. Ex. 1671.

56. 12/2/2011: In an internal email, a National director indicated his unwillingness to attempt to solicit competitors’ customers. Ex. 1558.

57. 12/7/2011: Longbow sent an email report to TIN, PABCO, and National regarding a meeting between Longbow and Eagle (American). ¶ Ex. 1267, 1258,1268.

Zoran Miling (Analyst, Longbow) sent individual, nearly identical emails to TIN, PABCO, and National regarding “a series of meetings” it hosted “with EXP [Eagle] management in Chicago.” Ex. 1267 (email to PABCO), 1258 (email to TIN), 1268 (email to National). He indicated that “[o]verall, the meetings had an optimistic tone regarding the upcoming wallboard price increase.” Under the label “Wallboard Price Increase — Continue to Say and Do the Right Things,” Mr. Miling summarized:

• ... EXP [Eagle] indicated that it should know if the price increase holds by early February. Our recent channel checks have confirmed that the industry has put distributors on allocation and we estimated the full impact of the increase won’t be known until March/April when distributors will look to stock up for the spring building season....

• While a prebuy is currently occurring, the industry has not added shifts or capacity to meet the order rates. As a result, while inventories are high at distribution, the manufacturers’ allocation has limited the degree distributors can stock up in advance.. .Additionally, as [Eagle] is taking its wallboard plants down for maintenance this month, it essentially caps at current levels the amount its customers can order. Lastly, given space constraints at distribution and as wallboard can’t be stored outdoors in the winter (or most anytime for that manner), distributors are limited in this regard to how much they can prebuy.

• While 40% of past demand was subject to job quotes, EXP estimates that lingering projects that were subject to the prebuy will be only 10% in early CY 12. Additionally, EXP estimates projects tied to previous quotes will roll of[f] and by mid CY 12.

Ex. 1267, 1258, 1268

58. 12/7/2011: Steve DeMay (YP of Sales, Lafarge) had a 27-minute conversation with Zoran Miling (Analyst, Longbow), which Mr. Miling memorialized. Ex. 1269.

The notes of this call, found at Exhibit 1269, are discussed in depth in this memorandum. Portions of the notes from this call appeared verbatim in a February 23, 2012 Longbow report. Compare Ex. 1269; with Ex. 1624 at 9.

59. 12/27/2011: In an internal USG email, USG’s VP of Sales — West indicated that USG would not produce more board despite a shortage. Ex. 1576.

Scott Blanchard (VP Sales — West, USG) received an email regarding board short *217 age. Mr. Blanchard indicated that USG might run some extra shifts at the plants, but that “[i]t’s in the best interest of the market to keep it tight in January.” Ex. 1576.

60. 12/27/2011: In an internal email, PABCO commented that if the industry could create wallboard scarcity, the price increase would be more likely to stick. Ex. 1582.

PABCO’s VP of Sales and Marketing sent out an email entitled “Contrarian Thought,” in which he explained that he

wouldn’t be too anxious to empty the warehouse... starting next week we need to believe that PABCO will get an additional $35/msf more on everything we ship... if we don’t believe, how can we expect our customers to believe. In an oversupplied market with many participants bent on the increase’s destruction PABCO’s message needs to be strong along with that of our competitors.

Ex. 1582.

B. 2012 Activity

61. 1/9/2012: A representative from Longbow called Craig Weisbruch (Sr. VP Marketing and Sales, National), and they spoke for approximately 34 minutes. Ex. 2172.

62. 1/19/2012: In an internal Lafarge email, Lafarge’s VP of Sales expressed concern that any cut in price to a wholesaler would be communicated to competition. Ex. 1563.

Steve DeMay (VP of Sales, Lafarge) exchanged emails with Wayne Wilson (Regional Sales Manager, Lafarge). Mr. Wilson wanted to know about a regional pricing issue. Mr. DeMay responded:

I don’t want to lose any high return business but as well do not want to be labeled as the price cutter. Both of these accounts are wholesalers so any move will likely be communicated to competition.

Ex. 1563.

63.1/27/2012: In an internal American email, Keith Metcalf (Sr. VP Sales, Marketing, and Distribution, American) indicated that American would be unofficially providing 2013 pricing guidance to customers. Ex. 1172.

In response to an inquiry about pricing for 2013, Keith Metcalf (Sr. VP Sales and Marketing, American) responded:

We are not ready to put a [sic] official notice out yet. If you would like you could send him and [sic] email to let him know our guidance. The guidance would be; [sic] for 2013 you will see increases *218 from manufacturers up to 30% on today’s numbers.

Ex. 1172.

64. 2/7/2012: Longbow research report on USG reported, “[USG’s] [management also stated that it has no intention of undermining the increase — a key concern in the industry — as it views pricing as the best way to improve profitability given weak industry volumes.” Ex. 1594..

65. 2/10/2012: A TIN email to a customer estimated the price increase for 2013, estimating a $40 upswing from 2012 pricing. Ex. 1683.

66. 2/14/2012: A representative from Longbow called Bill Kelley (Dir. Dealer Sales, National); they spoke for 16 minutes. Exs. 2167; 2172; 2175; 2173.

67. 2/23/2012: A Longbow report summarized the status of the wallboard market in light of the January 2012 changes. Ex. 1531.

One paragraph is most relevant to the tactic of volume restriction:

The price increase continues to hold at or near the previously communicated level with contacts noting that certain manufacturers — chiefly [Eagle], National Gypsum and CertainTeed — continue to hold the line likely at the expense of volumes. Despite prior concerns to the contrary, both USG and Lafarge continue to act rationally.... In fact, the various manufacturers we spoke with told us they were more than willing to cede some share at the expense of price and our various dischssions with industry contacts supports that view.

Ex. 1531.

68. 2/25/2012-2/27/2012: Defendants’ employees attended 2012 Drake Group meeting in San Antonio, TX. PSOF ¶ 470.

The Drake Group LLC is a network of approximately 61 gypsum specialty dealers, which uses the aggregate buying power of its members to secure competitive rebates and discounts from vendors, including drywall vendors. The Drake Group does not purchase building products itself; it only negotiates the rebates and discounts made available to its members.

The parties agree that employees of some Defendants attended a February 25-27, 2012 Drake Group meeting in San Antonio, Texas. Drake Group meeting attended included Scott Blanchard (VP of Sales, USG), Matt Byrne (VP of Sales, USG), Cristopher Griffin (President, USG), Greg Salah (Sr. VP of Sales and Marketing, USG), John Donaldson (Pres., Gypsum-North America, CertainTeed), Steve Hawkins (VP of USG Sales, CertainTeed), Keith Metcalf (Sr. VP Sales, Marketing, and Distribution, American), David Powers (President, American), and Craig Weis-bruch (Sr. VP of Sales and Marketing, National).

69. 2/27/2012: The last day of the Drake Group meeting, an internal National email indicated that National learned from dealers that American planned to announce formal guidance. Ex. 1677.

In an email titled “Weekly Report,” Bill Kelly (Dir. Deal Sales, National Gypsum) *219 wrote: “Dealers tell ns that American Gypsum will soon be providing price guidance for 2013 in a written communication telling customers to plan for one price increase in January of 25-30%.” Ex. 1677.

70. 2/28/2012: In an internal USG email, Scott Blanchard (VP Sales — West, USG) wrote a recap of the Drake meeting. Ex. 1638.

Scott Blanchard (VP Sales — West, USG) summarized the Drake Group meeting for Greg Salah (Sr. VP Sales and Marketing, USG):

In general the Drake Meeting was a non-event. New of the customers “surprised” us at the meeting with requests or market information. There was a more positive outlook for the year with almost all the customers.

From a high level these are the main takeaways;

• The new Price strategy is being well received by the distributors (helped them)

• No manufacturer has moved price

• Some manufacturers are back in old markets because they can make money (greatest concern to distributors)

• Lower job quotes are escalating 4/1/2012 (protected volume up at least $10/msf or cancelled by our competitors)

• What escalator should they use for 2013 (20-25% was our guideline, further discussion is necessary internally at USG)

Ex. 1638.

71. 3/1/2012: American issued price-guideline announcement for 2013 indicating that the pricing for 2013 was “anticipated to be in the range of 25%-30% higher than [the] 2012 prices.” Ex. 1679.

Writing only “FYI,” Greg Salah forwarded American’s announcement to Chris Griff (President, USG):

To our Customers:

In September of last year, we announced that we would no longer be providing individual job quotes. At that time, we gave you prices to be used for all your work for the year 2012. In response to customer requests for prices to be used for work bn jobs beyond the end of this year, we are sending you this communication to provide you guidance with respect to our wallboard pricing for 2013.

Your January 2013 prices from American Gypsum are anticipated to be in the range of 25%-30% higher than your 2012 prices. These January 2013 numbers and be used fdr all your work in 2013. This price increase is subject to further review as 2013 gets closer taking into consideration, among other things, increases in manufacturing and transportation costs.

*220 We will give you more specifics in the fall of this year.

Ex. 1680.

72. 3/7/2012: Jay Wyatt (Unknown position, TIN) provided internal email permitting sale staff to provide verbal guidance for 2013 pricing as “today’s price plus no more than 30%.” Ex. 1684

73. 3/10/2012: USG sent internal guidance indicating that USG would not send out a letter for 2013 pricing yet, but permitting sales staff to respond to customer inquiries by providing a verbal 25% increase estimate. Exs. 1681,1682.

74. -3/15/2012: Garik Shmois (Analyst, Longbow) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

75. 4/2/2012: Longbow Research issues a report regarding 2013 pricing. Ex. 1270.

Zoran Miling (Analyst, Longbow) sent an email with the subject line “Wallboard Business Conditions Survey — Longbow Research.” Related to the 2013 price increase, he wrote:

• The January 1 price increase continues to find meaningful support, with contacts reporting that manufacturer pricing is up in the 28-35% range, which varies somewhat by region and manufacturer. Prices in March were stable on a sequential basis.

• Eagle Materials has announced a 25%-30% price increase for CY 2013 and is the first manufacturer to formally issue guidance. Competing manufacturers report that they are supportive of the attempt, but will not issue formal guidance until mid-2012 or as late as CY3Q12.

Ex. 1270. The full list of recipients is unknown, as Mr. Miling appears to have sent it to recipients as blind carbon copies (BCC). But, the bates stamp on the document indicates that at least National received this email.

76. 4/4/2012: National drafted a letter announcing a 2013 price increase, but it never sent that letter to customers. Ex. 1686.

The drafted letter indicated that National “anticipate^] that January 2013 prices will be approximately 30% higher than pricing levels in January of 2012.” Ex. 1686. Per Ex. 1134 (Weisbruch dep.) at 278:24-279:1, this letter was never sent out to customers.

77. 4/11/12: Lafarge quoted the April 2, 2012 Longbow report in a PowerPoint presentation. Ex. 1955.

The presentation quoted that manufacturers seem to be sticking to their guns and for the first time ever it’s on the distributors to support the increase. Back in 2009/2010 these huge job quotes were offered and they were cheap. Now that they are all steadfast, it’s up to the distributors to keep the price up now.

Ex. 1955 at 4.

78. 4/12/12: An internal National email provided sales staff with a script for customer guidance regarding the 2013 price increase, which anticipated an approximately 30% increase. Ex. 1687.

79. 4/15/2012-4/19/2012: Senior Sales and Marketing personnel from most Defendants gathered at the AWCI/CISCA Convention and IN-TEX Expo in Charlotte, NC. Defs. Resp. to PSOF ¶ 450.

The parties do not dispute that American, USG, National, Lafarge, CertainTeed, *221 and TIN all sent representatives. Plaintiffs claim that PABCO also had a representative present, but the evidence cited in support of this contention does not confirm attendance by anyone from PABCO.

80.4/17/2012: A representative from Longbow called Craig Weisbruch (Sr. VP Sales and Marketing, National); they spoke for approximately 14 minutes. Ex. 2167; Ex. 1122 (Miling dep.) at 172:25-177:8.

After the call, Garik Shmois (Analyst, Longbow) prepared an email to “Sales Approval” with the subject “USG Follow Up with Industry Insider.” The first line explains, “We just got off the phone with an SVP (number three in the organization) of a large wallboard manufacturer to get his take on the USG results.” Ex. 1600. This industry insider was Craig Weisbruch.

The call notes indicated Mr. Weisbruch’s impression that USG was aggressive in January and February at winning share because its ultimate price increase was somewhat lower than expected. “In response to share gains, the rest of the industry responded more aggressively to re-set pricing in March on a customer by customer basis-[USG] has not responded aggressively to the industry re-set which is a good thing longer term.” Ex. 1600. Mr. Weisbruch also indicated that he “expect[ed] some of the USG share gains to reverse in 2Q... .[National] ha[d] won back in the last month the majority of the share it lost to USG and he expects most of the industry has rebalanced accordingly. Neither USG nor anyone else has been disruptive since the recent re-set.” Ex. 1600.

81. 4/17/2012: Kathryn Thompson (Founder and Dir. of Research, Thompson) spoke with Ken Ba-ñas (Sr. Dir. Investor Relations, USG) and others at USG. Ex. 2168.

82. April 2012: PABCO distributed monthly report. Exs. 1095, 1688.

Mark Burkhammer, the author of the report, wrote on the 2013 increase:

I would support the intention of the American letter and have communicated to our reps that we would recommend a 25% increase be accounted for on any work going through January 1, 2013. I do not think we should put any letter out in support 'until others comply in writing. Not even sure we should go beyond verbal support at this time or later.

Ex. 1688. In his deposition, Mr. Burham-mer indicated that at this time customers who requested information would be told that PABCO was expecting a 25% increase, but PABCO was only providing that information to customers who specifically requested it. Ex. 1095 (Burkhammer dep.) at 155:12-157:8.

83. 5/21/2012: Bill Kelly (Dir. Dealer Sales, National) called Zoran Milling (Analyst, Longbow); they spoke for just under 22 minutes. Ex. 2177.

84. 6/14/2012: Ms. Thompson’s notes from a phone call with Craig Weisbruch (Sr. VP Sales and Marketing, National) reflected that there were “verbal agreements” for price increases for 2013. Ex. 1515.

The contents of the notes from this call are discussed in greater detail later in the memorandum. •

*222 Portions of the notes are reflected in Thompson’s July 15, 2012 report (Ex 1260). Compare Ex. 1515 (“2013 price increases? A: verbal agreements[ ] for a large price increase in 2013. EXP is already out for guidance for 25%-30%”); with Ex. 1260 (“TRG industry contacts are also telling us that manufacturers are discussing a sizable 2013 price increase to distributors (25%-30%), and we expect the industry will go on allocation by October.”).

85.6/19/2012: USG internally circulated an email containing commentary from Longbow about Eagle Materials. Ex. 1689.

Following Eagle’s participation at the Longbow Construction Materials Investor Day 2012, Ken Bañas (Sr. Dir. Investor Relations, USG) sent an internal email to USG leadership that included Eagle’s “thoughts on pricing this year and next.” Ex. 1689. The quotes in the email were provided directly from Longbow’s research note, so it is unclear whether USG also attended Longbow’s Investor Day.

Eagle’s thoughts on pricing were related to its April announcement of a 25-30% price incase announcement: “While competing manufacturers have yet to follow suit, [Longbow’s] recent wallboard survey (see: Pricing Holding as Downside Risks Cleared) indicated that most manufacturers have internally supported the attempt and will likely announce comparable increases of their, own in =3Q12. At this point [Longbow is] modeling =5% pricing next year, though we admit there is upside to our pricing forecase.” Ex. 1689.

86. 7/2/2012: Garik Shmois (Analyst, Longbow) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

87. 7/2/2012: A Thompson analyst spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

88. 7/9/2012: A representative of Longbow called Craig Weisbruch (Sr. VP Sales and Marketing, National); they spoke for approximately 27 minutes. Ex. 2167.

89. 7/11/2012: Longbow Research indicated that most manufacturers had informally announced a 2013 price increase by this date and anticipated that formal letters were likely to be issued in September or October. Ex. 1234.

90. 7/16/2012: A Thompson report indicated that Lafarge was telling customers to expect a 25% increase. Ex. 1690.

In addition to the anticipated increase, the report indicated that at “Lafarge also indicated that sometime between Labor Day and mid-October, they will go on ‘controlled distribution’ (i.e., allocation) in order to prevent excessive pre-buy activity.” Ex. 1690.

When USG received the report, Ken Bañas (Sr. Dr., Inv. Relations) cut out the portion regarding Lafarge noting that it was “worth passing along...” and forwarded it to senior staff at L&W and USG. Ex. 1690.

*223 91. 7/25/2012: A representative from Thompson called Craig Weis-bruch (VP of Sales and Marketing, National); they spoke for about 8 minutes. Ex. 2167.

92. 7/25/2012: Ms. Thompson (Founder and Dir. of Research, Thompson) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

93. 7/25/2012: Thompson report stated that manufacturers were discussing a price increase and that there was a potential for allocation by October. Ex. 1260

USG produced the report in discovery. Ex. 1260 (USG bates stamp).

94. 8/6/2012: In internal email, PAB-CO revealed its knowledge of other manufacturers’ allocation plans. Ex. 1709.

In an August 6, 2012 email from Mark Burkhammer (Director of Sales, North, PABCO) to, inter alia, Foster Duval (Sales Manager, PABCO) and Ryan Luchetti (President, PABCO), he wrote: “I was told USG is going on allocation in September. We are also looking to allocate but I can’t say I was ready to pull the trigger just yet.... Other manufacturers are doing the same planning. This will be an annual event to support increases.” Ex. 1709.

95. 8/9/2012: Kathryn Thompson (Founder and Dir. of Research, Thompson) spoke with Ken Ba-ñas (Sr. Dir. Investor Relations, USG). Ex. 2168.

96. 8/10/2012: A representative of Thompson called Craig Weis-bruch (Sr. VP Sales and Marketing, National); they spoke for approximately 20 minutes. Ex. 2167.

97. 8/16/2012: Internal CertainTeed communications revealed that CertainTeed considered adding a new shift at the Roxboro plant to respond to increased demand. Ex. 136.

Because of increased demand, Certain-Teed considers adding another shift to the Roxboro plan. But, the plant manager writes to Dave Engelhardt (Pres., Gypsum-North America, CertainTeed) that it will take 12-16 weeks to add the shift safely. Ex. 136.

98. 8/20/2012: Around the time that National was preparing its 2013 price increase letter (Ex. 2201), Steve Martinez (unknown position, National) spoke with a representative from Longbow Research Group for approximately 4 minutes 44 seconds. Ex. 2149.

99. 8/22/2012, 10:30am: Longbow analysts spoke with a representative from Eagle Materials (American). Ex. 1692.

Zoran Miling (Analyst, Longbow) sent Garik Shmois (Analyst, Longbow) an email on August 23 at 11:46am asking at what time the two had talked to Eagle the day before. Garick Schmois responded: “Right about 10:30. Nice. We published at about 12:30. So he definitely was typing an email when we were talking. National never had a chance to lead given Eagle was so fast.” Ex. 1692.

100. 8/22/2012, 11:30am: American distributed a formal price increase letter for 2013. The increase announced was 25% over 2012 prices. Ex. 1691.

*224 101. 8/22/2012, 12:30pm: Longbow distributed a report with the “scoop” that National would put out an official price increase later that day. Ex. 1693.

Ken Bañas (Sr. Dir. Investor Relations, USG) received the Longbow report and forwarded it to the higher ups at L&W and USG, writing:

[T]he scoop [is] that National is putting out an official 30% price increase letter for next year later today, with “official” language vs. the “to-be-modified” guidance of 20-30% from Eagle earlier in the year.

Channel check info from Longbow shows wallboard supply is getting very tight in many regions, with effective capacity utilization much higher than actual utilization. They comment all of this points to the likelihood of pricing traction next year.

Ex. 1693.

When deposed, Craig Weisbruch (Sr. VP Sales and Marketing, National) acknowledged that National was prepared to send the 2013 letter on August 22, 2013, but decided not to send the letter until September 6, 2012. Ex. 1134 (Weisbruch dep.) at 300:9-303:3. He provided no reason for why that was.

102. 8/22/2012: Kathryn Thompson (Founder and Dir. of Research, Thompson) called Craig Weis-bruch (Sr. VP Sales and Marketing, National); they spoke for just over three minutes. Ex. 2167.

103. 8/22/2012: Garik Shmois (Analyst, Longbow) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

104. 8/22/2012, 1:51pm: An internal USG email provided that “[i]n an effort to manage anticipated surge buying for the remainder of 2012, we are implementing our Controlled Distribution process for all wallboard shipment on Monday, August 27th.” Ex. 1712.

105. 8/22/2012, 2:38pm: Internal TIN email stated that “[d]ue to increased order volume the past two weeks, the gypsum management team has decided to implement a managed distribution plan for gypsum wallboard until further notice.” Ex. 1711.

106. 8/23/2012: Internal CertainTeed emails indicated that National and American had gone on allocation in certain areas, and that CT “need[s] to discuss process to Implement our allocation as it appears conditions are upon us.” Ex. 2203.

107. 8/23/2012: Bill Kelly (Dir. Dealer Sales, National) called Zoran Miling (Analyst, Longbow); they spoke for just under two minutes. Ex. 2177.

108. 8/29/2012: National states that “between the time that [National] announced its 2013 price increase and the effective date of that increase, [National] instituted product allocation on a regional bases, as needed.” Defs. Resp. to PSOF ¶ 440.

109. 8/31/2012: In internal PABCO email, PABCO revealed its knowledge of other manufacturers’ allocation-plan start dates. Ex. 1710.

*225 110. 9/5/2012: In internal USG email, USG Plant Manager expressed frustration about slowing production. Ex. 1716.

Bruce Allen (Plant Manager, USG) writes:

I’m being told we are only scheduled to run the Sigurd Plant three days due to USG controlled allocation. We have the opportunity and staffed [sic] to run four days.... We have customers wanting board. So we are going to let our competition pick up our surplus business? And if business is indeed picking up we are going to give it to our competition? I’m being told USG logistics, District sales and Manufacturing VP are all on board with this.

Ex. 1716. The email was sent to Jeffrey Barth and Jeffrey Broker. The Court does not have a record of their job titles, but by the context of the email, the email appears to be an internal USG communication.

111. 9/6/2012: National issued its 2013 price increase letter, announcing a 30% increase across the board. Ex. 1694.

112. 9/13/2012: CertainTeed announced a 30% price increase effective 1/2/2013. Ex. 1946.

Previously, on 8/22/2012, upon receiving American’s 8/22/2012 letter, Dave Engel-hardt (Pres., Gypsum-NA, CertainTeed) wrote to Steve Hawkins (VP of US Sales, CertainTeed): “Beat us to the punch. We don’t have a choice now but to support 25%. Do you think anyone else will come out lower?” Ex. 1695.

113. 10/5/2012: Longbow issued a report stating that 50% of wallboard manufacturers had announced a price increase of 25-30% (AG, CT, Lafarge and NG) and that the other 50% were expected to announce in next 30-60 days. Ex. 1696.

The report also recorded an industry contact as stating: “As strange as it sounds, allocation is fairly uniform across all of the manufacturers. There may be some isolated breakdowns in discipline— we haven’t seen any — but some of those players in the past that I would label as first offenders have been rigid in their position[.]” Ex. 1696.

114. 10/9/2012: PABCO internally distributed a September 2012 Market Condition Report, revealing PABCO’s fear that competitors could react negatively to any perceived attempt to grab market share. Ex. 1707.

Under the “General Market Conditions” heading, the report indicated:

[T]here is little-to-no resistance to the January 1, 2013 price increase. Quit [sic] a change from last year when all the naysayers were preaching the proposed increase would be a massive failure. Firmness across the board is the key to maximize our success... any perceived weakness or attempt to grab additional share with reduced pricing by any of the players could throw the price back into a destructive downward spiral.

Ex. 1707.

In his deposition, Phil Kohl (VP Sales and Marketing, PABCO) confirmed that *226 PABCO was concerned about sending the wrong “signal” to competitors by extending a lower price past January’s announced increase. PABCO didn’t want to undercut the price and for the other manufacturers to think PABCO was trying to undercut price increase. Ex. 1118 (Kohl dep.) at 226:12-228:19.

115. 10/15/2012: Lafarge issued its price increase letter reflecting a 30% increase for 2013. Ex. 1697.

116. 10/24/2012: PABCO issued its price increase letter reflecting a 30% increase for 2013. Ex. 1698.

117. 10/25/2012: PABCO confirmed to a customer that PABCO would not provide job quotes for 2013. Ex. 1672.

118. 10/26/2012: In an internal USG email exchange (10/22-26), Scott Blanchard (VP of Sales, USG) wrote, “I do not think it is in our best interest to move off ‘controlled distribution’ at this point. CertainTeed and GP will see it and react.” Ex. 1721.

119. 10/30/2012: Craig Kesler (CFO, Eagle) called Garik Shmois (Analyst, Longbow); the call lasted approximately 3 minutes. Ex. 2178.

120. 11/16/2012: USG issued price increase letter explaining that the prices would increase and that customers would be contacted individually regarding the amount of the increase. Ex. 1701.

A separate email on November 18, 2012 indicated to sales personnel that the price increase would be 25%. Ex. 1673.

121. 11/26/2012: TIN issued price increase letter reflecting a 30% increase. Ex. 1702.

122. 11/30/2012: L&W noted that it could not accommodate a lower price for any customer because to do so “would show our competition that we are protecting work and that would have the potential to harm the chances of this increase sticking.” Ex. 1654.

Marty Brand (VP of Sales and Operations, L&W) rejected a regional sales manager’s request for a flexible price, explaining that “it would show our competition that we are protecting work and that would have the potential to harm the chances of this increase sticking.” Ex. 1654. Mr. Brand closed by writing, “Hold firm and keep me informed if you hear what the competition is doing in your markets.” Ex. 1654.

123. 12/5/2012: Bill Kelly (Dir. Dealer Sells, National) called Zoran Miling (Analyst, Longbow); the call lasted approximately 14 minutes. Ex. 2177.

124. 12/7/2012: Longbow issues two reports, and USG leadership is pleased with the report on USG.

One of the Longbow reports was a summary of USG’s meetings with investors in the week leading up to the report. In an internal USG email, Ken Bañas (Sr. VP of Investor Relations, USG), wrote that he had spent three days with Garik Shmois (Analyst, Longbow) talking to investors, and that he thought Mr. Shmois “did an accurate job of capturing our key messages around L&W strategic focus, delev-eraging the balance sheet and [USGj’s commitment to 2013 pricing” in the Longbow report. Ex. 1237.

Relevant to those messages, the Longbow report included such lines as: “[W]e *227 heard all the right things about USG’s willingness to support the industry’s January 1 price increase... Our discussions with management confirms that ‘they get it! in that pricing is more important than volume... and that disruptive pricing behavior on the company’s part could quickly undermine the pricing strength seen over the past year.” Ex. 2195. At least one manufacturer, Lafarge, received the report. Ex. 1364.

125. 12/11/2012: A representative of Longbow called Craig Weis-bruch (Sr. VP Sales and Operations, National); the call lasted approximately 37 minutes. Ex. 2167; Ex. 1706 (call notes).

Garik Shmois (Analyst, Longbow) created thorough notes from the call, portions of which appear nearly verbatim in a December 18, 2012 Longbow report. Ex. 1674.

126. 12/13/2012: Garik Shmois (Analyst, Longbow) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

127. 12/17/2012: Garik Shmois (Analyst, Longbow) spoke with Ken Bañas (Sr. Dir. Investor Relations, USG). Ex. 2168.

128. 12/18/2012: Longbow report indicated that manufacturers’ elimination of job quotes remained in effect for 2013 and commented on the controlled distribution and capacity of manufacturers going into 2013. The report confirmed that CertainTeed, National, American, and Georgia-Pacific were not offering job quotes. The report also commented on manufacturer allocation. Ex. 1674.

As for the elimination of job quotes, the report indicated:

We note that throughout the course of the downturn, job quotes obstructed manufacturers’ ability to ultimately realize price increases; however since the elimination of this practice, manufacturers have been, able to shift price risk from themselves and onto the distributor and ultimately the contractor as distributors themselves.. .have remained largely disciplined. Again, this has allowed for greater price certainty in the market and thereby has allowed contractors and distributors to compete more on service rather than price.

Ex. 1674 at 9.

As to future pricing:

Future Pricing: The entire industry has thus far communicated their pricing intentions for 2013 in written form. National Gypsum, CertainTeed, Lafarge and Temple-Inland have each announced an increase of 30% whereas American Gypsum (EXP) has announced an increase of 25%. Neither Georgia-Pacific nor USG have announced a dollar amount, through [sic] distribution contacts report that each is communicating an increase of $40/MSF, which is =30%. Additionally, as L&W is out with a $50/ MSF price increase, we believe 2013 pricing will exceed our prior expectations.

Ex. 1674 at report p. 2.

129.12/21/2012: In USG’s Form 10-K for financial year ending 12/21/2012, USG indicated that demand was low for wallboard. Ex. 1222 at 7.

*228 130. 12/26/2012: Greg Salah (Sr. VP Sales and Marketing, USG) wrote that there couldn’t be any “slop over” with price despite shipping issues because of potential market reaction. Ex. 1708.

In response to emails that severe weather was causing shipping problems, Greg Salah wrote internally at USG: “We cannot do any slop over. To great of a risk of perception that we are pursuing share at the expense of price.” Ex. 1708.

XII. Evidentiary Findings Pursuant to Fed. R. Evid. 104

The evidence just presented by the Court was presented without an eye towards the admissibility of the evidence. This is in part because the Court can consider both admissible and inadmissible evidence in determining whether certain evidence is admissible under the co-conspirator exception, as discussed in the Bourjaily sections, supra. Before confronting the inferences that Plaintiffs ask the Court to reach, the Court will address the three primary exceptions under which much of Plaintiffs-’ evidence is deemed admissible.

A.Parties’ Statements

This is a relatively straightforward finding-dictated by Federal Rule of Evidence 801(d)(2). The Court has limited its review of the evidence concerning statements made by officers/employees of each Defendant to those that the evidence warranted the Court finding was a “party’s agent or employee on a matter within the scope of that relationship and while it existed.” All of Defendants’ representatives quoted in this memorandum were either officers or managers who had some involvement with, or responsibility for, pricing drywall during the relevant time period. Thus, their statements are admitted against the speaker’s employer.

B. Business Records

Defendants have objected to the Longbow and Thompson reports as inadmissible hearsay. See Defs. Resp. PSOF ¶ 273. Notably, Zoran Miling of Longbow and Kathryn Thompson of Thompson were both deposed. Ex. 1122 (Miling dep.); Ex. 1131 (Thompson dep.). Thus, their first hand impressions are not hearsay.

For the sole purpose of summary judgment, the Court concludes that the hearsay portions of their reports are admissible under Rule 803(6), the business records exception to the hearsay rule, to the extent that any hearsay statements support their opinions of the market. Some portions of the reports quote unnamed industry insiders. The Court has not relied on any of those portions of the reports in deciding whether Plaintiffs have satisfied their summary judgment showing, so the Court does not need to determine at this time whether those portions of the reports will be admissible.

C. Co-Conspirator Statements & Bourjaily

As noted above, pursuant to Rule 104(b), the Court delayed making findings until it reviewed the evidence in the record. Having reviewed the most relevant evidence, the Court pauses to make threshold findings pursuant to Bourjaily and Federal *229 Rule of Evidence 104. Under Bourjaily , the Court’s ruling is one of admissibility of evidence only, and is not a ruling as to sufficiency of Plaintiffs’ evidence to prove liability as to any specific Defendant. Hearsay evidence may be admissible under the co-conspirator rule, as to only some Defendants. It is not necessarily a conclusion that the overall evidence is sufficient to deny that Defendant’s motion for summary judgment, especially in an antitrust case where special rules apply on motions for summary judgment. 34

The fact that hearsay is admitted under Rule 104 as to a particular Defendant, does not necessarily compel a conclusion that Defendant has joined an agreement on prices in violation of § 1 of the Sherman Act. In re Flat Glass Antitrust Litig., 385 F.3d 350, 375-76 (3d Cir.2004).

Given the size of this industry, the large amount of money paid by the two settling Defendants, and the exposure to damages faced by the remaining Defendants, the Court has taken a long pause before making any rulings that will expose Defendants to liability, especially given Defendants’ testimonial denials and vociferous arguments that Plaintiffs have failed in their efforts to show that an agreement existed.

In considering the Court’s duty under Rule 104, Third Circuit law requires the Court make rulings favorable to Plaintiffs if Plaintiffs have presented, by a preponderance of evidence, sufficient facts to warrant admissibility.

Based on the review of the facts presented by Defendants in their motion for summary judgment, the factual assertions put forth by Plaintiffs in their responses, and the legal arguments made by both parties, the Court has come to nine findings under Federal Rule of Evidence 104:

1. The depressed economy that the drywall manufacturers endured following the 2008 recession, which affected many parts our nation’s economy, was a frustrating time for all of the manufacturers in this industry. A number of individual efforts to raise prices failed, which a jury may find contradicts Defendants’ assertions that the industry had always practiced “price followership.” The communications with customers and industry analysts show, -without any doubt, that all U.S. drywall manufacturers were anxious for the opportunity to raise prices.

2. The price increase that was announced in fall 2011 to become effective January 1, 2012, was historically a very large, if not the largest ever, percentage increase, announced at 35% for most manufacturers, and was followed by all Defendants, resulting in increased prices to purchasers.

3. Accompanying the price increase was the elimination of job quotes. Job quotes are a pricing mechanism, and they had long served as an effective way for purchasers to achieve discounts from list prices. The Court concludes a jury could find that the elimination of job quotes either was intended to cause, or Defendants knew would result in, very few if any discounts from the announced price increase. A jury could conclude that the elimination of job quotes resulted in a form *230 of price maintenance. Plaintiffs have produced evidence that shows that each Defendant enforced elimination of job quotes during calendar years 2012-2013.

4. There are at least some actions taken by several of Defendants that could be considered as conduct against their self-interest, at least as that term has been defined in antitrust jurisprudence following Matsushita .

5. The record of this case shows several intercorporate communications. Many documents show very frequent discussions about prices between Defendants and analysts or customers. The Court agrees with Defendants that some of the evidence of pricing communications is, on its own, normal, innocuous, and insufficient to allow any inference of conspiracy. However, some of these communications could be interpreted as encouragement or affirmation that price increases announced in and following September 2011 would be adhered to.

6. Concerning Plaintiffs’ theory that Defendants communicated with each other through analysts at Longbow and Thompson (the “conduit theory”), the Court finds, in what appears to be a novel factual situation, the above chronology shows frequent use of Thompson’s and Longbow’s communications for pricing information, as well as for market reports. However, exchange of market information, including prices, is not necessarily evidence of agreement. Admitting these facts into evidence as to all Defendants may allow a jury to determine whether the use of analysts was a “facilitating device” that enabled at least some Defendants to communicate with each other under the guise of providing highly detailed, and often confidential, pricing information about their own company and others. The conduit evidence may also be a form of “signaling” between competitors that would have allowed Defendants to conclude that they were maintaining the increased prices and elimination of job quotes.

7. The expert opinions offered by Plaintiffs support the above findings, allowing admissibility of hearsay evidence. Although, by themselves, the expert opinions would not warrant a conclusion that Plaintiffs had met their burden of proof, under established Third Circuit precedent, the Court is within its discretion in citing and relying on the experts’ opinions as having some relevance on Defendants’ motions. It is appropriate to consider these opinions on the pending motions for summary judgement because a jury will be entitled, if finding Plaintiffs’ experts credible, to rely on those opinions as part of its review of the evidence to determine whether Plaintiffs have proved that an agreement existed.

8. Under Rule 104, taking all the evidence in the light most favorable to Plaintiffs, Plaintiffs have shown by a preponderance of the evidence that an agreement existed, as to at least some Defendants. Plaintiffs’ evidence is more than merely “ambiguous” and proves sufficient to allow a jury to find that these hearsay statements, and perhaps others not specifically mentioned in this memorandum, were made during and in furtherance of an agreement by Defendants American, National, PABCO and Lafarge. Under Bour-jaily and its progeny, the hearsay evidence cited by Plaintiffs is admissible against these Defendants to the extent the statements were made during and in furtherance of the conspiracy. Whether it proves enough to deny the motion for summary judgment as to these Defendants will be discussed below, individually.

9. Plaintiffs’ evidence as to Defendant CertainTeed is not sufficient to show that CertainTeed participated in the *231 conspiracy. Therefore, the Court finds that the hearsay statements made by other Defendants or their agents, even when about CertainTeed, are not admissible against CertainTeed as statements of co-conspirators.

XIII. Plaintiffs’ Theory of the Drywall Conspiracy

Relying on the evidence outlined in the chronology, Plaintiffs argue that a jury could draw inferences that Defendants entered an agreement to fix prices. Specifically, Plaintiffs argue that culpable inferences can be drawn from (1) the timing and similarity ■ of Defendants’ announcements of the elimination of job quotes and the 2012 and 2013 price increases, (2) Defendants’ communications with one another in close proximity to major price announcements or under otherwise suspicious circumstances, (3) Defendants’ communications with research analysts, and (4) Defendants’ non-price conduct (e.g., restricting supply), which facilitated the success of the increases.

The Court acknowledges that Plaintiffs have provided no “smoking guns,” and that courts in this circuit “have been cautious in accepting inferences from circumstantial evidence in cases involving allegations of horizontal price-fixing among oligopolists.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 358 (3d Cir.2004). But even keeping this in mind, based on Plaintiffs’ arguments and the record evidence, the Court concludes that when Plaintiffs’ evidence is considered as a whole, there is substantial evidence, ranging temporally from Spring 2011 through the end of 2012, from which a jury could conclude that at least some Defendants reached an agreement with at least one other competitor. Cf. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 , 1233 (3d Cir.1993) (“We consider [the plaintiffs] evidence as a whole and with the reasonable inferences that we can draw from it.”).

A. Timing and Similarity of Defendants’ Announcements Related to Elimination of Job Quotes and the 2012 and 2013 Price Increases

Defendants do not dispute that they eliminated job quotes and announced price increases around the same time. Nor do they dispute that they did so with knowledge that the other manufacturers were doing the same. In fact, Defendants argue that they eliminated job quotes and increased prices because the other manufacturers were doing so. There is significant evidence supporting Defendants’ arguments that Plaintiffs’ evidence in this vein permits an inference of no more than price followership. And Defendants are correct that the Court must not rely on mere price followership activity because price follow-ership is expected in oligopolistic markets.

The Court has nonetheless provided a fairly detailed review of the facts leading up to the price increases in January 2012 and January 2013 and will provide review of Plaintiffs’ arguments related to those facts. Evidence that participants in an oli-gopolistic market acted the same way at the same time will always be insufficient, standing alone, to defeat a summary judgment motion. But, the timing and content of the manufactures’ announcements is relevant to Plaintiffs’ showing, even though the evidence in isolation is not dispositive.

1. Pricing Practices Prior to Fall 2011

Between 2010 and the September 20, 2011 American announcement, Defendants attempted seven price increases. Plaintiffs argue that the increases were all unsuccessful and also attribute the following characteristics to those increases:

• Usually one competitor would attempt to take market share and ends *232 up wrecking the increase. PSOF ¶ 163.

• One of the larger manufacturers (National or USG) would lead typically the increase. PSOF ¶ 165.

• Increases were usually announced approximately 30 days before their effectiveness (presumably because it was difficult to anticipate conditions more than 30 days out). PSOF ¶ 166.

• Summer and early fall were the best times for an increase, but winter was inhospitable to increases. PSOF ¶¶ 167-68.

Defendants deny that the prior increases had these attributes. They also deny that the increases failed, admitting only “that some Defendants tried to raise prices at least seven times between January 2010 and fall 2011 with various levels of success.” Defs. Resp. PSOF ¶ 162. And Defendants “deny that market conditions did not support those attempts or that they did not result in price appreciation.” Id.

2.Price Increase & Elimination of Job Quotes Effective January 2012

In fall 2011, the status quo for pricing in the drywall industry changed dramatically. Ex. 1263; see Ex. 1085 (Lamb Report) (“Job quotes were an integral part of the industry, and their near simultaneous virtual elimination by Defendants in the last quarter of 2011 created a structural change in the Paper-backed Gypsum Wallboard industry”).

a. American Announcement

In a letter to customers on September 20, 2011, American announced a move to calendar-year pricing, a 35% price increase, and the elimination of job quotes. Ex. 1489. The letter was short and to the point:

To our Customers:

Effective January 1, 2012, we will implement a 35% price increase on all gypsum wallboard products. This i

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