Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW MICHAEL, Senior District Judge. With the consent of the parties, the court tried this case without a jury. The trial began on September 11, 2000, and ended on October 2, 2000. Having thoroughly considered all of the evidence and testimony, the court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Inevitably, in a case as complex as that at the bar, some findings of fact involve mixed questions of fact and law. In those instances, findings of fact and conclusions of law have been stated as a unit as an aid to following the flow of information and the impact of that flow on the conclusions of law. By main strength and awkwardness, the fact matters and the law conclusions could have been separated, but it is thought that the sometimes combined usage herein, and occasional repetition thereof, are more conducive to the proper flow of the opinion’s analysis. JURISDICTION The court has original jurisdiction over this civil action pursuant to 15 U.S.C. §§ 15, 22, 26, and 28 U.S.C. §§ 1331, 1337, 1367. ISSUES PRESENTED The issues presented are as follows: 1. Whether the plaintiff, Virginia Vermiculite, Limited (“WL”), proved by a preponderance of the evidence that the remaining defendant, The Historic Green Springs, Incorporated (“HGSI”), conspired to monopolize in violation of the Sherman Act and Virginia Antitrust Act. See 15 U.S.C.A. § 2 (West 1997 & Supp.2000); Va.Code Ann. § 59.1-9.6 (Michie 1998 & Supp.2000). 2. Whether WL proved by clear and convincing evidence that HGSI conspired to injure WL in its reputation, trade, business, or profession, in violation of the Virginia Conspiracy Act. See Va.Code Ann. §§ 18.2-499, -500 (Michie 1996 & Supp. 2000). FINDINGS OF FACT 1. WL is a Virginia limited partnership engaged in the business of mining, processing, and selling a mineral known as vermiculite. (Stipulation of Facts (Aug. 28, 2000) (“Stip.”) ¶ 1.) 2. W.R. Grace & Co.-Conn. (“Grace”) is a Connecticut corporation engaged in the supply of specialty chemical, construction, and container products servicing the food, consumer products, petroleum refinery, and construction industries. One of Grace’s businesses is engaged in the mining, processing, and selling of vermiculite. (StipJ 2.) Grace was a defendant in this and two previously consolidated cases, but reached a settlement with VVL immediately prior to trial. On the first day of trial, the court endorsed the settlement and dismissed Grace from all three actions. 3. HGSI is a Virginia nonprofit corporation dedicated to the preservation of the Green Springs National Historic Landmark (the “District” or “Landmark District”). (Stip-¶ 58.) 4. The Landmark District is located in Louisa County, Virginia. It covers an area of approximately 14,000 acres, and is roughly the shape of an oval basin seven miles long and five miles wide. (Def.’s Trial Ex. (“DTX”) 92.) 5. The Landmark District was designated a national landmark because it contains a wide variety of historic homes in a clearly-defined rural landscape. (Trial Transcript (“Tr.”) at 2134-35.) 6. The Landmark District also contains substantial deposits of vermiculite. 7. Vermiculite is a naturally-occurring, mica-like mineral found in the ground. (Stip. ¶ 3; Pl.’s Trial Ex. (“PTX”) 383 at 16772.) 8. Mining is accomplished by the “open pit” method using bulldozers, draglines, and backhoes. The topsoil is removed and stockpiled for later reclamation. (PTX 383 at G16786; Tr. at 122-23,179-84.) 9. When vermiculite is mined, the ore is taken to a processing plant or mill relatively close to the mining site, and processed to remove moisture, rock, dirt, dust, extraneous material, and small particles of vermiculite that are not saleable (collectively, the “tailings”). (Stip. ¶ 4; Tr. at 121-23,140.) 10. To transport the ore from the mine to the processing mill, mining companies typically load the ore onto multi-ton dump trucks, which then carry the ore to the mill. (E.g., Tr. at 969; PTX 383 at G16786.) 11. For example, at WL’s South Carolina operations, the trucks must travel an average distance of ten to fifteen miles from the mining site to the mill. (Tr. at 969.) Grace’s average haul distance is twelve miles. (PTX 383 at G16786.) 12. The result of the processing operations at the mill is vermiculite concentrate, which is separated by grade according to the size of the flakes. (Stip-¶ 5.) 13. The United States grading system classifies vermiculite into various size ranges, including grades 3, 4, and 5, (Stip-¶ 6), grade 3 being coarser than the finer grades, 4 and 5. (PTX 11A-11G.) 14. Most applications for vermiculite require that the concentrate be heated in 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. (Stip.f 7.) 15. Vermiculite is fireproof, and is used in a variety of horticultural, agricultural, industrial, and construction applications. (Stip-¶ 8.) 16. Some of the applications for expanded vermiculite include the production of lightweight concrete, soil mixes, fertilizers, masonry block insulation, and spray-on fireproofing. (Stip.f 9.) 17. Vermiculite is mined in a limited number of specific locations throughout the world, including the United States, China, Brazil, Australia, and Russia, and certain countries in Africa. It is imported primarily from companies doing business in South Africa and China. (Stip.f 10.) 18. In the United States, commercially-viable reserves of vermiculite ore have been mined only in Virginia, South Carolina, and Montana. (Tr. at 169-71, 1395-96; PTX 117.) 19. The three largest participants in the world-wide vermiculite industry are the South Africa-based Palabora Mining Company (“Palabora”), Grace, and WL. (Stip.f 11.) 20. Palabora is the largest single producer of vermiculite in the world, and currently has twenty-five years’ worth of reserves (or, “mining rights”) in Africa. (Stip.f 12.) 21. Grace and WL are the second- and third-largest vermiculite producers in the world, respectively. (Stip.f 13.) 22. WL owns mining rights, conducts mining operations, and operates vermiculite processing plants in Virginia and South Carolina. (Stip.f 15.) 23. VVL’s South Carolina operation, Carolina Vermiculite (“CVC”), is a division of VVL; it is not a separate corporation. (Tr. at 888.) 24. CVC does not process any vermiculite mined in Virginia. (Stip.f 16.) 25. Grace currently conducts mining operations only in South Carolina. Grace previously mined in Montana (but ultimately closed those operations), and never mined in Virginia. (Stip.f 18.) 26. Grace sells and uses vermiculite internally, and also sells both vermiculite concentrates and expanded vermiculite to third parties. (Stip.f 21.) 27. Grace and WL primarily sell their vermiculite in North America, although Grace also exports some vermiculite outside of North America. (Tr. at 152-53, 1346-50, 1374; PTX 76 at G015524, G015598; PTX 383 at G16770, G16778-83.) 28. At least 2,000,000 tons of vermiculite reserves in South Carolina remain un-leased by any mining company. (Stip.f 20.) 29. North American vermiculite concentrate sales for 1991-1998 are shown in Table 1. (Stip.f 14.) 30. In the 1960s, 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. (Stip.f 23.) 31. Grace had a number of core businesses that were dependent upon vermiculite, and deemed it prudent to increase its vermiculite holdings on the East Coast. (DTX 138 at G003120.) 32. 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. Grace initially acquired the Louisa County reserves with the intent to mine them. Grace also purchased land that did not contain vermiculite reserves because of the land’s logistical benefit to Grace’s future mining operations. (StipJ 24.) 33. Two of those Louisa County property owners were Millard Fillmore Peers, Jr. (“M.F. Peers”), and his wife, Norma Peers (collectively, the “M.F. Peerses”). (Stip.fl 25.) The M.F. Peerses were plaintiffs in the previously-consolidated cases against Grace, but those cases were dismissed when Grace settled with the M.F. Peerses and with VVL. 34. M.F. Peers testified at trial. His testimony was credible, unrefuted, and subject to virtually no cross-examination. 35. Mr. Peers was born in the District in 1913, and has lived there for seventy-five years. His father was a career farmer, and purchased 1300-1400 acres in Louisa County in the 1920s. His father often used his land for commercial purposes, such as by selling gravel from the river bed to be used in concrete, and by leasing his property to be used as an airport landing strip and as a drag strip. (Tr. at 496-509.) 36. Mr. Peers and his brother, Alfred Dabney Peers (“A.D. Peers”), acquired land under their father’s will. Together they owned approximately 2000 acres in Louisa County. (Tr. at 510-11.) 37. As a farmer, M.F. Peers approved of vermiculite mining. His father often remarked that “he didn’t think [they] were going to make a living off of the top of the ground and he thought it would have to come out of the underground.” (Tr. at 523-24. See also Tr. at 526; PTX 42.) 38. Grace told M.F. Peers that Grace was depleting its reserves in South Carolina, that it did not have enough reserves to last another two years, and that it wished to buy, and then mine, M.F. Peers’s property. (Tr. at 536-37.) 39. On December 27, 1972, Grace purchased two parcels from M.F. Peers (the “M.F. Peers properties”). (Stip. ¶ 26; PTX 47, 48.) 40. The first parcel (“Parcel I”) contains 262.98 acres, and the second parcel (“Parcel II” or the “River Property”) contains 276.42 acres. (Stip.li 27.) 41. About half of Parcel I is located within the boundaries of the Landmark District. Approximately one-third of Parcel II is located within the Landmark District, that third being a peninsula-shaped tract of land comprising the southern portion of the parcel, the property line of which more or less follows the contours of the South Anna River. (PTX 3.) 42. Grace entered into an agreement with the M.F. Peerses pursuant to which Grace would pay “per ton” royalties to the M.F. Peerses, if Grace, in its sole discretion, decided to mine the M.F. Peers properties. (Stip. ¶ 28; PTX 47, 51.) 43. Notwithstanding the discretionary clause, Grace promised M.F. Peers that it was going to mine the properties within two years. (Tr. at 536-38.) 44. M.F. Peers sold his land to Grace with the expectation that he would receive royalties from the mining. The sale price was lower than it otherwise would have been, to take account of the royalties M.F. Peers expected to receive. (Tr. at 536-37.) 45. Grace knew of M.F. Peers’s expectations when it purchased his properties. (Tr. at 536-38; PTX 45.) 46. Grace never mined the properties or paid a per ton royalty (or any royalty) to the M.F. Peerses. (StipJ 29.) 47. Also in 1972, HGSI was incorporated to preserve the Green Springs area, and, essentially, to prevent what it viewed as developmental threats to the area. (Tr. at 1650-62; Stip. ¶ 54.) 48. Rae H. Ely, a Louisa County resident, at various times has served as officer, director, and attorney for HGSI, and currently is HGSPs President. (StipJ 57.) 49. From the time Grace began acquiring properties in Louisa County, Grace faced substantial opposition to its mining plans from HGSI, specifically from Ms. Ely, (StipJ 57), who began conducting intensive research into the vermiculite industry, frequently appeared in opposition to Grace at meetings of the Louisa County Board of Supervisors, studied the area, advised local residents about mining and preservation, and organized grass-roots efforts to oppose mining and development. {E.g., Stip. ¶ 58; (Ely dep. (Apr. 14, 1999) at 430); PTX 457, 458, 460; Tr. at 1689-91,1869-84.) 50. HGSI opposed Grace because many of the properties Grace acquired in Louisa County were located "within, or adjacent to, the Landmark District. (Tr. at 1659; Stip. ¶ 56; PTX 2, 3, 457.) 51. As noted supra, A.D. Peers and his wife, Elizabeth D. Peers (collectively, the “A.D. Peerses”), also owned land in Louisa County. (StipJ30.) Like M.F. Peers, A.D. Peers was born in Louisa County and lived there nearly all of his life. (Tr. at 498-99.) 52. Grace purchased two parcels from the A.D. Peerses on December 27, 1973: the 36.62 acre “Parcel A,” on which the A.D. Peerses resided, and the 228.99 acre “Parcel B” (the “A.D. Peers properties”). (Stip. ¶ 31; PTX 49.) 53. Parcel A is located entirely within the boundaries of the Landmark District, and more than half of Parcel B is located within the District. (PTX 3.) 54. An unrecorded agreement entered into on the same day of the property sale (the “1973 Agreement”) established a per ton royalty rate that Grace would pay the A.D. Peerses, in the event that Grace, in its sole discretion, decided to mine the property. (Stip. ¶ 32; PTX 50.) 55. The 1973 Agreement contained a royalties provision, whereby Grace would pay the A.D. Peerses one dollar per ton of vermiculite mined, or a rate no less than the rate Grace paid others in the Louisa County area, in the event that Grace decided to mine. (StipJ 33.) 56. Although Grace retained sole discretion to decide whether to mine, the 1973 Agreement contained detailed provisions about when royalty payments were to be made, what statements Grace was required to give the A.D. Peerses, including what quantity and type of ore was removed, and what procedure the A.D. Peerses could follow to inspect Grace’s records. (StipA 34.) 57. When the A.D. Peerses sold their property to Grace, they did so with the expectation that the property would be mined and that they would receive royalties. (E.g., PTX 45.) 58. Grace was aware of these expectations, (PTX 45), and believed that the A.D. Peers properties contained commercially-valuable vermiculite reserves. (StipJ 37.) 59. Under the 1973 Agreement, the A.D. Peerses also retained the right to occupy the premises until Grace notified the A.D. Peerses of its intent to resell or mine the property, at which time the A.D. Peerses could continue to occupy the premises until the date of closing of the resale, or for one year after Grace provided notice of intent to mine. (Stip.f 35.) 60. The 1973 Agreement also contained a provision stating that, for thirty days after Grace’s notice of intent to resell the property, the A.D. Peerses would have the option of buying back Parcel A. (Stip.f 36.) 61. Grace never mined the A.D. Peers properties or paid a per ton royalty to the A.D. Peerses for vermiculite actually mined. Grace paid the A.D. Peerses $50,000 in advance royalties, although it was not required to do so under the 1973 Agreement. (Stip. ¶ 38; PTX 52.) 62. “Advance royalties,” or “advanced mineral royalties,” were prepayments of royalties which would be applied against actual royalties owed, if and when mining began. (PTX 52, 301.) 63. J. Murray and Ruth Hill also owned property in Louisa County, known as “Brandy Farm.” (Stip.f 39.) 64. On December 27, 1973, Grace leased a 60.24 acre parcel from the Hills known as “Brandy A.” (Stip.f 40.) 65. The Hills lived on a 37-acre parcel. That parcel is known as “Brandy B.” (Stip.f 41.) 66. Both parcels of the Brandy property are located entirely within the boundaries of the Landmark District. (PTX 3.) 67. Grace entered into an agreement to pay royalties to the Hills if Grace decided, in its sole discretion, to mine Brandy A. (“Brandy Agreement”) (Stip. ¶ 42; cf PTX 55 at H0726.) 68. Under the Brandy Agreement, Grace had the duty of maintaining the buildings on Brandy B as long as the Hills lived there. (Stip.f 43.) 69. The Brandy Agreement provided in part that, once the Hills vacated Brandy B, “no person shall use or occupy any of the buildings ... on [Brandy B] without Grace’s prior written permission and upon such conditions as Grace may reasonably impose.” (Stip.f 44.) 70. On March 13, 1974, largely through HGSI’s efforts, the Landmark District was designated a national landmark. (Stip. ¶ 52; DTX 92 at 3.) 71. Ms. Ely collected preservation easements on nearly half the acreage in the District and offered most of them to the Secretary of the Interior, who subsequently assigned management of the properties to the National Park Service. (PTX 312 at 010445; DTX 92 at 3.) The National Park Service entered into a cooperative agreement with HGSI to manage those easements. (DTX 92 at 6.) 72. On May 17, 1976, Grace leased a 255.53 acre parcel from Elgin H. and Betty Craig Nininger, known as the “Nininger property.” (Stip.f 47.) 73. The Nininger property is located entirely within the boundaries of the Landmark District. (PTX 3.) 74. The Nininger lease term ran for thirty-five years, through May 17, 2011. (PTX 306.) The lease created no obligation upon Grace to mine the premises, leaving the decision to mine in Grace’s discretion. (Cf PTX 56 at H0361.) 75. The Nininger property contains vermiculite reserves estimated by Grace in 1992 to be approximately 700,000 tons. (Stip.f 97.) 76. The Nininger property is zoned for vermiculite mining. (Stip.f 98.) 77. Grace never mined the Brandy or Nininger properties. (Stip.f 48.) 78. In 1976, WL leased and began mining its first property in Louisa County, known as the “Purcell property.” (Stip. ¶¶ 49, 59; TV. at 112.) 79. The Purcell property contains 459 acres, of which WL leased approximately 120 acres, containing reserves of approximately 580,000 tons of vermiculite concentrates. (Stip.1150.) 80. The Purcell property is located entirely within the boundaries of the Landmark District. (PTX 3.) 81. The relative geographic positions of these properties are as follows. 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 M.F. Peers Parcel II. That parcel is a wooded area adjacent to the South Anna River. West of the southern portion of M.F. Peers Parcel II are the Brandy parcels. Consequently, M.F. Peers 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 the Brandy properties. West of A.D. Peers is the other M.F. Peers property, Parcel I. (Stip. ¶ 51; PTX 3; Tr. at 110-19.) 82. Overall, Grace purchased 1084 acres and leased 260 acres in Louisa County. (PTX 301.) The initial cost to Grace was $615,800. Grace also had to pay $56,000 in annual advanced mineral royalties under the Nininger and Brandy leases. (PTX 301.) 83. The South Carolina operations, now known as WL’s CYC division, were established in 1983. (PTX 307.) 84. The Hills ultimately notified Grace that its maintenance duties under the Brandy Agreement would be triggered on October 1,1984. (Stip-¶ 45.) 85. Reluctant to assume the added costs of those responsibilities, Grace agreed with Brandy Farm, Ltd. (to which the Brandy properties since had been conveyed) to modify the agreement, to permit Brandy Farm, Ltd. to lease the Brandy Farm in its entirety to third parties. (Stip-¶ 46.) 86. In 1986, Grace perceived itself as “dominating] the North American market,” producing 72% (249,200 of 343,800 tons) of vermiculite consumed in North America. (PTX 307 at G002406, G002410). Grace estimated that Palabora produced 13% (44,000 tons) of vermiculite consumed in North America, and that WL also produced 13% (12% (42,600 tons) at its Virginia division, and 1% (5,000 tons) at its South Carolina division (CVC)). (PTX 307 at G002406.) 87. Although in 1986 Grace believed that “[t]he ability of new competitors to enter the vermiculite market [was] severely hampered by limited access to commercial vermiculite deposits, capital requirements, the economies of scale developed by existing producers and, limited access to distribution,” (PTX 307 at G002440), Grace also recognized WL’s fledgling South Carolina division as “a potentially significant new competitor.” (PTX 307 at G002434.) 88. Grace initially purchased the properties in and around the District in the 1970s with the intent to mine them, but ultimately retained the properties for about twenty years without ever mining in Virginia. 89. The reason Grace retained the Louisa County reserves for twenty years without mining them, and yet continued to pay advanced mineral royalties, was to keep those reserves from its competitor, WL. Internal Grace memoranda confirm that this was Grace’s “strategy.” (PTX 321. See also PTX 312 at 010448 (“[Grace] has continued to pay advanced mineral royalties to maintain mining rights, although at this time, it is primarily a defensive measure serving to keep Virginia Vermiculite from securing these reserves.”); DTX 138 (stating that the “one benefit” gained from retaining the properties “is that Virginia Vermiculite is kept from acquiring these reserves”).) 90. In late 1990, Grace closed its operations in Montana, as well as several of its exfoliating plants. (DTX 95 at 2.) 91. In December 1990, Ned Gumble, the manager of WL’s Louisa County plant, informed Gregory E. Poling, then the general manager of Grace’s Specialty Vermiculite Unit in Grace’s Construction Products Division, that WL was interested in acquiring Grace’s Virginia reserves. (Stip. ¶ 60; DTX 138.) WL had mined the Purcell property extensively, and needed an additional source of supply to continue its operations in Virginia. (PTX 68, 78; DTX 138.) 92. Mr. Gumble’s proposal gave Grace the opportunity to reevaluate its position in Virginia, as well as the costs and benefits of retaining the Louisa County properties without mining them. 93. Grace assessed several problems with its strategy of holding onto reserves to keep them from WL. (DTX 138; PTX 321.) 94. One of the problems was that retaining the properties without mining them carried costs, such as advanced royalty payments, property taxes, and other expenses. (PTX 321; DTX 138.) As of December 1990, Grace had paid over $1 million in advanced royalties, and estimated it would have to pay at least another $1 million in advanced royalties over the next twenty years. (PTX 301.) 95. Another problem with this strategy was that simply holding onto the properties without mining them did not bring any income to Grace. In the early 1990s, Grace estimated that it would not be profitable to expend the up-front capital required to build a mill and to begin mining operations in Virginia, because the cost would exceed the cash flow from such operations. (PTX 318, 321, 323.) 96. Another problem was adverse publicity, due to HGSI’s opposition to mining. (PTX 321.) 97. In addition, the original reason Grace acquired the reserves — to support a number of core businesses that were dependent upon vermiculite — no longer applied. Grace’s core businesses no longer relied on vermiculite, and Grace did not think it ever would mine in Virginia. (DTX 138; PTX 321.) 98. Given all of these considerations, it became clear to Grace that the only benefit of retaining the reserves was to keep WL from acquiring them. (DTX 138; PTX 321.) 99. On February 14, 1991, Mr. Poling wrote to his superiors, evaluating these various considerations. (DTX 138.) 100. Mr. Poling was aware at this time that WL was running out of reserves in Louisa County. He viewed the strategy of keeping Grace’s reserves from WL as benefitting Grace because WL “could be forced to cease operations” in Virginia if WL did not obtain additional Virginia reserves. (DTX 138 at G003119.) 101. However, Mr. Poling did not think that keeping the reserves from VVL would help Grace create a monopoly in the North American vermiculite industry, because he saw vermiculite as remaining “readily available to the marketplace from Virginia’s sister company Carolina Vermiculite as well as from Palabora and increasingly from ‘new sources such as China, Brazil, Dillon [Montana], and others.” (DTX 138 at G003120-21.) 102. Because Grace had not yet decided how, or whether, to dispose of its Louisa County properties, Mr. Poling advised that Grace further explore Mr. Gumble’s proposal. (DTX 138.) 103. Grace and WL had three meetings to discuss WL’s possible acquisition of Grace’s Virginia reserves. 104. The first meeting between Grace and WL took place on April 25, 1991, at WL’s Purcell property. (Tr. at 307.) Present for VVL were Mr. Gumble, Robert L. Sansom, Ph.D. (“Dr. Sansom”), WL’s general partner, and Dr. Sansom’s brother, John C. Sansom, who managed WL’s South Carolina operations. Present for Grace were Mr. Poling and Grace’s Manager of Strategic Planning, Michelle Stecyk. (Tr. at 307; PTX 76 at G015571.) 105. At the first meeting, Grace and WL discussed four options: (1) Grace selling its Louisa County reserves to WL; (2) Grace leasing or licensing its Louisa County reserves to WL; (3) combining the vermieulite businesses of both companies into a separate entity; or (4) “doing nothing,” which meant that Grace would continue to hold its Louisa County reserves, and WL would continue to mine its existing reserves. (DTX 2, 134; PTX 70.) 106. Dr. Sansom offered to buy all of Grace’s Louisa County reserves for $1.5 million. When the Grace representatives asked if his offer took account of the real estate value of the land, Dr. Sansom acknowledged that it did not, and changed his offer to $1.75 million for the land and the reserves. 107. Grace said it would take the offer under advisement and would schedule a follow-up meeting in June. (DTX 134; PTX 70.) At that time, Grace was assessing its options, but had not yet decided what to do with its properties. 108. In May 1991, before WL and Grace had their second meeting, Ms. Ely of HGSI went to a Grace shareholder meeting in South Carolina. (Tr. at 1695-99; PTX 470.) At the meeting, Ms. Ely spoke with Grace’s chairman, J. Peter Grace, and asked him to consider donating Grace’s Louisa County reserves to HGSI. (Tr. at 1695.) Mr. Grace referred her to Grace’s Executive Vice President, Donald Kohnken. (Tr. at 1695.) 109. Mr. Kohnken apparently did not know Ms. Ely and was not aware of Grace’s activities in Louisa County. (Tr. at 1695, 1699.) He told Ms. Ely that Grace would contact her after it had considered the matter more fully. (Tr. at 1699.) 110. Mr. Kohnken subsequently asked Mario Favorito, Grace’s in-house counsel, to advise him on the matter. (PTX 470.) 111. Mr. Favorito responded by an internal memorandum dated May 24, 1991. It is clear from the memorandum that Mr. Favorito had not thought about the mining situation in Louisa County for some time. He opined, based on his experience with Ms. Ely in the 1970s, that Ms. Ely still wanted Grace not to mine its reserves and, instead, wanted the company to donate its land for preservation and tax purposes. He made tentative recommendations, such as “politely declining] any invitation to place preservation easements on the Green Springs property at this time.” Mr. Fa-vorito also attached a memorandum from Mr. Poling that indicated WL was interested in acquiring the right to mine Grace’s reserves. (PTX 471.) 112. It appears that it was by Mr. Favorite’s memorandum that Grace’s principal decision-makers — who included Mr. Grace; J.P. Bolduc, Grace’s President; Robert C. Walsh, a senior Grace officer; and Mr. Kohnken — first were made aware that WL and HGSI were seeking simultaneously to obtain Grace’s Louisa County reserves. 113. In June 1991, Mr. Poling drafted an internal memorandum assessing the costs and benefits of the four options he discussed with WL at the first meeting. (PTX 303.) 114. Mr. Poling viewed the first option — selling to WL — as having the benefit of eliminating Grace’s carrying costs and generating immediate cash for Grace. Mr. Poling estimated that if the reserves and properties were sold for $2.2 to 3 million, Grace’s after-tax income would be $1 to $1.4 million. Mr. Poling saw the obvious disadvantage of this option: It would “provide[ ] [Grace’s] competitor with [a] reserve base.” (PTX 303 at 010427.) 115. Mr. Poling viewed the second option — leasing to WL — as having the advantages of providing Grace with an annual income stream and allowing it to retain ownership over the reserves, but the risk that Grace would assume liability for WL’s mining activities. (PTX 303 at 010427.) 116. Mr. Poling viewed the third option — combining the two companies’ vermiculite businesses — as having the advantage of maximizing Grace’s vermiculite assets, but the disadvantages of being complicated, having a low likelihood of success, and carrying antitrust risks. (PTX 303 at 010427.) 117. Mr. Poling viewed the fourth option — “doing nothing” — as having the advantage of “effectively removing these reserves from the system,” (DTX 138 at G003121), thereby “keeping] Virginia Vermiculite from gaining needed reserves,” (PTX 303 at 010427), but the disadvantage of not maximizing the value of the property, since Grace most likely would not mine it. (PTX 303 at 010427.) To assess the viability of this option, Mr. Poling estimated that Grace would gain up to $1.5 million in business, over twenty years, if WL ran out of reserves in Louisa County by 1995. (PTX 303 at G010432.) 118. However, Mr. Poling did not at this time think that not selling or leasing to WL would limit WL’s access to reserves in the short term, because VVL had access to ample reserves in South Carolina. Mr. Poling viewed WL as “under capacity” in South Carolina. (DTX 135; Poling Dep. (Nov. 20, 1997) at 373-78.) 119. Mr. Poling recommended that Grace pursue the first option, selling to WL. He estimated the value of Grace’s reserves to be $2 to 3 million. (PTX 303 at 01427, 01429.) 120. Mr. Poling’s memorandum did not address what had become, since the first meeting, a fifth option: donating the properties to HGSI. 121. The second meeting between Grace and WL took place at Grace’s headquarters in Cambridge, Massachusetts, on July 8, 1991. Present for WL were Dr. Sansom and Mr. Gumble. Present for Grace were Messrs. Poling and Favorito, and Ms. Stecyk. (Tr. at 613.) The parties again discussed the four options raised at the first meeting and addressed by Mr. Poling’s memorandum. (Tr. at 613-31.) Grace indicated it was not interested in leasing reserves to WL or in creating a joint venture with WL, leaving the only remaining options as “sell to WL” or “do nothing.” (PTX 305; Tr. at 616, 622.) Mr. Poling also mentioned to WL that Ms. Ely had approached Grace with another option, namely, that Grace donate its properties to HGSI. (PTX 305; Tr. at 615.) 122. As the second meeting was drawing to a close, the Grace representatives handed Dr. Sansom and Mr. Gumble a létter detailing Grace’s counter-offer. (DTX 3; Tr. at 628.) Essentially the letter said that Grace would consider selling WL the mining rights to Grace’s Louisa County properties for $2.1 million, and the land itself for its appraised value. (DTX 3.) 123. At this time, Grace calculated the total amount of acreage it owned to be 1076 acres, (DTX 3), and estimated the market value of the land to be approximately $1000 per acre. (PTX 312 at 010439.) Therefore, the total market value of Grace’s Louisa County real estate, independent of mining rights, was approximately $1 million. (PTX 77 at G15818.) 124. The parties considered Grace’s total counter-offer to be $3 to 3.5 million for the land and the reserves, (Tr. at 638; DTX 137; PTX 71), as compared to Dr. Sansom’s original offer of $1.75 million. 125. After the second meeting, WL and Grace entered into a confidentiality agreement (“Confidentiality Agreement”) so that WL could view Grace’s mining leases and other relevant documents, to make an informed counter-offer. (DTX 4, PTX 72.) 126. The fact that Grace allowed WL to inspect Grace’s confidential documents indicates that Grace was pursuing the negotiations in good faith. 127. Dr. Sansom attempted to calculate the value of Grace’s holdings — and an appropriate response to Grace’s counter-offer — based on the information he received pursuant to the Confidentiality Agreement. (Tr. at 632-38.) 128. The third and final meeting between Grace and WL took place in Cambridge, on September 17, 1991. Present for WL was Dr. Sansom. Again present for Grace were Messrs. Poling and Fa-vorito, and Ms. Stecyk. (Tr. at 631, 639, 641.) 129. Having seen Grace’s leases and, in light of his revised calculations, Dr. San-som again offered Grace a total of $1.75 million to purchase Grace’s Virginia mining rights and land. (Tr. at 641-42.) Although WL was willing to pay up to $2.2 million, Dr. Sansom understandably did not communicate this amount to Grace. (Tr. at 643.) 130. The Grace representatives were non-responsive. Based on their demeanor at the meeting, Dr. Sansom suspected that Grace was negotiating with WL simply to set a value on the properties for the purpose of determining the deductibility of a donation to HGSI, and that Grace at this time was not genuinely interested in reaching a negotiated agreement with WL. (Tr. at 639, 641.) 131. While the court does not doubt the sincerity of Dr. Sansom’s belief, objective evidence indicates that selling to WL remained a possible option for Grace through July 1992, and that Grace had not yet decided whether to donate its properties to HGSI. (E.g., PTX 312.) Moreover, no evidence was presented that Ms. Ely or HGSI had any influence or effect on what, during this period of time, appears to have been' an entirely internal assessment by Grace of its various options. 132. The Grace representatives’ non-responsiveness likely was due, instead, to their perception that Dr. Sansom’s newest offer of $1.75 million was even less than his original offer of $1.75 million, because Dr. Sansom added conditions to his new offer that made it less attractive than the original offer. (DTX 133, 137; PTX 14 at 14379, 312 at 010439, 323; Bettacchi Dep. (Dec. 3, 1997) at 116.) For example, Dr. Sansom indicated that he wanted the purchase price to be reduced by $350,000 — to $1.4 million — if WL was unable to obtain a conditional use permit to mine the properties within twelve months. (DTX 137; Tr. at 638-39.) 133. Grace interpreted Dr. Sansom’s newest offer to indicate that WL was unable or unwilling to increase its offer above $1.75 million. Grace accordingly decided further negotiations would not be productive. (DTX 7,137.) 134. Dr. Sansom’s firm negotiating position was the principal cause of the failed negotiations between Grace and WL. 135. The negotiations with Grace having proved unsuccessful, WL decided to attempt to acquire reserves from other sources. 136. In 1991, of the vermiculite concentrate sold in North America, Grace sold approximately 47% (86,157 tons), WL sold 30% (17% (30,423 tons) from its Virginia division, and 13% (23,432 tons) from its South Carolina division), and foreign imports accounted for approximately 23% (40,783 tons). (Table 1.) 137. As of January 1992, Grace had not yet decided how to dispose of its Louisa County properties. A report dated January 13, 1992, reevaluated Grace’s estimates of the Nininger reserves, and attempted to verify the accuracy of Grace’s twenty-year-old reserve data. (PTX 306.) 138. On April 25, 1992, WL leased Brandy B from Brandy, Ltd. (Stip-¶ 63.) 139. WL could not begin mining Brandy B until it acquired a permit to do so from the Louisa County Board of Supervisors. (Stip-¶ 64.) 140. In May 1992, Ms. Ely attended Grace’s annual shareholder meeting in Florida. (StipV 65.) 141. No evidence was presented that Ms. Ely communicated with Grace between May 1991 and May 1992, and Ms. Ely denied having done so. (Tr. at 1699.) 142. At the shareholders meeting, Ms. Ely met with Mr. Kohnken, among others, and attempted to persuade Grace to abandon any plans to mine in Louisa County. (StipV 66.) 143. Mr. Kohnken charged Mr. Walsh, a senior Grace officer, with the responsibility of developing a response to Ms. Ely. (StipV 67.) 144. This appears to have been Ms. Ely’s first indication that Grace, after two decades, finally may have been interested in pursuing a donation. 145. Ms. Ely had developed an “intense interest” in the vermiculite industry since the 1970s. (Ely dep. (Apr. 14, 1999) at 430.) She became extremely knowledgeable about the geography and history of the Louisa County area; the vermiculite industry; how to lobby politicians in the local, state, and federal governments; which mining companies owned what properties; which properties did or did not have conservation easements; when the companies were applying for rezoning permits; and when certain properties were, or were about to be, transferred to a mining company. (E.g., PTX 120 at H0046, 441; Tr. at 1646-95; 1743; 1799-1804.) 146. Ms. Ely’s intense interest in and knowledge of the vermiculite industry and Louisa County affairs raise the inference that, at least by May 1992, Ms. Ely realized WL only controlled the Purcell reserves and had leased the Brandy B property to replenish its depleting reserves. 147. The conjunction of WL’s depleting reserve situation with Grace’s new-found interest in donating its properties presented, for the first time, the real possibility that Grace would leave Virginia and that WL could run out of reserves in Virginia. 148. Because of these unusual circumstances, a well-timed donation could fulfill what Ms. Ely testified had been her goal “since October ... 1972,” namely, the elimination of all vermiculite mining in Virginia. (Tr. at 1897.) 149. To take advantage of this opportunity, Ms. Ely began to take control of the HGSI organization. 150. Ms. Ely called an HGSI board meeting on June 11, 1992. She reported that WL was planning to expand its operations, and that HGSI’s goal should be “to get rid of all vermiculite mining.” Ms. Ely also said she was ready to assume the presidency of HGSI. (PTX 94.) 151. Except in one instance, Ms. Ely was the only HGSI member to communicate with Grace. (Tr. at 1571-74.) 152. Some of the members began to express dissent that the organization was being dominated by Ms. Ely, was dividing into factions, and was operating in too much secrecy. (PTX 96.) 153. On June 26, 1992, Ms. Ely was elected President of HGSI, with Roberta W. Patton as Vice-President. 154. In the fall of 1992, over a dozen HGSI members wrote a letter to Ms. Ely, objecting that she operated the organization in “an increasingly undemocratic” manner. (PTX 121.) Ultimately, Ms. Ely effectuated the dissolution of HGSI’s membership, and the members were limited to HGSI’s five-member board of directors. The board, which Ms. Ely headed, was to be “self-perpetuating.” (PTX 107.) 155. As of mid-1992, Grace still had not decided how to dispose of its property. (PTX 312; DTX133.) 156. On July 29, 1992, Mr. Poling prepared charts summarizing the options Grace was considering at that time. Those options included: (1) selling the properties for a non-mining use (thus maintaining the mineral rights) to potential buyers, such as private parties, Ms. Ely or HGSI, the National Park Service, or “Shenandoah Crossing,” a time share development abutting the Grace properties; (2) donating the land to HGSI, thus receiving a charitable donation tax treatment; and (3) selling or leasing the reserves to WL. (PTX 312 at 010439, 010450.) 157. Grace viewed the first two options as more viable than the third, as Mr. Poling’s charts qualified the third option by the statement, “Discussions were held with Virginia Vermiculite in the summer of 1991 and terminated in September when they added conditions to their initial $1.75 million offer, effectively reducing the deal to an unacceptable level.” (PTX 138 at 010439. See also id. at 010450 (listing WL as a potential buyer, but noting that “[previous negotiations terminated September 1991”).) 158. Grace was aware that WL was running out of reserves, (PTX 312 at 010439), and “expected [WL] to exit the market due to a shortage of reserves, [although] ongoing efforts to find reserves may extend [its] capability for several years.” (PTX 76 at G015522.) 159. However, Grace also considered the vermiculite industry to be in an “overcapacity situation,” and was concerned that “potential new suppliers ... will only ... continue the downward price pressure on VOX,” Grace’s vermiculite concentrate product. (PTX 76 at G015518.) 160. As of July 1992, Grace viewed itself as having a “strong yet declining share of the vermiculite concentrate market,” (PTX 76 at G015512), and it perceived Palabora as being “the largest and most profitable vermiculite producer,” that “dominat[ed] the industry” with its “ ‘benchmark’ product quality,” “full range of concentrate sizes,” “full product line,” “excellent yields,” and “high purity.” (PTX 76 at G015524-25.) Although Pala-bora had nearly twice Grace’s costs, due to transatlantic shipping costs, Grace estimated that Palabora’s gross profit was over twelve times greater than Grace’s gross profit. (PTX 76 at G015523.) 161. In his July 29, 1992 charts, Mr. Poling recommended that Grace sell the real estate of its owned properties, but retain the mining rights, in order to “re-ducen capital,” to “provide!] income/cash flow from the sale,” and to “maintain!] [Grace’s] defensive competitive posture.” As for the leased properties, Mr. Poling recommended that Grace “[c]ontinue to pay minimum royalties for two (2) years ... to allow time to assess Virginia Vermiculite’s ability to continue to operate.” (DTX 133 at G003189; PTX 312 at 0104340 (emphasis added).) 162. Mr. Poling’s July 1992 recommendation differed from his June 1991 recommendation to sell to WL), in that he now was focused more definitely on maintaining a defensive posture with respect to Grace’s reserve base. Further, he now perceived WL’s ability to operate as being relevant to Grace’s ability to maintain that defensive posture. 163. In August 1992, Mr. Walsh inquired of Mr. Poling how much Grace’s vermiculite business would benefit from WL closing in Virginia due to a lack of reserves. Consistent with his June 1991 memorandum, Mr. Poling responded that Grace’s business would benefit by a net present value of $1.5 million. Mr. Walsh also asked how much WL’s vermiculite business would benefit if WL obtained Grace’s Virginia reserves. Mr. Poling responded that WL likewise would benefit by $1.5 million. (PTX 313 at G003239; Walsh Dep. (Dec. 1, 1997) at 110-13; Walsh Dep. (Dec. 2,1997) at 47-48.) 164. As of August 1992, Ms. Ely knew that WL was applying for a permit to mine the Brandy B property, and was concerned that VVL would expand its operations across Route 22. (PTX 120.) 165. Ms. Ely previously had told Mr. Gumble that WL could precipitate ‘World War III” if it crossed Route 22. Other landowners had described Route 22 as “the Maginot line.” (Tr. 282.) 166. Mr. Walsh visited Louisa County on September 1 and 2, 1992. (PTX 320.) While there, he met with Ms. Ely and Ms. Patton of HGSI. He also met with Tyson Van Auken of the Virginia Outdoors Foundation, another local preservationist group, to discuss the practicalities of including conservation easements and restrictive covenants with a land donation. (PTX 320; Tr. at 1703-08.) Mr. Walsh and Ms. Ely had continued discussions thereafter. (PTX 320.) 167. At the September 1992 meeting, Ms. Ely raised the subject of WL’s pending application to mine Brandy B with Mr. Walsh. (Tr. at 1705.) 168. Mr. Van Auken testified that he did not recall discussing WL at his meeting with Mr. Walsh; therefore, Mr. Van Auken either forgot the discussion, or Mr. Walsh and Ms. Ely discussed WL outside of Mr. Van Auken’s presence. 169. It was at this point — in September 1992 — that Grace and HGSI decided that their common interest would be served by WL going out of business in Virginia, and that this goal could be accomplished by Grace donating its properties to HGSI, with restrictive covenants that would prohibit any future mining. 170. Grace viewed donating to HGSI as a solution to the problems associated with its strategy of retaining the reserves to keep them from WL. By donating to an anti-mining organization that would agree to far-reaching restrictions on mining, Grace could eliminate its carrying costs and related expenses, and yet continue to prevent WL from acquiring those reserves. 171. In notes dated September 1, 1992, Mr. Walsh described Grace’s goals as follows: 1. Eliminate future outlays of $1.1 million 2. Maximize the benefits relating to past outlays 3. Keep Virginia Vermiculite from improving its competitive position 4. Cooperate with goals of Green Springs District. (PTX 317.) 172. Mr. Walsh also wanted to find out “where ... things stand on Virginia Vermiculite plans and Green Springs[’s] attempts to stop Virginia.” (PTX 317.) As these notes were written on September 1, he presumably was going to find out where those plans stood during his meeting with Ms. Ely the following day. 173. Ms. Ely denied that Mr. Walsh indicated a donation would serve to injure WL. (Tr. at 1706.) 174. On September 9, 1992, Lee P. Hackett, who worked for an appraisal company, had a telephone conversation with Margaret Sheehan, one of Grace’s tax attorneys with whom Mr. Walsh had been working, (PTX 321), in which Ms. Sheehan communicated that “Grace is considering a charitable donation, as long as there is some protective clause against allowing any Grace competitor, at any future time, to conduct mining operations.” (PTX 450.) 175. Meanwhile, as noted supra, WL was planning to apply for a permit to mine the Brandy B property. WL realized it would have to transport any ore mined at Brandy B to be processed at the Purcell property. VVL was concerned that if it had to use trucks to transport the ore over the public road (Route 22), the disturbance might provide the Louisa County Board of Supervisors with a basis for denying its application. (PTX 14.) 176. On September 10, 1992, Mr. Gum-ble telephoned Mr. Poling. Perhaps unwisely, Mr. Gumble informed Mr. Poling of the above concerns and told him that WL’s permit more likely would be granted if it could transport the ore “off road.” He therefore asked Mr. Poling whether Grace would consider building a road and bridge (across the South Anna River) on Grace’s M.F. Peers River Property, and whether Grace would sell WL an easement over the same. (PTX 14; Tr. at 356-59.) 177. Mr. Gumble’s notes of his conversation with Mr. Poling indicate that Mr. Poling did not think Grace would agree to such an easement, and wondered why Grace would help its competitor. (PTX 14; Tr. at 195-96.) 178. In addition, Grace’s plans with HGSI already were underway, so Grace no longer had any interest in selling its properties or any easements to WL. 179. On September 17, 1992, Mr. Walsh wrote an internal memorandum to Mr. Kohnken, in which Mr. Walsh summarized his findings concerning Grace’s properties in Louisa County. The memorandum provides considerable insight into Grace’s intent and into its cooperation with HGSI in the months preceding the donations. In substantial part, the memorandum reads: It is clear to me that it is extremely unlikely Grace will ever mine vermiculite in Virginia as the vermiculite business is less important strategically today, we have adequate reserves in South Carolina, and the economics of investing capital to develop a mining and milling operation are poor. Yet to continue our strategy of keeping the reserves out of the hands of an adjacent competitor (desirable) involves future annual lease payments and taxes that cumulatively amount to about $1.1 million pre-tax over the next twenty years. Rae Ely’s pitch for twenty-years [sic] has been for Grace to donate its owned land and leased vermiculite rights to Green Springs Historical Inc. [sic] and take a charitable donation .... With all of this in mind, I met with Rae Ely and other interested parties In general, the results of that meeting are that the people I met with are quite interested in ... ... [a]ccept[ing] ownership of our land .... [and] ... [a]ssum[ing] the obligations under our mineral lease agreements, including the future annual payments (thereby keeping the reserves off the market) .... Since my visit to Green Springs on September 1 and 2, I have been ... continuing conversations with Rae Ely. While this assessment of the situation has been going on, our competitor, Virginia Vermiculite, who mines on adjacent properties, has filed for new mining permits to open up some new reserves under lease to them. Rae Ely and friends are determined to take on Virginia Vermiculite in what she labels as “the war of all holy wars”. Their war with Virginia Vermiculite and its owner, Robert Samson [sic], has been going on for years. In the past few days, she informed me that her group has discovered the unreported use of some chemicals, the presence of some oil spills, and the washing out of drums on Virginia Vermiculite’s property. She intends to bring the State down on them.... (In past conversations, she has talked about bringing the issue of asbestos contamination of vermiculite in Virginia into this arsenal of arguments. I think I have convinced her that is not a good idea.) Since the hearing on the mining permit is scheduled for October 8, Ely and company plan to begin their “war” on Friday, September 25. She believes, as I do, that Grace will benefit irom an announcement a couple days ahead of their launching their fight and could come out less positively by announcing after.... I believe we should get the longstanding issue behind us, avoid the future expenses, and get the favorable P.R. value. On the other hand, there are property owners who have vermiculite deposits who consider Ely to be a meddling devil. Also, Virginia Vermiculite may argue that Grace and [HGSI] have cooperated to their detriment.... So, there is also the possibility of some adverse reaction.... ... Because of the new development at Virginia Vermiculite, I propose we proceed and make our announcement next week .... (PTX 321.) 180. The next day, on September 18, 1992, Ms. Ely faxed Mr. Walsh a list of chemicals purportedly used in WL’s mining operations. (PTX 322, 349; Tr. at 2047-53.) 181. On cross-examination, Ms. Ely attempted to deny that she had done so, until it was pointed out that the facsimile date and time stamp on the top of her personalized cover sheet matched the date and time stamp on the top of the attached list of chemicals, which proves that HGSI sent Mr. Walsh the list of chemicals on the date indicated. (Tr. at 2047-51.) 182. Ms. Ely faxed Mr. Walsh the list of chemicals to identify possible ways in which WL might have violated environmental laws. (PTX 322, 349.) Ms. Patton of HGSI acknowledged on cross-examination that she “c[ould]n’t think of any legitimate reason [HGSI] would be talking to Grace about environmental problems at Virginia Vermieulite’s facility.” (Tr. at 1613.) 183. During at least one of Mr. Walsh’s conversations with Ms. Ely during this period, they discussed “coordinating]” a “meticulous time line.” (PTX 349; Walsh Dep. (Dec. 2,1997) at 39-41.) 184. The timing of the donations was important to both Grace and HGSI, because both knew that WL was running out of reserves, and hoped that the donations would prevent WL from acquiring the reserves it needed to stay in business in Virginia. 185. Grace prepared a list of Louisa County landowners to contact prior to the making of the donations. The list included the M.F. Peerses, the A.D. Peerses, the Niningers, and Ann Hill Granger, the owner of the Brandy properties and daughter of the Hills. Grace noted that the Peerses were “entitled to royalties if [the property is] mined,” and that the Niningers and Hills received annual advanced royalties. Grace recognized that because these individuals expected them properties to be mined, donating the properties to an anti-mining organization carried the potential disadvantage of “legal action.” (PTX 351.) 186. In mid- to late September 1992, Mr. Poling called M.F. Peers to arrange for a tour of the M.F. Peers property, and M.F. Peers provided a tour to Mr. Poling and Ms. Stecyk. When M.F. Peers asked why they wanted a tour, Mr. Poling said that Grace was evaluating what to do with the property. M.F. Peers told him Grace either should mine it or sell it to someone who would mine it. (Tr. at 538-39.) 187. Mr. Poling told M.F. Peers that he thought the property might be mined, (Tr. at 538), and did not mention that Grace was planning to donate the property to HGSI. (Tr. at 539.) 188. Before the donations were announced, Grace knew that donating the properties to HGSI would foreclose the possibility that the properties would be mined, and that, therefore,'the donations would harm property owners such as the Peerses, to whom Grace had promised “per ton” mining royalties. 189. Ms. Ely also knew that the donations would harm property owners such as the Peerses. Grace sent Ms. Ely copies of its lease and mining agreements with the various Louisa County landowners on September 23, 1992. (PTX 324.) Ms. Ely admitted on cross-examination that she “knew that [the M.F. Peerses] had a financial interest in having their former property mined,” (Tr. at 2077); that imposing restrictive covenants not to mine was more injurious to the Peerses than if Grace simply retained the properties without mining them, as the restrictive covenants prevented the properties from being mined, (Tr. at 2078); and that she was sure the Peerses were “very unhappy” when they learned about the donations to HGSI. (Tr. at 2073.) 190. On September 28, 1992, Ms. Ely wrote to Mr. Walsh. In her letter, she emphasized that “[t]he long-term successful accomplishment of our joint and several goals is most probably met by maintaining the Grace/HGSI cooperative undertaking.” She stated that “[a]ny control put in the hands of third parties with unknown agendas will at best dilute and at worst defeat the original objectives,” and recommended that any third parties be informed “that a full agreement with HGSI was reached 7 to 10 days ago.” (PTX 326.) 191. The only “joint” goal that Grace and HGSI shared was WL going out of business in Virginia. 192. At trial, Ms. Ely attempted to explain that she wrote the letter because she apparently received a call from someone in the office of the Governor of Virginia who said that the Governor called Mr. Bolduc to request that Grace not make the donation to HGSI. Ms. Ely testified that this was “one of the most surprising and ... upsetting phone calls ... [she had] ever received,” but, incredibly, that she could not remember the name of the person who called her. (Tr. at 1744.) 193. At 8:00 a.m. on September 29, 1992, Mr. Poling unexpectedly called M.F. Peers, and said he was coming to the M.F. Peerses’ residence. (Tr. at 542-43.) 194. Mr. Poling arrived, showed the M.F. Peerses a press release, and informed them that Grace was announcing a donation of all its Louisa County land to HGSI. 195. M.F. Peers and his wife were upset that the properties were being donated to HGSI, because they never had been paid royalties for their vermiculite. (Tr. at 543.) 196. Mrs. Peers “jumped up and down and said that was the lowest thing she had ever heard of.” (Tr. at 543.) 197. Later that day, Grace issued a press release announcing it was donating all of its Louisa County interests to HGSI. (Stip. ¶ 68; PTX 327.) 198. In 1992, before its donations to HGSI, Grace controlled (either by lease or ownership) reserves in Louisa County that it estimated to be equal to 1,520,000 tons of vermiculite concentrates. (StipJ 19.) 199. In early October 1992, WL made a presentation at a Louisa County Planning Commission meeting concerning WL’s application for a permit to mine the Brandy B property. At the meeting, Mr. Gumble and Dr. Sansom made clear that WL needed to mine the Brandy property to stay in business in Virginia, due to the depletion of the Purcell reserves. Ms. Ely was present at the meeting, and therefore, was aware of WL’s depleting reserve situation, at the latest, by this date. (PTX 68, 78; Cf. Tr. at 2010.) 200. Pursuant to a provision in the original 1973 Agreement between the A.D. Peerses and Grace, the A.D. Peerses had the option of buying back the 37-acre Parcel A in the event that Grace “resold” the property. (Stip-¶ 88.) 201. On October 16, 1992, the A.D. Peerses wrote to Grace, stating that because Grace was not going to mine the property, they wished to exercise their right to buy back Parcel A. (PTX 330.) 202. The A.D. Peerses sought to buy back Parcel A to sell or lease it to a third party that would mine it, so that they could receive mining royalties. 203. On October 27, 1992, Grace responded, assuring the A.D. Peerses that it had not yet finalized plans to donate their properties to HGSI. Grace informed them that they therefore could not yet buy back Parcel A. (PTX 329, 332.) 204. Contrary to its representations to the A.D. Peerses, Grace already had decided by this time to donate the A.D. Peers properties to HGSI, and to include restrictive covenants not to mine in the deeds of gift; Grace’s press release spoke of Grace’s intent to donate all of its interests in Louisa County, and the original drafts of the 1992 donation deeds included the A.D. Peers properties among the donations subject to the written restrictive covenants. (Stip-¶ 93.) 205. It was only after receiving the A.D. Peerses’ October 27 letter that Grace was reminded of the buy-back provision, and made aware that donating the A.D. Peers properties to HGSI could result in WL obtaining Parcel A. 206. On November 10, 1992, Mr. Walsh wrote an internal memorandum to Mr. Poling, suggesting that Grace and HGSI enter into an understanding to withhold the A.D. Peers donation, as a delay might prevent WL from replenishing its depleting reserves. (PTX 331.) 207. Grace was concerned that if it donated the A.D. Peers property to HGSI, the donation might constitute a “sale,” giving A.D. Peers the option of buying back Parcel A. Grace and HGSI, as evidenced by HGSI’s ultimate agreement to delay the donation, were aware that WL was depleting its reserves; that Parcel A might contain up to 250,000 tons of vermiculite; that A.D. Peers likely would sell Parcel A to WL; and that if WL obtained Parcel A it could continue mining in Virginia for an additional five to six years. (PTX 331, 402.) 208. Therefore, Grace and HGSI entered into an understanding to delay the A.D. Peers donation, pending the outcome of the Brandy permitting process. Grace and HGSI thought that if the Brandy B permit restricted the amount of reserves that could be mined, a multi-year delay of the A.D. Peers donation could assure that WL not mine Parcel A, and thus, could lead to WL going out of business in Virginia. On the other hand, Grace and HGSI thought that if the Brandy B permit did not restrict the amount of reserves that could be mined, a multi-year delay would not be helpful because VVL would remain in business in Virginia even if it did not obtain Parcel A. (PTX 331.) 209. Ms. Ely denied that she intended the delay to injure VVL. (Tr. at 1765.) 210. On November 13, 1992, A.D. Peers wrote a letter to Grace, expressing relief at Grace’s assurances that it had not yet had definitive discussions with HGSI about the donations. Grace decided not to respond to A.D. Peers until it determined whether VVL’s Brandy B permit carried enough restrictions to make a delay of the A.D. Peers donation worthwhile. (PTX 332.) 211. On November 18, 1992, Ms. Ely wrote to Mr. Favorito saying it would be in “everyone’s intere