Full opinion text
MEMORANDUM OPINION MICHAEL, Senior District Judge. These consolidated actions come before the court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Having thoroughly considered the substantial briefing and evidence provided by the parties, and having heard oral argument from counsel on the motions, and for the reasons hereinafter set forth, the court shall GRANT the plaintiffs’ motion in part, DENY the plaintiffs’ motion in part, GRANT the defendants’ motions in part, and DENY the defendants’ motions in part. As a result of this Memorandum Opinion and Order, the plaintiffs’ only claims remaining for trial are: WL’s claim for conspiracy to monopolize pursuant to the Sherman Antitrust Act § 2; WL’s corresponding conspiracy to monopolize claim under the Virginia Antitrust Act; and all of the plaintiffs’ non-antitrust state law claims, except for unjust enrichment. I. The plaintiffs filed these antitrust cases for violations of sections one and two of the Sherman Antitrust Act, see 15 U.S.C.A. §§ 1, 2 (West 1997 & Supp.2000) (“ § 1” and “ § 2”), and related laws of the Commonwealth of Virginia. The plaintiffs’ claims arise out of a series of land donations from defendant W.R. Grace & Co.Conn. (“Grace”), to defendant The Historic Green Springs, Inc. (“HGSI”), a Virginia nonprofit organization dedicated to the preservation of land in Louisa County, Virginia. Plaintiff Virginia Vermiculite, Ltd. (“WL”), Grace’s competitor, and plaintiffs Millard F. Peers, Jr. and Norma Peers (collectively, “M.F.Peers”), residents of Louisa County, attack the donations, inter alia, as conspiratorial efforts to drive WL out of business, and to restrain trade and monopolize the industry in which WL and Grace compete. The following facts are undisputed, unless otherwise noted. WL is a Virginia corporation engaged in the business of mining, processing, and selling a mineral known as vermiculite. Vermiculite is a naturally-occurring, mica-like mineral found in the ground. When vermiculite is mined, the ore is taken to a processing plant relatively close to the mining site, and processed to remove moisture, rock, dirt, dust, extraneous material, and small particles of vermiculite that are not merchantable. The result of the mining process is vermiculite concentrate, which is separated by grade according to the size of the flakes. The United States grading system classifies vermiculite into three size ranges: grade 3, grade 4, and grade 5. The plaintiffs generally refer to grade 3 as “mid-size” vermiculite concentrate, grade 4 as “small” vermiculite concentrate, and grade 5 as “ultra-small” vermiculite concentrate. The defendants dispute the plaintiffs’ classification system. Most applications for vermiculite require that the concentrate be heated, a process known as “exfoliation” or “expansion.” This process causes the vermiculite to expand or pop in much the same way as popcorn pops when heated. Vermiculite is fireproof, and is used in a variety of horticultural, agricultural, industrial, and construction applications. Some of the applications for expanded vermiculite include the production of lightweight concrete, soil mixes, fertilizers, masonry block insulation, and spray-on fireproofing. Vermiculite concentrate is used to produce fire-rated drywall. Vermiculite is mined in a limited number of specific locations throughout the world, including China, Brazil, Australia, and Russia, and certain countries in Africa. It is imported primarily from companies doing business in South Africa and China. In the United States, vermiculite has been mined only in Virginia, South Carolina, and Montana, but deposits in Montana previously were found to be contaminated by asbestos fibers. Grace also asserts that vermiculite deposits exist in Colorado, Nevada, North Carolina, Texas, and Wyoming, but VVL claims that these deposits currently are not commercially viable, due in part to their low-quality. The three largest participants in the world-wide vermiculite industry are the South Africa-based Palabora Mining Company (“Palabora”), Grace, and ,WL. Pala-bora is the largest single producer of vermiculite in the world, and currently has twenty-five years’ worth of reserves (sometimes referred to as “mining rights”) in Africa. Grace and WL are the second- and third-largest vermiculite producers in the world, respectively, and until recently, the only American competitors in the vermiculite industry. In 1991, South Africa and China sold approximately 41,000 tons of vermiculite in North America, representing 23% of North American vermiculite sales. Since then, these imports increased substantially, to approximately 86,000 tons in 1998. In 1998, South African and Chinese imports represented approximately 33% of all North American vermiculite concentrate sales. The parties dispute the impact these foreign imports have on the domestic market. WL owns mining rights, conducts mining operations, and operates vermiculite processing plants in Virginia and South Carolina. WL’s South Carolina division does not process any vermiculite mined in Virginia. In 1991, WL sold approximately 57,000 tons of vermiculite concentrates in North America. Since then, WL increased its sales to approximately 80,000 tons in 1998. WL currently sells approximately 30% of all vermiculite concentrate in North America. At its current production rates, WL controls enough reserves in Virginia to last until the year 2012. WL has approximately eight years of additional reserves in South Carolina. Grace, a Connecticut corporation, currently conducts mining operations only in South Carolina. It previously mined in Montana (but ultimately closed those operations), and never mined in Virginia. However, Grace did control substantial mining rights in Louisa County, Virginia— 74-80% of available mining rights in the county — before its donations to HGSI in 1992. The plaintiffs allege that Grace also controlled approximately 82% of the mining rights in South Carolina, with WL’s South Carolina operation controlling the remaining 18%. (The defendants dispute this.) At least 2,000,000 tons of vermiculite reserves in South Carolina remain unleased by any mining company. Grace sells and uses vermiculite internally, and also sells both vermiculite concentrates and expanded vermiculite to third-parties. In 1991, Grace sold 86,157 tons of vermiculite in North America, representing approximately 47% of all North American vermiculite concentrate sales. By 1998, Grace sold approximately 38% of all vermiculite concentrates in North America. In the 1960s; Grace began exploring the possibility of purchasing vermiculite reserves in Louisa County. At that time, Grace was mining in Montana and in South Carolina, and believed it would need a “third mill” to replace depleting reserves or to add to existing reserves. To that end, Grace acquired substantial mining rights in Louisa County throughout the 1970s, either by buying properties containing vermiculite, or by leasing land from Louisa County property owners. Plaintiff M.F. Peers was one of those property owners. Grace purchased two properties from M.F. Peers on December 27, 1972. The first parcel (sometimes referred to as “Parcel I”) contains 262.98 acres, and the second parcel (sometimes referred to as “Parcel IF’) contains 276.42 acres. Grace purchased these properties for their logistical benefit to a vermiculite mining operation; it did not believe at that time that commercially valuable reserves existed on either parcel. (The parties dispute whether Grace so informed M.F. Peers.) Despite this belief, Grace entered into an agreement with M.F. Peers pursuant to which Grace would pay M.F. Peers “per ton” royalties if Grace, in its sole discretion, decided to mine the properties. Grace never mined the properties or paid a per ton royalty to M.F. Peers. Alfred D. Peers (M.F. Peers’s brother) and Elizabeth D. Peers, husband and wife (collectively, “A.D.Peers”), also owned land in Louisa County. Grace purchased two parcels from A.D. Peers on December 27, 1973: the 36.62 acre “Parcel A,” on which A.D. Peers resided, and the 228.99 acre “Parcel B.” An unrecorded agreement entered the same day established a per ton royalty rate that Grace would pay A.D. Peers, in the event that Grace, in its sole discretion, decided to mine the property. Grace believed that the A.D. Peers properties contained commercially valuable vermiculite reserves. Grace never mined the A.D. Peers properties or paid a per ton royalty to A.D. Peers. J. Murray and Ruth Hill also owned property in Louisa County, known as the “Brandy Farm.” On December 27, 1973, Grace leased a 60.24 acre parcel from the Hills known as “Brandy A.” Coincidentally, the Hills also lived on a 37-acre parcel. That parcel is known as “Brandy B.” Grace entered into an agreement to pay royalties to the Hills if Grace decided to mine Brandy A. Under the agreement, Grace had the duty of maintaining the buildings of Brandy B as long as the Hills lived there. The agreement provided in part that, once the Hills vacated Brandy B, “no person shall use or occupy any of the buildings ... or [Brandy B] without Grace’s prior written permission and upon such conditions as Grace may reasonably impose.” Historic Green Springs, Inc. v. Brandy Farm, Ltd., 32 Va. Cir. 98, 99 (1993). The Hills notified Grace that its maintenance duties would be triggered on October 1, 1984. Reluctant to assume the added costs of those responsibilities, Grace agreed with Brandy Farm, Ltd. (to which the properties since had been conveyed) to modify the agreement, to permit Brandy, Ltd. to lease the Brandy Farm in its entirety to third parties. See id. On May 17, 1976, Grace leased a 255.53 acre parcel from Elgin H. and Betty Craig Nininger, known as the “Nininger” property. Grace never mined the Brandy or Nininger properties. In 1976, WL acquired its first property in Louisa County, known as the “Purcell” property. The Purcell property contains 459 acres. The relative geographic positions of these properties proves to be relevant in this case. The point of reference is Route 22 in Louisa County, which runs east to west. Nininger is located south of Route 22, and all of the other properties are located north of Route 22. Of the northern properties, Purcell is located furthest east. West of Purcell is the M.F. Peers Parcel II. That parcel is a wooded area adjacent to the South Anna River. West of the southern portion M.F. Peers Parcel II are the Brandy parcels. Consequently, M.F. Peers’s Parcel II lies directly between the Brandy and Purcell properties. The Brandy properties also lie directly north of the Nininger property, across Route 22. The A.D. Peers properties are situated west of M.F. Peers Parcel II and the Brandy properties. West of A.D. Peers is the other M.F. Peers property, Parcel I. In 1974, part of Louisa County was designated a national landmark. It is called the Green Springs National Historic Landmark (the “Landmark”). HGSI is a nonprofit organization that is dedicated to the preservation of the Landmark. HGSI’s amended 1998 corporate charter states its purposes as follows: The Corporation is organized for charitable and educational purposes to maintain and protect the beautiful and historic Green Springs area of Louisa County, Virginia, as an important heritage for the Commonwealth of Virginia and her people, without pecuniary gain or profit to its members or to any private individual and not to engage in a regular business of a kind ordinarily carried on for profit. Its purposes shall include historical and ecological research and education; the development of a community land-use plan to eliminate blight and prevent future deterioration; to take and hold by bequest, devise, gift, grant, purchase, lease or otherwise, any property ... without limitation as to amount or value; to sell, convey, or otherwise dispose of any such property and to invest, reinvest, or deal with the principal or the income thereof in such manner as, in the judgment of the Directors, will best promote the general welfare of the Green Springs National Historic Landmark District without limitation, except such limitations, if any, as may be contained in the instrument under which such property is received ... and rendering assistance to like oriented organizations (historical and environmental). (Pis.’ Opp’n Ex. 16.) Many of the properties Grace acquired in Louisa County were located within, or adjacent to, the Landmark. From the time Grace began acquiring properties in Louisa County, Grace faced substantial opposition to its mining plans from HGSI, specifically from one of its directors, Ms. Rae Ely. Ms. Ely frequently appeared in opposition to Grace at meetings of the Louisa County Board of Supervisors. Having no other property besides Purcell, WL began mining in 1976. In 1991, Greg Poling of Grace had a conversation with Ned Gumble of WL, in which Mr. Gumble expressed WL’s interest in buying or leasing Grace’s Virginia reserves. Mr. Poling wrote to his superiors, recommending that negotiations with WL be pursued. Negotiations took place in mid-1991. Grace did not accept WL’s highest offer of $1.75 million, and the negotiations proved unsuccessful. Through discovery, the parties learned of the other side’s negotiation strategies. The lowest price Grace was willing to accept was $2.2 million, which happened to be the highest price WL was willing to pay. Following the failed negotiations, WL sought to acquire more reserves. On April 25, 1992, WL leased Brandy B from Brandy, Ltd. WL could not begin mining Brandy B until it acquired a permit to do so from the Louisa County Board of Supervisors. Also in 1992, Ms. Ely attended Grace’s annual shareholder meeting in Florida. She met with Grace’s Executive Vice President, Donald Kohnken, and attempted to persuade Grace to abandon any plans to mine in Louisa County. A senior Grace officer, Mr. Walsh, was charged with the responsibility of developing a response to Ms. Ely. Grace analyzed the desirability of its various options: holding its unmined properties in Louisa County, an option that entailed substantial carrying costs (such as property taxes, maintenance expenses, and annual rents of advanced royalties), donating its properties to HGSI, or selling its properties to WL. After meeting with Mr. Poling, among others, Mr. Walsh ultimately recommended that Grace donate its properties to HGSI. In late 1992, Grace began transferring its Louisa County properties to HGSI. The first transaction occurred on November 30, 1992. By quit claim deed of gift, Grace conveyed two properties to HGSI, one of which was M.F. Peers Parcel II, the parcel located between the Purcell and Brandy properties. Around the same time, WL was scheduled to appear at a hearing on its application for a permit to mine Brandy B. The November 30, 1992 deed contained the following restrictive covenants: 1.No part of the Real Estate shall ever be used or operated for the purpose of Mining or Mineral Production. The phrase “Mining or Mineral Production,” as used herein, shall include, but shall not be limited to, the following: a. The extraction, removal or relocation of ores, minerals, stone, gravel and soils (including, but not limited to, vermiculite), regardless of whether or not such material is under, on or above the surface of the Real Estate; b. Auger mining, underground mining, strip mining, open pit mining, quarrying, blasting, digging, hydraulic mining, dredging, tunnel mining, deep mining, surfact [sic] mining, placer mining, longwall mining, and any other method of mining not mentioned herein which hag been practiced, which is currently practiced or which may be practiced at any time in the future. 2. The Restrictive Covenants shall apply notwithstanding any attempt, whether successful or not, at restoration of the Real Estate through the process of reclamation or any other method which restores the Real Estate to the state in which it existed prior to Mining or Mineral Production. 3. No excavation or grading may be made on the Real Estate except for walls, footings, basements, or cellars which such excavation or grading shall be solely incidental to the erection and construction of residential and agricultural structures on the Real Estate. 4. The Real Estate shall be used solely for agricultural and residential purposes. Digging or plowing incidental only to residential or agricultural purposes shall be permitted. 5. Grantor [Grace] covenants and agrees, for itself, its successors in title and interest, and its assigns, that the Restrictive Covenants shall run with the land forever. (Pis.’ S.J. Mem. Ex. 27.) Four days after this conveyance, Ms. Ely of HGSI appeared at a Louisa County Board of Supervisors hearing on WL’s application for a permit to mine Brandy B. By quit claim deed of gift dated December 22, 1992, recorded December 23, 1992, Grace conveyed to HGSI its remaining Louisa County properties, with the exception of the A.D. Peers property. All of the properties conveyed in December 1992 contained the same restrictive covenants quoted above. Some of those properties were not located in, or adjacent to, the Landmark. On December 22, 1992, by “Assignment and Acceptance Agreement,” Grace assigned its Nininger and Brandy A leases to HGSI. Each of those leases contained the following provision: 5. Assignor and Assignee acknowledge that the Agreement creates no obligation upon Assignor to mine the Premises. Assignee, by acceptance of this Assignment, agrees not to mine the Premises and shall exert reasonable efforts to prevent mining on the Premises during the term of the Leasehold Estate created by the Lease Document. (Pis.’ S.J. Mem. Ex. 32.). WL received its permit to mine Brandy B in January 1993. The permit did not restrict the amount of reserves that could be mined. In June 1993, HGSI filed a lawsuit in the Circuit Court of Louisa County against WL, to enjoin WL and Brandy, Ltd. from mining Brandy B (sometimes referred to as the “Brandy suit”). See Histone Green Springs, Inc. v. Brandy Farm, Ltd., 32 Va. Cir. 98 (1993). HGSI contended that Grace’s original 1973 Brandy A agreement with the Hills gave the lessee of Brandy A (Grace, and then HGSI) discretion to determine whether mining could occur both on Brandy A and on Brandy B. See id. at 101. WL and Brandy, Ltd. filed a counterclaim, alleging that Grace’s Brandy A donation to HGSI breached Grace’s duty to the Hills (Brandy, Ltd.), to exercise its contractual discretion (whether to commence mining) in good faith, by assigning the lease with a non-mining provision to a company with no mining expertise. During the pendency of the lawsuit, the court (sometimes referred to as the “Brandy court”) issued a temporary injunction, which enjoined WL from mining Brandy B. However, HGSI did not pay the required bond, so the injunction was not effective. On September 28, 1993, the Brandy court found that the modification of the 1973 agreement “gave Brandy the right to exercise unfettered control over the entire property, in exchange for which Brandy released Grace from the obligation to maintain and secure the property.” Id. at 104. The court therefore denied HGSI’s claim. The court also found in favor of WL on its counterclaim, and rescinded the donation. HGSI appealed, but the Virginia Supreme Court denied HGSI’s petition on June 20, 1994. Brandy, Ltd. subsequently leased Brandy A to WL, leaving WL at liberty to mine both Brandy properties, which it did from 1994 forward. On December 13, 1993, Grace gave notice to A.D. Peers that it intended to donate the A.D. Peers property to HGSI. Pursuant to a provision in the original 1973 agreement between A.D. Peers and Grace, A.D. Peers had the option of buying back the 37 acre Parcel A in the event that Grace “resold” the property. On January 25, 1994, Grace deeded Parcel A back to A.D. Peers. Six days later, by deed dated January 31, 1994, Grace conveyed the A.D. Peers Parcel B to HGSI. This conveyance was made subject to the terms of the unrecorded December 27, 1973 agreement between A.D. Peers and Grace, pursuant to which Grace agreed to pay per ton vermiculite mining royalties to A.D. Peers. The January 31, 1994 deed contained no written restrictive covenants not to mine. By “Correction Quit Claim Deed of Gift,” recorded May 26, 1994, Grace and HGSI revised the restrictive covenants of the Lloyd I and Harris properties, originally conveyed as part of the December 22, 1992 donations. The correction replaced the general prohibition of any type of mining with a restriction that prohibited only the mining of vermiculite. It reads, in relevant part: 1. No part of the Real Estate shall ever be used or operated for the purpose of Vermiculite Mining. The phrase “Vermiculite Mining,” as used herein, shall include, but shall not be limited to, the following: a. The extraction, removal or relocation of vermiculite ores, regardless of whether or not such material is under, on or above the surface of the Real Estate; b. Auger mining, underground mining, strip mining, open pit mining, quarrying, blasting, digging, hydraulic mining, dredging, tunnel mining, deep mining, surface mining, placer mining, longwall mining, and any other method of mining not mentioned herein which has been practiced, which is currently practiced or which may be practiced at any time in the future for the removal of vermiculite ores for the production of vermiculite or vermiculite products. (Pis.’ S.J. Mem. Ex. 40.) WL exhausted its Purcell reserves at some' point in 1994, but in September of that year, A.D. Peers entered into an agreement with WL whereby WL would be permitted to miñe Parcel A. In or around May 1995, HGSI stopped making payments on its Nininger lease and the lease was terminated. The Nininger property contains approximately 700,000 tons— representing eight to twelve years’ worth — of vermiculite reserves. The property is zoned for vermiculite mining. Since May 1995, Nininger has been, and remains, unleased by any mining company. The Nininger property represents more than one-third of the reserves that WL originally offered to purchase from Grace. In 1995 and 1996, the plaintiffs filed three separate actions against the defendants in the Western District of Virginia, which were consolidated in the present case. The plaintiffs complained that the 1992 and 1994 donations from Grace to HGSI removed over 80% of vermiculite mining rights from the “Louisa County mining rights market,” from 1993 to mid-1994. WL claims it participates in that market as a buyer of mining rights in Louisa County. The plaintiffs also allege that the transactions foreclosed over 40% of the raw vermiculite concentrate in the “North American vermiculite concentrates market,” from 1993 to mid-1994. According to the plaintiffs, the donations and restrictive covenants prohibiting all future mining of vermiculite evidence a conspiracy between Grace and HGSI to restrain trade in the Louisa County mining rights market. The plaintiffs complain that the alleged conspiracy between Grace and HGSI, in which they agreed (expressly or implicitly) that no vermiculite mining will occur, hinders WL (or other potentially interested parties) from acquiring Louisa County vermiculite mining rights, and forecloses the supply of raw vermiculite from Louisa County. The donations, the plaintiffs assert, were exclusionary acts employed by Grace, by which Grace achieved (or attempted to achieve) monopoly power in the North American vermiculite concentrates market. WL alleges that the donations also evidence a conspiracy, entered into between both defendants, to monopolize the same. WL claims that the Graee-HGSI transactions caused it to suffer increased costs and lost profits. As a remedy, WL seeks damages for past and future harm, and equitable relief entailing rescission of the conveyances and divestiture of Grace’s property interests. The Peers seek lost royalties. Their primarily ground for relief is that Grace violated its duty to exercise discretion in good faith when it donated the Peers’ properties to an organization that is opposed to mining. The Peers claim the donations defeated the original purpose of their contracts with Grace, and injured their reasonable expectations under those contracts, because they sold their land to Grace in exchange for the possibility of obtaining per ton mining royalties. In Civil Action No. 3:95CV0015, filed February 21, 1995, WL sued both Grace and HGSI. Count I alleges that both defendants entered into an agreement that restrained trade in violation of § 1 of the Sherman Act; Count II alleges monopolization by Grace in violation of § 2 of the Sherman Act; Count III alleges attempted monopolization by Grace in violation of § 2 of the Sherman Act; Count IV alleges conspiracy to monopolize in violation of § 2 of the Sherman Act against both defendants; Count V alleges violations by both defendants of the Virginia Antitrust Act, see Va.Code §§ 59.1-9.1 et seq. (Michie 1998 & Supp.1999); and Count VI alleges both defendants conspired to injure another in trade, business, or profession, in violation of the Virginia Conspiracy Act, see Va.Code §§ 18.2-499, -500 (Michie 1996 & Supp.1999). In Civil Action No. 3:96CV0012, filed March 12, 1996, WL lodged a complaint against Grace on behalf of A.D. Peers, who assigned his claims to WL. Counts I through V allege non-antitrust state law claims for unjust enrichment, breach of Grace’s contractual duty to exercise discretion in good faith, breach of Grace’s contractual duty to pay royalties to A.D. Peers, waste, and conversion, respectively. Counts VI through IX allege federal and state antitrust violations, including violation of § 1 of the Sherman Act, monopolization and attempted monopolization in violation of § 2 of the Sherman Act, and violations of corresponding provisions of the Virginia Antitrust Act. In Civil Action No. 3:96CV0013, also filed March 12, 1996, M.F. Peers and WL sued ‘Grace. M.F. Peers assigned a 65% interest in his claims to WL. Counts I to V allege non-antitrust state law claims for unjust enrichment, breach of Grace’s contractual duty to exercise discretion in good faith, breach of Grace’s contractual duty to pay royalties to M.F. Peers, waste, and conversion, respectively. Counts VI to IX allege federal and state antitrust violations, including violation of § 1 of the Sherman Act, monopolization and attempted monopolization in violation of § 2 of the Sherman Act, and violations of corresponding provisions of the Virginia Antitrust Act. On April 22, 1997, the court granted in part the defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The court dismissed all claims against HGSI on the ground that, as a nonprofit organization engaged in non-commercial activities, HGSI was exempt from liability under the Sherman Act. See Virginia Vermiculite, Ltd. v. W.R. Grace & Co.Conn., 965 F.Supp. 802, 816 (W.D.Va.1997). The Fourth Circuit Court of Appeals reversed in part, holding, inter alia, that it is the nature of the transaction, not the nature of the party to the transaction, that determines whether that party may be liable under the Sherman Act. See Virginia Vermiculite, Ltd. v. W.R. Grace & Co.Conn., 156 F.3d 535, 541 (4th Cir.1998). The court of appeals further found that the plaintiffs’ complaints sufficiently alleged that the transactions between HGSI and Grace were “essentially commercial,” subjecting both parties to the antitrust laws. See id. On December 10, 1999, Grace and HGSI executed two “Releases of Restrictive Covenants” with respect to each of the properties donated to HGSI that included restrictive covenants. The releases included the restrictions on the M.F. Peers properties, and provide that Grace, “without any admission of liability and wrongdoing ... does declare the Restrictive Covenants to be null and void, and of no further force and effect, and releases the same to the full extent permitted by law.” (Grace S.J. Mem. Ex. 19 at 4.) Less than'two weeks later, on December 22, 1999, all of the parties filed motions for summary judgment. The following summarizes the general issues on which the motions are based. Grace and HGSI seek summary judgment on all the plaintiffs’ federal antitrust claims. HGSI also moves the court to find that, as a nonprofit preservationist organization engaged in noncommercial activity, and pursuant to the provisions of the National Environmental Policy Act, see 42 U.S.C.A. § 4321 (West 1994 & Supp.2000), and the National Historic Preservation Act, see 16 U.S.C.A. § 470 (West 1985 & Supp.2000), HGSI should not be subject to treble damages under the Sherman Act. The plaintiffs crossmove for summary judgment on these exemption issues. The plaintiffs and HGSI cross-move for summary judgment on HGSI’s First Amendment affirmative defense. In addition, the plaintiffs seek summary judgment on HGSI’s “SLAPP suit” affirmative defense, and HGSI seeks summary judgment based on laches and unclean hands. The defendants also move for summary judgment on all of the plaintiffs’ state law claims. The plaintiffs cross-move on the state antitrust claim corresponding to § 1, on WL’s Virginia Conspiracy Act claim, and on the Peers’ claims regarding Grace’s duty to exercise discretion in good faith. The court shall resolve these issues seriatim. On May 4, 2000, the court granted HGSI’s motion to exclude the report and testimony of the plaintiffs’ only proposed expert on antitrust economics, Mr. Seth Schwartz. See Virginia Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 98 F.Supp.2d 729 (W.D.Va.2000). As a result, the defendants’ principal ground for summary judgment is that, without an expert who can provide testimony on economic issues, there is an absence of evidence to support an essential element of the plaintiffs’ antitrust claims, i.e. the requirement that the plaintiffs define the relevant market in which they allege the wrongful conduct occurred. II. Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Issues of material fact are genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court’s function is “not ... to weigh the evidence and determine the truth of the matter ... [but to] determine] whether there is a need for a trial.” Id. at 249-50, 106 S.Ct. 2505. “[0]n summary judgment motions in antitrust cases, the Supreme Court has instructed that when there is evidence of conduct that is consistent with both legitimate competition and an illegal conspiracy, courts may not infer that an illegal conspiracy has occurred without other evidence.” Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317, 1323 (4th Cir.1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party moving for summary judgment has the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions” of the record showing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmovant bears the burden of persuasion at trial, the movant may discharge its initial burden either by providing evidence that negates an essential element of the opposing party’s case, see id. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting) (agreeing with the legal reasoning of the majority, and elaborating on the parties’ respective burdens of proof ), or “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. If the movant does not satisfy its burden, summary judgment must be denied. If the movant does satisfy its burden, then the burden shifts to the nonmoving party to present evidence “sufficient to establish the existence of [every] element essential to that [nonmoving] party’s case, for which that [nonmoving] party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. “[A] complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. 2548. “If the [nonmoving party’s] evidence is ... not significantly probative ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). There must be more than a mere “scintilla” of evidence to support the other party’s case. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. When the movant bears the burden of persuasion at trial, as is the case when a plaintiff moves for summary judgment on its own claims, the movant not only must satisfy the initial burden of production on the summary judgment motion by identifying the evidence “which it believes demonstrate[s] the absence of a genuine issue of material fact,” Celotex, All U.S. at 323,106 S.Ct. 2548, but also the ultimate burden of persuasion on the claim itself by “supporting] its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Id. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting). If the movant makes such an affirmative showing, the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial” on those claims. Fed. R.Civ.P. 56(e). A. SHERMAN ACT § 1 Section one of the Sherman Act provides: “Every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal.” 15 U.S.C.A. § 1 (West 1997). To establish a § 1 violation, the plaintiffs ultimately must prove four essential elements: (1) the defendants entered into an unlawful contract, combination, or conspiracy; (2) the objects and conduct pursuant to the conspiracy were illegal; (3) the conspiracy imposes an unreasonable restraint on trade; and (4) the concerted action caused “antitrust injury.” See Oksanen v. Page Mem’l Hosp., 945 F.2d 696, 702, 708 (4th Cir.1991); Terry’s Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 n. 10 (4th Cir.1985). The court must determine whether triable issues exist as to each of these elements. See M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir.1992). 1. EVIDENCE OF A CONTRACT, COMBINATION, OR CONSPIRACY The defendants contend that the plaintiffs do not have sufficient evidence to establish a contract, combination, or conspiracy under § 1. This element distinguishes between independent and concerted action. “Concerted action is the essence of a section 1 claim.” Terry’s Floor Fashions, 763 F.2d at 611. To survive summary judgment on this element, the plaintiffs have “a twofold evidentiary burden.” Laurel Sand & Gravel, Inc. v. CSX Trans., Inc., 924 F.2d 539, 543 (4th Cir. 1991). First, they must present direct or circumstantial evidence that reasonably tends to prove that the defendants “had a ‘conscious commitment to a common scheme designed to achieve an unlawful objective.’ ” Id. (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). Second, this evidence must “tend[ ] to exclude the possibility that the alleged conspirators acted independently,” 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, 465 U.S. at 764, 104 S.Ct. 1464) (internal quotation marks omitted), or “based upon a legitimate business purpose.” Laurel Sand & Gravel, 924 F.2d at 543. (A) EVIDENCE OF A CONSCIOUS COMMITMENT TO A COMMON SCHEME, DESIGNED TO ACHIEVE AN UNLAWFUL OBJECTIVE The plaintiffs allege that Grace’s donations to HGSI, combined with either written or unwritten (sub rosa) agreements not to mine, constitute a contract, combination, or conspiracy to restrain trade in the Louisa County, Virginia, mining rights market. See Virginia Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535 (4th Cir.1998) (noting that the plaintiffs “alleged that the entire transaction between Grace and HGSI — comprising both the donation of the lands and the nonmining agreements — constituted such an agreement, combination, or conspiracy” (emphasis in original)). The plaintiffs further claim that the conspiracy was designed “to prevent WL or any other competitor of Grace from acquiring further mining rights in Louisa County, and thereby eventually stop vermiculite mining in Louisa County,” (Pl.’s 3d Am. Compl. ¶ 39), and “to permanently foreclose significant sources of supply of raw vermiculite to WL or any other firm competing with Grace in the production and sale of vermiculite concentrates, and eventually to foreclose to rivals all supply of raw vermiculite in Louisa County,” (PL’s 3d Am. Compl. ¶ 40). The plaintiffs intend to prove that Grace and HGSI entered into a contract, combination, or conspiracy to restrain trade by providing evidence of: (1) Grace’s 1992 donation of the M.F. Peers properties to HGSI with restrictive covenants not to mine; (2) Grace’s 1992 donation of its remaining properties in Louisa County (except the A.D. Peers property) to HGSI with restrictive covenants not to mine; (3) Grace’s 1992 assignment of the Brandy A lease to HGSI with restrictive covenants not to mine; (4) Grace’s 1992 assignment of the Nininger lease to HGSI with restrictive covenants not to mine; (5) Grace’s 1994 donation of the A.D. Peers Parcel B property to HGSI with an accompanying sub rosa agreement not to mine Parcel B; and (6) a sub rosa agreement between Grace and HGSI to prevent WL from mining its own property, Brandy B. (1) 1992 DONATIONS All of the 1992 donations from Grace to HGSI — both the deed donations and lease assignments — contained express restrictive covenants not to mine the donated properties. The quit claim deeds of gift of nine parcels contained restrictive covenants that provided: “No part of the Real Estate shall ever be used or operated for the purpose of Mining or Mineral Production ... including, but not limited to, [the extraction, removal, or relocation of] vermiculite .... ” (Pis.’ S.J. Mem. Exs. 27, 30.) The 1992 lease assignments contained a similar provision: “[HGSI] agrees not to mine the Premises and shall exert reasonable efforts to prevent mining on the premises.... ” (Pis.’ S.J. Mem. Ex. 32.) Grace concedes that the donations containing these restrictions satisfy the concerted action requirement of § 1. HGSI, however, argues that there is no evidence of concerted action besides the deeds themselves, and that merely engaging in these transactions is not evidence of concerted action. This argument ignores that these deeds and lease assignments do not simply evidence an agreement to transfer property rights; they also evidence an explicit agreement between the parties to prevent mining on the properties. Evidence of the donations containing restrictive covenants alone satisfies the plaintiffs’ burden of producing sufficient evidence to establish concerted action under § l. (2) 1994 A.D. PEERS DONATION Although Grace concedes that the donations with restrictive covenants satisfy the concerted action requirement, it argues that the plaintiffs have no evidence that Grace’s 1994 donation of the A.D. Peers Parcel B property was accompanied by a sub rosa agreement between the defendants to prevent mining on the same. The defendants contend that such an agreement is inconsistent with the Parcel A buyback provision, and also refer to the deposition testimony of HGSI’s president, Ms. Ely, denying the existence of such an agreement. Therefore, both defendants contend that the plaintiffs should be prevented from making this argument at trial. The court is not convinced that the plaintiffs have no evidence of an A.D. Peers sub rosa agreement. On the contrary, there is substantial evidence that such an agreement does exist. The plaintiffs produced evidence that Grace issued a September 29, 1992 press release announcing a package of donations to HGSI, and that the original drafts of the 1992 donations included AD. Peers among the donations subject to the written restrictive covenants. WL produced a letter from HGSI to Grace indicating that the only reason the written restrictive covenant was abandoned from the A.D. Peers property was because the Brandy decision made clear that such written restrictions would not survive judicial scrutiny. A reasonable jury could conclude from this letter that the restriction itself was not abandoned, but only the written memorialization of that restriction. The plaintiffs also have evidence that the only reason the A.D. Peers donation did not occur with the rest of the 1992 donations was because HGSI and Grace agreed to delay the donation in an attempt to injure WL. The 1973 agreement relating to A.D. Peers’s original sale of his properties to Grace included a provision whereby A.D. Peers had the option of buying back Parcel A of that property if Grace gave notice of its “intent to resell” the entire AD. Peers property to a third party. The plaintiffs argue that the reason Grace did not donate the A.D. Peers property to HGSI in 1992 was because Grace believed that if the buy-back provision were exercised, WL would acquire the mining rights on Parcel A (as it ultimately did). The plaintiffs produced a Grace document to support their argument, which reads in part: Grace did not donate ... [A.D. Peers] to [HGSI] because of an option which Peers holds to purchase back 37 acres designated as Parcel “A” if Grace sold the property ... Parcel “A” is thought to contain vermiculite reserves which Peers could lease to Virginia Vermiculite if he exercised the option to purchase the parcel. (Letter from G.E. Poling to R.C. Walsh (Feb. 23, 1993), Pis.’ Reply Mem. Ex. 2.; see also Ex. 4 (“If Grace offered to sell [A.D. Peers’s] property back he would have, in turn, sold it or leased vermiculite rights to Virginia Vermiculite. Thus, the mining of the Louisa, Virginia area would continue for many more years by our competitor.”).) WL argues that the defendants delayed the A.D. Peers donation (and thus prevented WL from mining Parcel A) to determine whether they could “starve” WL out of reserves. In late 1992, WL was attempting to procure permits to mine Brandy B, at that time its only other reserve besides Purcell. Whether a delay of the A.D. Peers donation would be effective depended on how long WL’s permit would allow WL to mine Brandy B. The plaintiffs produced several internal Grace memoranda which suggest this is exactly what Grace intended. One memorandum states, in relevant part: Given the impact permits could have on the [Brandy B] reserves (two years versus ten years), I propose we enter into an understanding with [HGSI] to delay the donation of the Alfred Peers Property until such time as the permits are granted on [Brandy B] property. If the permits restrict [WL] to a few years of reserves, a multi-year delay on donating Peers could assure [WL] does not mine Parcel “A” as well. (Letter from G.E. Poling to R.C. Walsh (Nov. 10, 1992), Pis.’ S.J. Mem. Ex. 24.) WL also provided a memorandum indicating that once WL obtained a permit to mine Brandy B, Grace no longer thought it important to withhold the A.D. Peers donation: The availability of Parcel “A” to Virginia Vermiculite was deemed significant only if Virginia Vermiculite’s efforts to open a new mine on the adjacent [Brandy B] property was severely restricted by the pending use permit. A conditional use permit has subsequently been granted to Virginia Vermiculite which will not limit their mining activities substantially. ... I recommend that we ... proceed with the donation of the Peer’s [sic] property to [HGSI]. (Letter from G.E. Poling to R.C. Walsh (Feb. 23, 1993), Pis.’ Reply Mem. Ex. 2.) Another Grace memorandum discusses a general “strategy of keeping the reserves out of the hands of our adjacent competitor (desirable)” and of “keeping the reserves off the market.” (Letter from R.C. Walsh to D.H. Kohnken (Sept. 17, 1992), Pis.’ S.J. Mem. Ex. 20, at G002792-93.) All of these memoranda, the initial draft deeds which included the A.D. Peers property in the 1992 donations, and the fact that the A.D. Peers property was not donated until 1994, all constitute circumstantial evidence that Grace and HGSI did reach a sub rosa “understanding” to “assure [WL] ... not mine” the A.D. Peers property. Therefore, summary judgment on this issue must be denied. (3) SUB ROSA AGREEMENT TO PREVENT MINING ON BRANDY B WL asserts that HGSI’s lawsuit to enjoin WL from mining Brandy B was the outcome of a prior sub rosa conspiracy between both defendants to prevent mining on Brandy B. The basis of the Brandy suit was that Clause 12(E) of the original Brandy A lease between Brandy, Ltd. and Grace, which Grace ultimately assigned to HGSI in 1992, provided the Brandy A lessee with rights to control the use of Brandy B. Clause 12(E) provided, in part, that “no person shall use ... Parcel B without [the lessee’s] prior written permission.” The Historic Green Springs, Inc. v. Brandy Farm, Ltd., 32 Va. Cir. 98, 99 (1993). The Brandy court ultimately found that a modification of the lease divested the lessee of any control over mining on Brandy B. The defendants claim the plaintiffs have no evidence that Grace and HGSI entered into any prior sub rosa agreement to prevent WL from mining Brandy B. Grace, which was not a party to the Brandy litigation, has evidence that it never thought the Brandy A lease provided the lessee with rights to enjoin mining on Brandy B, that Grace was opposed to the Brandy litigation, and that HGSI believed the decision to sue was HGSI’s alone. To satisfy its burden of showing a dispute of material fact, WL produced evidence that HGSI wrote to Grace requesting that Grace convey the properties adjacent to Brandy B to give HGSI “standing” before the Board of Supervisors to contest the granting of a Brandy B mining permit to WL. One internal memorandum from Grace’s Mr. Walsh, in discussing WL’s plans to obtain permitting for Brandy B, states: “Rae Ely and friends are determined to take on Virginia Vermiculite in what she labels as ‘the war of all holy wars’ ” against WL. (Letter from R.C. Walsh to D.H. Kohnken (Sept. 17, 1992), Pis.’ S.J. Mem. Ex. 20 at G002794.) WL also argues that the 1992 Brandy A lease assignment, which contained restrictive covenants requiring HGSI to make “reasonable efforts to prevent mining on the premises,” when considered in conjunction with Clause 12(E), obligated HGSI to prevent WL from mining Brandy B. WL points to a facsimile from HGSI to Grace, wherein HGSI requests that Grace “review and comment” on an HGSI letter attempting to enforce HGSI’s ostensible rights under Clause 12(E). WL also has evidence that a Grace attorney reviewed and edited HGSI’s Brandy complaint. The plaintiffs allege they are not challenging the litigation itself or HGSI’s opposition to the Brandy B permit per se, but rather an ex ante agreement between the defendants “about how property and contract rights could be exercised to further their conspiracy.” (Pis.’ Opp’n at 26.) HGSI’s opposition to the permit and HGSI’s filing of the Brandy lawsuit, the plaintiffs claim, are simply the ex post consequences of that agreement. The only justifiable inference that can be drawn in the plaintiffs’ favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), is that the alleged sub rosa agreement was designed only to give HGSI standing to oppose WL’s permit to mine Brandy B, and to prevent mining thereon through the use of a lawsuit. This argument is foreclosed by the Noerr-Penning-ton doctrine, which immunizes from antitrust liability “anti-competitive conduct undertaken to persuade,or petition government entities, or to utilize judicial or quasijudicial mechanisms.” Ottensmeyer v. Chesapeake & Potomac Tel. Co., 756 F.2d 986, 992 (4th Cir.1985). See California Motor Trans. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 80 L.Ed.2d 642 (1972) (extending the doctrine to “the approach of citizens ... to administrative agencies ... and to courts”); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (“[T]he Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.”). The Noerr-Pennington doctrine is based on the First Amendment, protecting the rights to freely associate and petition the government. See California Motor Trans. Co., 404 U.S. at 510-11, 92 S.Ct. 609. Courts have extended the doctrine to reach concerted acts occurring ex ante which ultimately result in actual petitioning of the government, see Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358, 1367 (5th Cir. 1983) (“Given that petitioning immunity protects joint litigation, it would be absurd to hold that it does not protect those acts reasonably and normally attendant upon effective litigation.”); and concerted efforts to petition permitting boards, see Baltimore Scrap Corp. v. David J. Joseph Co., 81 F.Supp.2d 602, 603 (D.Md.2000) (holding that Noerr-Pennington immunity extends to anticompetitive, clandestine attempts to contest the granting of zoning permit). Under this doctrine, seeking to avail oneself of government action only can violate the antitrust laws when the efforts to do so are a “sham.” See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (holding that litigation is entitled to immunity from the antitrust laws unless it is “objectively baseless,” and that a litigant’s subjective motivation is otherwise irrelevant); Hospital Bldg. Co. v. Trustees of Rex Hosp., 791 F.2d 288, 292 (4th Cir.1986) (elaborating that a sham exists if “the defendant’s activity was intended to injure the plaintiff directly rather than through a governmental decision ... where he has no reasonable expectation of obtaining the favorable ruling” (quoting P. Areeda, Antitrust Lato ¶ 203.1a (Supp.1982). The plaintiffs do not claim that the “sham” exception to the Noerr-Penning-ton doctrine applies. Although the evidence supports the plaintiffs’ position that the defendants entered into the Brandy A lease to block the permitting of Brandy B or to bring a lawsuit to prevent mining on Brandy B, such actions are not illegal under the antitrust laws unless they are undertaken as a sham, without a reasonable expectation of success. The plaintiffs do not allege or produce any evidence that suggests HGSI undertook to influence the permitting board or to bring the Brandy litigation without a reasonable expectation of obtaining a favorable ruling, or that HGSI’s efforts were objectively baseless. The plaintiffs present no evidence that the alleged sub rosa agreement, even if it existed, was anything other than an agreement to persuade the government to prevent mining on Brandy B. That agreement did not itself restrain mining on Brandy B; the restraint would occur only as the consequence of governmental action. See Federal Trade Comm’n v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 425, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990) (distinguishing between restraints that are the intended consequence of government action, which are protected, and restraints that are the means by which the defendants seek to obtain favorable government action, which are not protected). In other words, even if the defendants entered into an agreement “about how property and contract rights could be exercised to further their conspiracy,” (Pis.’ Opp’n at 26), the plaintiffs provide no evidence that the defendants intended to exercise these rights in any manner other than by petitioning the government. Therefore, the plaintiffs cannot support their evidence of a conspiracy with evidence that the defendants entered into the Brandy A lease to influence the permitting board or to pursue the Brandy litigation. Summary judgment on this issue must be granted in the defendants’ favor. (B) EVIDENCE EXCLUDING INDEPENDENT ACTION AND A LEGITIMATE BUSINESS PURPOSE The plaintiffs also must produce evidence that “excludes the possibility that the [defendants] ... acted independently or based upon a legitimate business purpose.” Laurel Sand & Gravel, 924 F.2d at 543. In this case, “it is not necessary that HGSI have shared Grace’s alleged anti-competitive motive in entering into a proscribed restraint; it is sufficient that HGSI, regardless of its own motive, merely acquiesced in the restraint with the knowledge that it would have anticompeti-tive effects.” Virginia Venniculite, 156 F.3d at 541. HGSI argues that there is no evidence it acquiesced in the restraint with knowledge that it would have anticompeti-tive effects, and that the evidence only shows that HGSI acted with the legitimate purpose of preserving the Landmark. HGSI’s argument has little merit. The plaintiffs have come forward with substantial evidence that Grace had motives other than preservation, including: foreclosing the supply of Virginia mining rights; harming the business of WL, its sole domestic competitor, by preventing it from acquiring further mining rights in Louisa County; and foreclosing the supply of Louisa County vermiculite concentrates. The plaintiffs also produced evidence that HGSI shared these unlawful motives or at least knew of and acquiesced in them. The plaintiffs’ evidence begins with the restrictive covenants contained in the 1992 donations and lease assignments — entered into between both defendants — which specifically prohibited mining, “including, but not limited to, vermiculite” mining. These restrictions prevented mining even if restoration methods could be used to avoid problems with preservation. On May 26, 1994, HGSI and Grace signed a “Correction Quit Claim Deed of Gift,” which changed the restrictive covenants of two properties that originally were part of Grace’s 1992 donations. The corrected restrictive covenants precluded only the mining of vermiculite, but no other type of mining. The properties were not located in the historic area HGSI asserts it was attempting to preserve by entering into the covenants. This evidence tends to prove that Grace’s motive was to suppress mining in Louisa County, that HGSI knew of and acquiesced in this motive, and that HGSI’s motive was not simply to preserve the Landmark. The plaintiffs proffered further evidence that Grace’s donations were made with the unlawful motive of suppressing competition, including a Grace document outlining Grace’s options for the disposition of the Louisa County properties. That document contains questions and handwritten responses, and states in part, “How much would our vermiculite business benefit from Virginia [WL] having to close down due to reserves? $1.5 million. ... What would be the financial impact on our business if they had our reserves? $230 [illegible] / yr.[;] $1.5 million disc.” (Letter from G.E. Poling to R.J. Bettacchi & R.H. Locke (July 27, 1992), Pis.’ S.J. Mem. Ex. 10 (emphasis in original).) Another document suggests these figures signify an after-tax benefit of $230,000 per year, and a $1.5 million dollar benefit to Grace, discounted to present value. The plaintiffs also proffered the above-referenced evidence of Grace’s “strategy of keeping the reserves out of the hands of an adjacent competitor,” evidence describing Grace’s continued payment of advanced royalties as “primarily a defensive measure serving to keep Virginia Vermiculite from securing those reserves,” and evidence Grace initially held onto its properties while “assessing Virginia Vermiculite’s ability to continue to operate.” (Pis.’ S.J. Mem. Ex. 10.) The plaintiffs also have evidence that Grace analyzed the option of holding the reserves, and concluded the benefit would be to “[k]eep Virginia Vermiculite from gaining needed reserves.” (Pis.’ S.J. Mem. Ex. 30, at G010427.) Evidence that HGSI knew of and acquiesced in these motives, other than the express restrictions on mining, is found in statements made by HGSI’s president, Rae Ely. Ms. Ely testified in a deposition that, since 1972, she has conducted intensive research into the subject of vermiculite mining, and knows “a fair amount” about vermiculite mining in the United States. She sent a facsimile to Grace describing HGSI’s motivation to “ensure the preservation of the area and prevent future mining.” (Letter from Rae Ely to Bob Walsh (Sept. 28, 1992), Pis.’ Opp’n Ex. 21.) That same facsimile describes Grace and HGSI as having “joint and several goals,” as maintaining “the Grace/HGSI cooperative undertaking,” and as avoiding inclusion of third parties who might “defeat the original objectives.” The plaintiffs also claim that HGSI’s only motivation in leasing the Nininger property from Grace was to deprive WL of vermiculite reserves. The plaintiffs allege that HGSI stopped making payments on its Nininger lease because the Brandy decision frustrated the defendants’ joint goal of driving WL out of business, which was HGSI’s only purpose in retaining that property. The plaintiffs provide compelling evidence to this effect. Ms. Ely of HGSI wrote a letter to an attorney for Grace, stating that the effect of the Virginia Supreme Court’s denial of HGSI’s Brandy appeal, “is to open Parcel B AND Parcel A of the [Brandy] tract ... This appears to be enough reserve to keep WL in business for the duration of the Nininger lease.” (Letter from Rae H. Ely to 0. Mario Fa-vorito (Aug. 9, 1994), Pis.’ S.J. Mem. Ex. 44.) Shortly thereafter, HGSI stopped making payments on its Nininger lease. All of this evidence tends to exclude the possibility that WL and Grace were acting independently, based on a legitimate business purpose. The defendants dispute the inferences that can be drawn from this evidence, but that is precisely when summary judgment should not be granted. In its review of the record, the court also has uncovered evidence suggesting— contrary to representations heretofore made by HGSI — that HGSI intends to mine the Louisa County properties. For example, on October 7, 1993, counsel for HGSI wrote a letter to a real estate attorney who served as outside counsel to Grace on a variety of matters, which stated, “In the event my client mines, by separate agreement, my client would agree to transfer all proceeds to W.R. Grace and Company.” (Letter from Robert B. Smith, III to Hammill D. Jones (Oct. 7, 1993).) Four days later, that same Grace real estate attorney wrote a letter to Grace’s in-house counsel, expressing that, “If Grace has an interest in preventing future mining by Virginia Vermiculite, while affording Green Springs the opportunity for future mining, the above ideas are worthy of consideration.” (Letter from Hammill D. “Skip” Jones, Jr. to Kevin T. Grady (Oct. 11, 1993).) On November 12, 1993, the same real estate attorney sent another letter to Grace’s in-house counsel, stating, “If the Restated Assignments are effectiv