Full opinion text
MEMORANDUM LEGG, District Judge. This is an antitrust suit. In September, 1995, the State of Maryland awarded to the plaintiff, Merck-Medco Managed Care, Inc. (“Medco”), a contract to manage the prescription drug benefits program for State employees and retirees (the “Maryland Plan” or the “Plan”). Under the terms of the award, Medco was required to assemble an extensive statewide network of pharmacies agreeing to fill prescriptions at a steeply discounted rate. The Maryland Plan was scheduled to go “live” on January 1,1996. By mid-December, 1995, however, the State had grown concerned about Medco’s ability to put together a satisfactory network in time. On December 20,1995, the State issued an “ultimatum” to Medco, requiring Medco to submit a certified list of participating pharmacies within three days. Because Medco failed to assemble a network satisfactory to the State, the State terminated Medco’s contract on December 27, 1995. Ultimately, the State rebid the contract, and awarded it to one of Medco’s competitors. The defendants own or represent approximately one-half of the retail pharmacies in Maryland. On February 20, 1996, Medco filed the instant suit, alleging that the defendants, concerned that the Plan’s deeply discounted rate would squeeze their profits, jointly agreed to sabotage the Plan by boycotting Medeo’s network. In its complaint, Medco claims that the group boycott restrained trade and, therefore, violated Section 1 of the Sherman Act (Counts 1 and 2), and the Maryland Antitrust Act (Counts 3 and 4). Medco’s complaint also advances two ancillary claims. In Count 5, filed under the Lanham Act, Medco claims that a newspaper advertisement, taken out by Rite Aid to criticize the award to Medco, was false and misleading. In Count 6 of the complaint, Medco claims that the defendants tortiously interfered with Medco’s contractual relations with the State of Maryland. In opposing the suit, the defendants denied the existence of a conspiracy, contending that the decision of each not to participate in the Maryland Plan was individual and unilateral. Rite Aid also filed a four-count, non-compulsory counterclaim challenging Medco’s business practice of submitting bids that list Rite Aid as a network participant without first obtaining Rite Aid’s consent. Following extensive discovery, the parties filed cross-motions for summary judgment. The Court held four hearings on the cross-motions. Having carefully considered the record and the arguments of counsel, the Court concludes that Medco's evidence does not tend to exclude the possibility of independent conduct on the papt of the defendants. The evidence is, therefore, insufficient to support a reasonable inference of a conspiracy to violate the antitrust laws. Stated otherwise, a jury would be required to speculate in order to find the existence of a conspiracy among the defendants. Accordingly, by separate Order, the Court shall grant the defendants’ motion for summary judgment on Medeo’s antitrust claims (Counts 1 through 4 of the complaint). The Court also concludes that there is insufficient evidence to support a jury verdict on either Counts 5 and 6 of Medco’s complaint, or Rite Aid’s counterclaim. Accordingly, also by separate Order, the Court shall grant summary judgment on these claims and close the case. I. Background a. The Parties and the Industry In 1995, four of the defendants were engaged in the retail pharmacy business, as follows: Rite Aid, one of the largest U.S. drug store chains, operated some 180 pharmacies in Maryland, employing almost 2,700 people. Giant owned 116 supermarkets in the Mid-Atlantic region. Each of Giant’s 76 Maryland stores included a pharmacy section. NeighborCare operated 20 pharmacies, all of which were in Maryland. Neighbor-Care does not sell “front end” goods, such as beauty aids, tobacco products, magazines and groceries. Instead, Neighbor-Care focuses on sales of pharmaceuticals, and most of its facilities are located within hospitals or medical centers. EPIC is an umbrella organization that represents the interests of independently owned, or “non-chain,” retail pharmacies. One of EPIC’s principal objectives is to obtain for its members some of the economies of scale (e.g. group buying and advertising) enjoyed by chain drug stores. In 1995, EPIC’s membership included over 200 independent pharmacies in Maryland. Some of these pharmacies sell “front end” goods, while others sell only pharmaceuticals. The fifth defendant, Eagle, is a wholly owned subsidiary of Rite Aid. Eagle is a Pharmacy Benefits Manager (“PBM”) and, as such, competes directly with Medco. In partnership with EPIC, Eagle was an unsuccessful bidder for the Maryland contract. The plaintiff, Medco, is a wholly owned subsidiary of international drug manufacturer Merck & Co., Inc. Medco is the second largest PBM in the United States. PBMs were created in response to the rising cost of pharmaceutical products. Before PBMs, drug dispensation tended to be relatively disorganized from an economic standpoint. Employers provided pharmaceutical benefits to their employees through insurance indemnity plans. A covered employee would take his prescription to a local retail pharmacy, pay the pharmacy directly, and submit the receipt to the insurance company. The insurer would reimburse the employee for a percentage of the drug’s retail price. According to industry analysts, this system was decentralized, inefficient, and resulted in high drug prices. Plaintiff’s Exh. 2, Expert Report of Daniel S. Levy (“Levy Report”), at 3. PBMs sought to address these problems by administering pools of claims. A PBM such as Medco will contract with a “plan sponsor,” usually a large employer or a group. For a fee, the PBM creates and manages a drug benefits program for the sponsor’s employees or members. In a variety of ways, PBMs can reduce the sponsor’s costs. For example, a PBM will put together a network of participating pharmacies. In exchange for the privilege of being included in the network, a pharmacy must agree to dispense drugs at a discount, often a substantial one. For each prescription filled, the PBM reimburses the pharmacy under a formula based on the drug’s average wholesale price (“AWP”) less a percentage, plus a dispensing fee. In connection with the Maryland Plan, for instance, network pharmacies were to be reimbursed at a rate of AWP minus 15% plus $2.00. PBMs can also reduce claims processing costs. For each prescription filled, PBMs handle the “paperwork” through a centralized computer system, which enables PBMs to maintain detailed records for each beneficiary, monitor each patient’s drug usage, and prevent patients from taking ineffective or incompatible drugs. Finally, PBMs can also lower costs through the use of “formularies,” or lists of preferred or recommended drugs. Drug manufacturers competing for market share have a strong interest in seeing their products included in these formularies. The manufacturers may offer significant discounts for the privilege of being listed. General Accounting Office, Pharmacy Benefit Managers: Early Results on Ventures with Drug Manufacturers, 1995 WL 788179 (GAO Report) at 7. As more and more companies have entered the PBM business, competition among them to sign up plan sponsors has increased. With respect to price, the PBM that can offer the greatest discount gains a decided edge in winning contracts. Over time, PBMs have insisted on ever steeper discounts, often presenting pharmacies with difficult economic choices whether to join a network or not. Many considerations will influence a pharmacy’s decision. These include the size of the discount, the number of “lives” covered by a particular plan, the pharmacy’s market share in the region, the PBM’s reputation for prompt payment, and whether a particular network is “open” or “closed.” “Open” networks permit any pharmacy to enter or exit at any time. By contrast, in a “closed” network, the membership is fixed at a certain date and other pharmacies may not join afterward. Pharmacies are more willing to accept a steep discount in order to gain entrance into a closed network, especially when the network is small, because the discount is likely to be offset by an increase in customer volume. In open networks, by contrast, the prospect of increased volume is more difficult to evaluate because newcomer pharmacies may enter the plan after it becomes operational, diluting market share. See Deposition of Ann Cooper at 75. The relationship between PBMs and retail pharmacists has been strained from the beginning. Around the country, pharmacists complain that PBMs have done little more than add another expensive link to the distribution chain. PBMs are also slow to pay, have eroded their profit margins, and burdened them with more paperwork, pharmacies argue. Third-party Plans Flourish, Chain Drug Review, Mar. 14, 1994, 1994 WL 12763972, at 2. As an additional sore subject, most PBMs fill prescriptions by mail, thereby directly competing with retail pharmacies. PBMs usually promote their mail order service by offering lower beneficiary co-payments, or allowing beneficiaries to obtain a larger supply of maintenance drugs per prescription, Over the years, street corner pharmacists have lost considerable market share to mail orders. The already strained relationship between retail pharmacies and PBMs was further exacerbated when large drug manufacturers began acquiring their own PBMs. Michael F. Conlan, Mission: Cooperation: Is Pharmacy-Industry Cooperation an Impossible Goal?, Drug Topics Jul. 24, 1995, 1995 WL 8066498 at 2-3. These mergers put a single entity in control of the price at two distribution levels: (i) the price at which pharmacies must buy inventory, and (ii) the price at which pharmacies must sell drugs to the public. The antitrust implications of this vertical integration attracted complaints from retail pharmacists and the attention of federal regulators. See GAO Report, passim. Pharmacies also complain that the wave of PBM/manufaeturer mergers has intensified the competition they face from mail order services. Manufacturers sell drugs to their PBM subsidiaries at discriminatory low prices, pharmacists allege. Retail pharmacy groups have organized to counter these trends in the industry. On April 1, 1995, several pharmacy trade associations and chains, including Rite Aid, filed suit in Federal court in Chicago. The suit, which names several manufacturers (including Merck & Co.) and PBMs as defendants, alleges price-fixing, conspiracy, and other antitrust violations. Hundreds of similar lawsuits filed around the country have been consolidated before the United States District Court for the Northern District of Illinois, where they are pending. See In Re Brand Name Prescription Drugs Antitrust Litigation, No. 94-C-897. In addition, pharmacy trade associations and chains have lobbied state legislatures to enact so-called “fair pricing” laws. In essence, such bills would preclude drug manufacturers from offering lower prices to their own PBM mail order services than to retail pharmacies. In Maryland, the retail pharmacy lobby succeeded in introducing fair pricing legislation in the 1995 legislative session of the Maryland General Assembly. The bill, however, died in committee. In the fall of 1995, during the time of the events leading up to this suit, the Maryland retail drug industry and its lobbyists were making concerted efforts to have fair pricing legislation reintroduced during the upcoming 1996 legislative session. Also in the fall of 1995, the State of Maryland was considering a transfer of its Medicaid population into managed care. Concerned that the State would use a PBM system, pharmacy lobbyists sought legislation “carving out” pharmacy benefits from the Medicaid transfer. The fall of 1995, therefore, saw a flurry of meetings and telephone conferences among industry representatives, their lobbyists, and trade associations to address these issues. b. Award and Cancellation of Medco’s Contract In 1995, a PBM named Prescription Card Services Health Systems, Inc. (“PCS”), managed the prescription drug benefits program for employees and retirees of the State of Maryland. Under the PCS program, pharmacies were reimbursed at the rate of AWP minus 8% plus a $3.75 fee. PCS’s contract with the State began in 1992 and was set to expire on December 31,1995. During the first half of 1995, industry consultants advised the State that the PCS reimbursement rate was significantly above market. Deposition of Ann Cooper at 51. In an attempt to obtain more competitive terms, the State, on June 16,1995, issued a Request for Proposals (“RFP”). Both Medco and Eagle responded. Medco’s “Proposal,” submitted on July-14, 1995, offered mail order service, plus a choice of two different pharmacy networks. The first was the Maryland Exclusive Network (“MEN”), which offered 822 pharmacies and a reimbursement rate of AWP minus 15% plus either $2.00 for branded prescription drugs or $2.50 for generic drugs. The second was the Coordinated Care Network III (“CCN III”), which offered 896 pharmacies and a reimbursement rate of AWP minus 13% plus either $2.00 for branded prescription drugs or $2.50 for generic drugs. Defendants’ Exh. 2. Later, with the submission of its Best and Final Offer (“BAFO”) on August 9, 1995, Medco added a third proposed network, the Coordinated Care Network II (“CCN II”). This third choice offered participation by 99.2% of all Maryland pharmacies, at a price equal to AWP minus 12%, plus $2.25 for branded prescription drugs. Defendants’ Exh. 6. For each proposed network, Medco submitted a list of participating retail pharmacies. Each list included all of the defendants’ outlets, except NeighborCare’s. Before submitting its bid, Medco, in conformity with what it argues is industry practice, did not contact the pharmacies to determine whether they wished to be included. Instead, Medco listed the pharmacies participating in one of its standing networks. Medco claims that it was customary for it to assume that the pharmacies participating in a standing network would participate in any new program offering the network reimbursement rate. Medco claims that a phar-macyT in order to join a standing network, must agree to service all plans bid by Medco at that network’s rate. The defendants dispute this assertion. They contend that they are entitled to, and in fact customarily do, analyze each new plan before agreeing to join. In its counterclaim, Rite Aid challenges as a deceptive business practice Medco’s custom of submitting bids that enumerate Rite Aid as a participating pharmacy without Rite Aid’s prior approval. This dispute need not be resolved here. It is undisputed that none of the defendant pharmacies were contractually obligated to participate in the Maryland Plan. In its RFP, the State of Maryland insisted that bidders use open networks. The networks upon which Medco based its bid were closed rather than open. Thus, the Maryland Plan was distinct from Medco’s existing networks, and none of the defendants were contractually obligated to join it. On July 17, 1995, Eagle entered into a Teaming Agreement with EPIC. Among other terms, Eagle and EPIC contracted to “agree on the price and other financial terms to be proposed to the State,” and to share the costs of retaining the law firm of Piper & Marbury as legal counsel. Plaintiffs Exh. 17 at 4. Eagle and EPIC submitted a joint proposal to the State of Maryland on July 19, 1995. Plaintiffs’ Exh. 18. On August 4, 1995, the Maryland Department of Budget and Fiscal Planning advised Medco that it had been selected as a finalist. Eagle and EPIC did not make it to the finals. In its letter to Medco, the State requested a number of clarifications, including confirmation of the number of pharmacies participating in each Medco network. In response, on August 9, 1995, Medco submitted its best and final offer. Defendants’ Exh. 6. In so doing, Medco confirmed participation by the pharmacies listed in its original Proposal (including all of the defendants’ pharmacies save NeighborCare). In an optimistic note, Medco added: “[hjistory has demonstrated that with the announcement of the State’s commitment to utilize the chosen network, the small number of pharmacies not currently participating will quickly join yielding numbers similar to the CCN II.” Id. Around August 15, 1998, a committee of the Maryland Department of Budget and Fiscal Planning analyzed the offers submitted by the finalists. Deciding that Medco’s MEN offered the most favorable terms, the committee recommended that Medco receive the award. Deposition of Patrick Renaud at 123. In Maryland, the Board of Public Works (“BPW”), which includes the Governor, is the ultimate contracting authority. Oh September 13, 1995, the BPW met and approved the award to Medco. Among the three network choices, the State selected the MEN, with its reimbursement rate of AWP minus 15% plus $2.00. Governor Glendening expressed disappointment that the award could not be made to a local Maryland company. Nevertheless, Glendening voted for Medco because of the significant savings to the State. Defendants’ Exh. 8. Under the terms of the award, the Maryland Plan was scheduled to, go “live” on January 1, 1996. This meant that Medco was contractually required, by that date, to assemble a network including at least 86.3% of Maryland pharmacies. Proposal at 118. Medco was ultimately unsuccessful, and more than half of Maryland retail pharmacies declined to join the MEN. Among the defendants, Rite Aid, Giant and NeighborCare corporately declined to participate, as did almost half of the 200 independent EPIC pharmacies. Other prominent drugstore chains (e.g. CVS and Reveo) declined to participate, but were not sued by Medco. As January 1st drew near, the State became increasingly concerned about Medco’s ability to assemble a network. At a BPW meeting on December 20, 1995, Governor Glendening issued Medco an “ultimatum,” requiring Medco to provide a certified list of participating pharmacies within three days. See Defendants’ Exh. 188, John W. Frece, Md. Takes 2d Look at Medco Contract, Baltimore Sun, December 21, 1995. Medco submitted a list to the State on December 26, 1995. The list, however, failed to satisfy Department of Budget and Fiscal Planning Secretary Marita Brown. Accordingly, on December 27, 1995, the State rescinded the award and canceled the contract with Med-co. Medco claims that the defendants, led by Rite Aid, engaged in a conspiracy to sabotage Medco’s network. II. Discussion: Antitrust Claims Summary judgment standards apply equally to antitrust cases as to others. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317, 1322 (4th Cir.1995). The Court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to survive summary judgment, the non-moving party must present evidence from which a reasonable jury could return a verdict in its favor. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 768, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The complexity of antitrust cases does not make summary judgment inappropriate. On the contrary, Rule 56 may be a particularly appropriate and useful tool for sorting out the “unusual entanglement of legal and factual issues frequently presented in antitrust cases ... [and] is favored as a mechanism to secure the just, speedy and inexpensive determination of a case, when its proper use can avoid the cost of trial.” Thompson Everett, 57 F.3d at 1322 (citations omitted). The Court must take care not to foreclose trial when the case presents genuinely disputed, material facts. Nevertheless, as the Fourth Circuit made clear in Thompson Everett, (i) “the mere existence of some disputed facts does not require that a case go to trial,” and (ii) “[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate to support a jury verdict.” Id. at 1323 (citations omitted) (emphasis added). Section 1 of the Sherman Act prohibits conspiracies in restraint of trade. 15 U.S.C. § 1. Consequently, “[a] violation of § 1 requires that two or more persons act in concert. Independent action is not proscribed, and a business has a right to deal, or refuse to deal, with whomever it likes.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919); Laurel Sand & Gravel, Inc. v. CSX Transportation, Inc., 704 F.Supp. 1309, 1319 (D.Md., Niemeyer, J.), aff'd 924 F.2d 539 (4th Cir.1991). Direct evidence of a conspiracy is not required for a plaintiff to survive summary judgment on a Section 1 claim. An agreement to restrain trade may be inferred from circumstantial evidence alone. When, however, a case is based solely upon circumstantial evidence, and such evidence is ambiguous (meaning that it is equally consistent with an illegal agreement as with independent conduct), the plaintiff must produce additional evidence tending to exclude the possibility of legitimate conduct on the part of the defendants. The Supreme Court announced this test in a 1984 decision, Monsanto Co. v. Spray-Rite Service Corp. , Monsanto, a manufacturer of pesticides, terminated Spray-Rite as a distributor. Spray-Rite sued under Section 1 of the Sherman Act, alleging that the termination resulted from a conspiracy between Monsanto and other distributors. In defending the suit, Monsanto acknowledged that other distributors had complained concerning Spray-Rite’s low prices, but contended that the complaints had no bearing upon its decision. It terminated Spray-Rite for other reasons, primarily Spray-Rite’s failure to comply with Monsanto’s new marketing practices, Monsanto contended. 465 U.S. at 756-57.104 S.Ct. 1464. The jury disagreed, finding that Monsanto had conspired with other distributors to terminate Spray-Rite, and awarded Spray-Rite treble damages. Id. at 758.104 S.Ct. 1464. The United States Court of Appeals for the Seventh Circuit affirmed, holding that an antitrust plaintiff survives a directed verdict motion by proving that “a manufacturer terminated a price-cutting distributor in response to or following complaints by other distributors.” 465 U.S. at 758, 104 S.Ct. 1464. The Supreme Court also affirmed, but rejected the standard applied by the Seventh Circuit. Instead, the Supreme Court announced a more exacting test. As the Supreme Court stated, Spray-Rite was required to prove a conscious commitment between Monsanto and another distributor to achieve an unlawful objective. 465 U.S. at 764, 104 S.Ct. 1464. In other words, the plaintiff was required to prove, by a preponderance of the evidence, that the termination resulted from a conscious agreement between Monsanto and another distributor. Id. 465 U.S. at 763, 104 S.Ct. 1464. The Supreme Court expressed concern that “[permitting an agreement to be inferred merely from the existence of complaints, or even from the fact that termination came about ‘in response to’ complaints, could deter or penalize perfectly legitimate conduct ... inhibit management’s exercise of independent business judgment and emasculate the terms of the statute.” Id. at 763-64, 104 S.Ct. 1464. For this reason, “something more than evidence of complaints is needed.” Id. at 763-64, 104 S.Ct. 1464. The Supreme Court held that “there must be evidence that tends to exclude the possibility of independent action [on the part of the defendants].” 465 U.S. at 768, 104 S.Ct. 1464 (emphasis added). That is, “There must be direct or circumstantial evidence that reasonably tends to prove that the [alleged conspirators] had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. The Monsanto standard applies with equal force to the summary judgment stage of an antitrust case. In order to survive a motion for summary judgment, a Section 1 plaintiff must present sufficient evidence from which a reasonable jury could infer an unlawful agreement on the part of the defendants. Because the plaintiffs evidence must tend to exclude the possibility of independent action, “conduct [by defendants that is] as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., et al., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); citing Monsanto, 465 U.S. at 764, 104 S.Ct. 1464. This principle was illustrated Laurel Sand & Gravel. The plaintiff, LSG, complained that CSX, a national railroad, would not permit a short line railroad to use CSX’s tracks to haul LSG’s sand and gravel to market. LSG relied upon evidence of earlier business dealings between CSX and Millville, a competitor of LSG’s, as circumstantial evidence from which an overarching conspiracy could be inferred. 704 F.Supp. at 1317-18. District (now Circuit) Judge Niemeyer, writing for this Court, found such evidence insufficient to survive summary judgment because it failed to exclude “the possibility that CSX’s decision to deny trackage rights was a unilateral decision motivated by plausible business reasons.” 704 F.Supp. at 1320. Judge Niemeyer explained that CSX’s conduct was consistent with CSX’s preexisting marketing plan, which intended short lines to be feeder railroads, and not substitutes, for CSX’s transportation service. Under this plan, the short lines would bring cargo to CSX’s tracks, and CSX would carry the freight to its destination. The arrangement sought by LSG was contrary to CSX’s plan because a short line railroad, and not CSX, would carry LSG’s sand and gravel over CSX’s track. In granting summary judgment, Judge Niemeyer reasoned that CSX’s evidence was insufficient because “an explanation of CSX’s decision to deny [the short line] trackage rights did not require the assumption of an agreement with Millville.” Id. (emphasis added). In evaluating Medco’s evidence, the Court must give the plaintiff “the full benefit of [its] proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962) (citations omitted); Phillips v. Crown Central Petroleum Corp., 602 F.2d 616, 625 (4th Cir.1979). In other words, the “character and effect' of a conspiracy áre not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” Continental Ore Co., 370 U.S. at 699, 82 S.Ct. 1404. Quantity of evidence alone, however, is not sufficient to support an inference of conspiracy. In Re Potash Antitrust Litigation, 954 F.Supp. 1334, 1389 (D.Minn.1997) (“if no incident has probative value, all incidents taken together have no probative value”). In the end, the totality of the evidence considered must satisfy what amounts to a two-part test under Monsanto: “First, there must be evidence that the defendants had a conscious commitment to a common scheme designed to achieve an unlawful objective; and [S]econd, there must be evidence that tends to exclude the possibility of independent action or of a legitimate business purpose on the part of the defendants.” Laurel Sand & Gravel, 924 F.2d at 542-43 (citations omitted). a. Independent Conduct Some have argued that in Matsushi-ta, the Supreme Court limited the applicability of the Monsanto test to cases in which the plaintiffs conspiracy theory is economically implausible. According to this position, to withstand a summary judgment motion, a plaintiff is required to produce evidence “tending to exclude the possibility of independent conduct” only when the economic theory relied upon by the plaintiff is impractical. This Court rejects any such interpretation of Matsushita. The Supreme Court did not alter the Monsanto standard, but, instead, decided that the plaintiffs burden of production is higher when its conspiracy theory makes little economic sense. 475 U.S. at 587, 106 S.Ct. 1348. Conversely, the burden of coming forward with evidence “tending to exclude the possibility of independent conduct” is lesser when the plaintiffs theory is economically plausible. Id at 588, 106 S.Ct. 1348. The facts of Matsushita warrant a brief discussion. The plaintiffs were American manufacturers of television sets. They alleged that the defendants, competing Japanese manufacturers, conspired to set artificially high prices in Japan in order to subsidize a predatoiy pricing campaign in the United States. 475 U.S. at 578, 106 S.Ct. 1348. After the Third Circuit reversed the trial court’s grant of summary judgment in favor of the defendants, the Supreme Court granted certiorari to determine, in part, whether the appeals court had applied the proper standard. Id at 582, 106 S.Ct. 1348. The Supreme Court found that the Third Circuit misapplied the standard, reversed, and remanded the ease for further proceedings. Id at 598, 106 S.Ct. 1348. Reviewing the record, the Supreme Court focused on three closely related issues. First, the Court concluded that the plaintiffs’ theory was economically unsound because the alleged conspiracy had lasted over twenty years without success (it being unlikely that the alleged conspirators would have accepted sustained losses over such a long period). Id. at 590-91,106 S.Ct. 1348. Second, the plaintiffs’ case relied primarily on evidence of the defendants’ price-cutting. The Court explained that this kind of evidence is inherently speculative, because price cutting is normal business behavior. Id. at 589-90, 106 S.Ct. 1348. The Court worried about permitting a jury to infer antitrust liability from conduct equally suggestive of a properly functioning market as it is of a conspiracy. Id. Third, the Court reiterated the concern, expressed in Monsanto, that the threat of antitrust liability might chill legitimate pro-competitive conduct (i.e. price cutting). Id. at 593-94, 106 S.Ct. 1348. The Court worried that manufacturers might refrain from cutting prices for fear of being accused of collusive predatory behavior. Id. Matsushita did not replace the Monsanto test. The Matsushita Court took pains to point out that evidence tending to exclude the possibility of independent conduct is required whether or not the plaintiffs theory is plausible. 475 U.S. at 597, n. 21, 106 S.Ct. 1348; see Thompson-Everett, 850 F.Supp. 470, 479, aff'd, 57 F.3d 1317 (4th Cir.1995). The extent to which the plaintiffs conspiracy theory is economically reasonable is simply a factor to be taken into consideration. See Apex Oil Co. v. Joseph DiMauro, 822 F.2d 246, 253 (2d Cir.1987). When the plaintiffs conspiracy theory is economically plausible, the Court may require a lesser quantum of “tending to exclude” evidence. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1232 (3rd Cir.1993). Conversely, when the plaintiffs theory is implausible, the Court may require a greater quantum of such evidence. The same holds true for the other two related concerns expressed by the Supreme Court in Matsushita. The quantum of “tending to exclude” evidence required for the plaintiff to survive summary judgment varies with the risk that, under the circumstances of the case, the threat of antitrust liability may chill legitimate, pro-competitive conduct on the part of the alleged conspirators. The greater the risk of chilling permissible behavior, the more demanding the showing required of the plaintiff to survive summary judgment. Petruzzi’s IGA Supermarkets, Inc. v. Darling Delaware Co., Inc., 998 F.2d 1224, 1232 (3rd Cir.1993). In this case, Medco’s theory is more plausible than the one advanced by the plaintiffs in Matsushita. Medco alleges that the defendants conspired to boycott the Maryland Plan because the Maryland Plan squeezed their profit margins. Through the group boycott, the defendants hoped that the Maryland Plan would be withdrawn and replaced with a new plan offering a better reimbursement rate. The boycott might cost the defendants short term profits. Unlike Matsushita, however, the conspiracy would not require the defendants to sustain long term losses. Because the Maryland Plan was open, the defendants could disband the boycott and join the Maryland Plan if, despite their efforts, the Plan successfully went live. While Medco’s economic theory is plausible, it does have significant weaknesses. Other major drugstore chains, notably CVS and Reveo, also declined to participate in the Maryland Plan, but were not named as defendants. Medco neither alleges that these companies participated in the boycott, nor offers evidence that they did so. Thus, non-participation by a drugstore chain is as consistent with legitimate, independent decision making as it is with conspiracy. Historically, the defendants sometimes participated, and sometimes elected not to participate in plans offering the same or a similar reimbursement rate as the MEN. Medeo has offered no evidence that the defendants’ non-participation in such networks was based upon collusion. Thus, non-participation in the MEN is, from the standpoint of history, as consistent with non-collusive behavior as it is with Medco’s conspiracy theory. Finally, the industry’s reaction to the Maryland Plan demonstrates that the Plan was marginal economically. Of the 200 independent pharmacies in the EPIC network, approximately 100 joined the Maryland Plan, and approximately 100 did not. The same pattern held true for other independent pharmacies. Of the large chains, some declined, but others (including the entire Safe-way chain) joined. When a financial arrangement is at the economic margin, one would expect some competitors to accept the offer, and some to decline. Thus, the defendants’ actions are economically unexceptional. Paraphrasing Judge Niemeyer’s comment in Laurel Sand & Gravel, “[a]n explanation of [the defendants’ conduct] does not require the assumption of an agreement [among them].” 704 F.Supp. at 1320. In short, Medco’s economic theory, while plausible, is not so compelling as to warrant a relaxation of Medco’s burden of producing evidence tending to exclude the possibility of independent conduct on the part of the defendants. 1. Evidence of Independent Conduct We shall now analyze the facts to determine whether Medeo has come forward with sufficient evidence tending to exclude the possibility that the defendants reached their decisions independently. (i) Rite Aid The State awarded the PBM contract to Medeo on September 13,1995. Shortly thereafter, in early October, 1995, Rite Aid informed Medeo that it would not participate in the Maryland Plan. This decision was reached significantly earlier than the decisions of the other defendants. Also in early October, Rite Aid reiterated its position that it was not obligated to participate in Medco’s “standing” EPN network. Rite Aid advances three reasons for its decision. First, joining would have been inconsistent with the bid protest lodged by Eagle (Rite Aid’s subsidiary) and EPIC on September 18, 1995. In their protest, Eagle and EPIC contended that the award to Med-eo was arbitrary, capricious and unsupported by the evidence. Defendant’s Exh. 128 at 4. The protesters complained that the State failed to verify the accuracy of Medco’s Proposal and chose Medeo merely because it was the low bidder. Id. at 5. A focal point of the protest was the representation in Medco’s Proposal that Rite Aid would participate in the MEN. This was a material falsehood, the protest contended, because Rite Aid had never agreed to join. According to Joel Feldman, a decision by Rite Aid to join Medco’s Maryland Plan would have undercut Eagle’s bid protest. Feldman Dep. at 25-26. Second, Feldman, Rite Aid’s PBM coordinator, frequently declined participation in a new network with the expectation that the PBM would be forced to offer better terms later. Because of Rite Aid’s size and market clout, this strategy was frequently successful. Third, the low reimbursement rate under the Maryland Plan made the Plan economically marginal. Around the country, Rite Aid sometimes joined networks with rates comparable to the MEN, and sometimes Rite Aid did not. Facing a low reimbursement rate, Rite Aid’s decision to join depended upon a number of factors, including (i) whether the plan was open or closed; (ii) the number of “lives” covered by the plan; (iii) the prominence of the plan sponsor; and (iv) Rite Aid’s market share in the territory serviced by the plan. Feldman Decl. ¶¶4-8. With respect to the last point, Martin Grass, Rite Aid’s Chairman and CEO, testified without contradiction that Rite Aid was more inclined to accept a lower reimbursement rate in places where the chain was attempting to build market share, whereas Rite Aid might reject a low rate in areas where it enjoyed a strong presence. Grass Dep. at 40. Feldman testified that Rite Aid was also concerned about the industry trend toward lower and lower reimbursement rates. Feld-man worried that accepting a low rate on a plan as large and prominent as the Maryland Plan might accelerate this race to the bottom. Feldman Dep. at 63-65. In rebuttal, Medco claims that Eagle’s bid protest was a sham, filed only to provide cover for the conspiracy. In support of this theory, Medco points out that Eagle’s bid ranked low on the State’s list. If Medco were knocked out, the award would not go to Eagle, but to another bidder. Defendants’ Exh. 129 at 2-3. Moreover, the State denied the bid protest on November 14,1995. Thus, Rite Aid could not rely legitimately on Eagle’s bid protest as an excuse for non-participation after that date, Medco contends. These arguments, however, do not cut clearly in Medco’s favor. The fact remains that Eagle and EPIC did lodge a bid protest and pursued it vigorously. Eagle contested its low ranking, and challenged the assumptions used by the Department of Budget and Fiscal Planning to downgrade Eagle’s bid. Although Eagle’s bid protest was denied on November 14,1995, Eagle appealed the denial on November 24, 1995, and the appeal was still pending when the state canceled Medco’s contract. Defendants’ Exh. 130. Thus, in essence, Medco offers only speculation to support a contention that the bid protest was conceived as a smoke screen to cover up or facilitate a conspiracy. Medeo’s rebuttal to Rite Aid’s other arguments is also weak. While Rite Aid had accepted plans with similar rates to the MEN, it had rejected others. Thus, a rejection of the MEN was not out of character. Medco concedes that Feldman frequently rejected plans in order to extract better terms for Rite Aid. In fact, Andrew Johnson of Medco testified on deposition that he did not take Feldman’s initial “no,” in early October, 1995, as a final decision. According to Johnson, a “no, no, no” from Feldman did not mean “no,” and Johnson fully expected Rite Aid to join the network later. Johnson Dep. at 152. Moreover, there was no pressure on Rite Aid to join at the threshold. Because the Maryland Plan was open, Rite Aid would pay no penalty for holding out; the window for joining would never slam shut. (ii) Giant James Wirth, Giant’s Assistant Director of Managed Care Programs, was responsible for analyzing the profitability of pharmacy networks. The ultimate decision whether to join a particular network, however, rested with the company’s Chairman, President, and CEO, Peter Manos. Manos Dep. at 54. The award to Medco was announced on September 13, 1995. On September 15th, Wirth prepared a memorandum for his immediate superiors, Vice-President of Pharmacy Operations. Russell Fair and Pharmacy Controller Jay Cohen. Defendants’ Exh. 139. According to Wirth’s calculations, the shift from the existing PCS plan to Medco’s MEN would reduce Giant’s annual profits by more than $1.2 million. Defendants’ Exhs. 139, 142. Wirth’s memorandum also cautioned that Medco’s plan was “completely open,” and would include a mail order component. Defendants’ Exh. 139. On deposition, Wirth testified that as early as 1994, Russell Fair, Jay Cohen and he had begun to worry about the profitability of certain networks. Wirth Dep. at 89. Before, during, and after 1995 Giant had abandoned a number of plans with rates comparable to the MEN. Defendant’s Exhs. 89-95. Wirth, Fair, and Cohen all considered the MEN to be a part of a disquieting trend towards unprofitability. On September 25, 1995, nearly two weeks after the announcement of the award to Med-co, Wirth told Medco’s Director of Pharmacy Relations, Robert Bertani, that Giant did not anticipate participating in the Maryland Plan. Wirth Dep. at 204. On October 13, 1995, Wirth spoke with Bertani again, confirming that the MEN rate was too low for Giant, and asking Bertani not to list Giant among the participating pharmacies. Id. at 257. On November 20th, Bertani called Wirth to ask Giant to make a final decision by November 22,1995. Wirth Dep. 317. On November 22nd, Fair and Wirth met to formulate a recommendation to Giant’s upper management. Id. 326-28. After talking it over, Fair concluded that participation would be against Giant’s economic interests. He instructed Wirth to advise Medco of this decision. Later that day, Wirth phoned Ber-tani and advised him that (i) Fair would recommend against participation, but (ii) upper management might overrule Fair based on overall strategic considerations. Id. at 326-29. On December 6, 1995, Fair submitted a memorandum to Giant’s top management: Peter Manos (Chairman, President, and CEO), and David Sykes (CFO and Senior Vice-President of Finance). Defendants’ Exh. 156. The general topic of the memorandum was the profitability of Giant’s participation in PBM networks. Fair advised his superiors that on “[a]ll plans with reimbursement rates of AWP - 15% + $2 .00[, Medco’s MEN rate,] or less we are losing money on incremental costs' — cash discount not included.” Id. In his memorandum, Fair also predicted that the shift to the Maryland Plan would reduce Giant’s reimbursements by $1.25 million a year. Fair added that he and Wirth were “hanging tough on accepting contract, but need advice before January 1.” Id. Fair moved to a discussion of the Federal Employees plan, which was also administered by Medco. Fair warned that the Federal Plan’s mail order service was underpricing Giant stores by about 20%, causing Giant to lose about 225,485 prescriptions and over $10.3 million in revenues per year. Id. Fair closed with the question: “[h]ow much are we willing to lose before saying no?” Id. On December 7, 1995, Wirth, Fair, and Cohen met face-to-face with Medco’s Bertani. The three informed Bertani that Giant’s upper management had decided not to participate in the Maryland Plan at the MEN rate. Wirth Dep. at 352. Wirth confirmed Giant’s position in a letter to Bertani dated December 8, 1995. Defendants’ Exh. 157. The letter also advised Bertani that Giant was dropping out of Medco’s Exclusive Provider Network. Wirth added that Giant would “gladly reconsider [its] decisions if the reimbursement rates increase to a reasonable level.” Id. In opposing summary judgment, Medco contends that Giant’s profitability analysis is disingenuous, and that the company would have made money by joining the Maryland Plan. As Medco points out, Wirth’s projections do not take into account “ancillary” sales and cash discounts. An ancillary sale occurs when a customer, drawn into a pharmacy to fill a prescription, purchases groceries, cosmetics, or some other item. A low profit margin, or even a loss, in pharmaceutical sales, may be more than offset by profits from ancillary sales. Medco also point out that, in 1995, Giant participated in several pharmacy networks offering comparable or lower rates than the Maryland Plan. Plaintiffs Exh. 2 at 33-35; Plaintiffs Exh. 3 at 11-12. Although Medco may disagree with Giant’s accounting practices, it has produced no evidence that Giant’s cost analyses were pretex-tual, or that they were written as part of a cover-up. Nothing in the record suggests that either the Wirth or the Fair memoran-da, both of which were written to their superiors, were authored to provide Giant with “cover” in the event of future litigation. Also, Giant produced pro forma analyses prepared both before and after the fall of 1995. These reveal a consistent methodology; Giant never took ancillary sales and cash discounts into consideration when evaluating profitability. Moreover, the record demonstrates that, beginning in 1994, Giant had dropped a number of plans with rates comparable to the Maryland Plan. It is only reasonable to infer that Giant did so because it considered the plans unprofitable despite the potential for ancillary sales. Medco next focuses on the events of late December, 1995. On December 26th, pressured by the State’s ultimatum, Medco increased its efforts to secure Giant’s participation. Bertani and Richard Mountjoy, Medco’s Vice-President of Pharmacy Network Management, telephoned Wirth and Fair. They offered Giant the option of joining the Maryland Plan at the CCN III reimbursement rate (AWP minus 13% plus $2.00). At that time, Giant serviced a number of plans at the CCN III rate. Although Berta-ni could not recall precisely what Wirth and Fair said, he interpreted their response as an agreement to participate at the increased rate. Bertani Deposition at 103-106. Later that day, the State contacted Fair to inquire whether Giant had, in fact, agreed to participate in the Maryland Plan at the CCN III rate. Fair responded that he was “not sure.” Deposition of Patrick Renaud at 501. Medco claims that Fair equivocated for the sole purpose of undercutting the State’s confidence in Medco’s network. The Court cannot agree that the evidence fairly supports such an inference. There is no evidence that Giant had made a corporate decision to participate in the Maryland Plan at the CCN III rate. There is no evidence that Bertani’s inquiry ever reached Manos, much less that Manos had signed off. Under such circumstances, Fair’s statement that he was “not sure” whether Giant would participate at the CCN III rate would have been an accurate reflection of the state of affairs on December 26,1995. Moreover, Bertani has no clear recollection of the December 26th conversation, or that Fair and Wirth unequivocally assented to the CCN III rate. On deposition, Bertani could only recall that earlier in December Fair had indicated that Giant would participate at the higher rate of “minus 12 or minus 13 off AWP plus $4.” Bertani Dep. at 105. Similarly equivocal is a memorandum that Bertani wrote to Wirth, confirming the December 26th conversation. Plaintiffs Exh. 104. Bertani wrote that Wirth agreed (1) to ask Fair about extending the deadline on which Giant would cease to participate in Medco’s EPN; and (2) “to continue to participate in the PAID Coordinated Care Network, Level 3 [the CCN III] serving all current clients as well as those new clients beginning January 1, 1996.” Id. Bertani’s memorandum neither mentions the Maryland Plan, nor provides any indication of Giant’s agreement to participate in it. (iii) EPIC As the coordinator for a network of around 200 independent pharmacies in Maryland, the EPIC Board faced the following choices: it could join the Maryland Plan as a network, thereby binding each individual member pharmacy to participate; or it could decline to join as a network, thereby leaving each individual member pharmacy free to make an individual decision. The EPIC Board chose the latter path. More than 100 member pharmacies, however, elected to participate. Defendants’ Exhs. 177,178. Medco argues that the EPIC Board’s refusal to join as a network supports an inference of conspiracy. The record, however, clearly supports a contrary inference of independent action. The EPIC Board first learned of the Maryland Plan’s reimbursement rate on September 21, 1995. On that date, EPIC Board President William Popomaronis attended a “debriefing” meeting at which Maryland’s Patrick Renaud explained the reasons for the State’s rejection of the Eagle/EPIC bid. Po-pomaronis’s reaction was prompt and forceful. In a strongly worded letter to Governor Glendening, dated September 26,1995, Popo-maronis complained that independent local pharmacies had been “severely injured by this award.” Defendants’ Exh. 165 at 3. Among other criticisms, Popomaronis noted that the mail order feature of the Maryland Plan would divert profits from local pharmacies to New Jersey-based Medco. Id. Popomaronis pointed out that, under the new reimbursement rate, EPIC pharmacies’ profits would be slashed by 59 percent on the average $30.00 prescription. Id. at 4. Popo-maronis also complained that the joint Eagle/EPIC bid had been unfairly downgraded. He urged Governor Glendening to reverse course. Id. at 3-4. In late October, 1995, Medco’s Robert Ber-tani and Andrew Johnson contacted Patrick Berryman, a broker representing EPIC. Their purpose was to inquire whether EPIC would participate in the Medco Plan. Berry-man replied that he had standing authority to bind EPIC to networks offering a rate of AWP minus 13% plus $2.00, or higher. Because the MEN reimbursement rate fell below this threshold, Berryman stated that the full EPIC Board would have to decide whether EPIC should participate. Deposition of Patrick Berryman, at 50-51. In anticipation of a December 4, 1995, meeting of the EPIC Board, Bertani supplied Berryman with additional information throughout the month of November. On December 4, 1995, the EPIC Board met by conference call. After discussion, the Board unanimously rejected participation “based on negative economic impact on Network pharmacies and a history of increasing slow payment for services rendered by [Medco].” Minutes of December 4, 1995, EPIC Board meeting, Defendants’ Exh. 171. The Board also directed Berryman to ask Medco to “reconsider reimbursement level.” Id. Contemplating that individual member pharmacies might wish to join despite the low reimbursement rate, the Board expressly agreed to assist Medco in contacting EPIC pharmacies. The Board directed Berryman to inform Medco of EPIC’s “offer to act as messenger to bring [Medco’s] contract to those members asking to participate.” Id. When informed of this decision, Medco’s Bertani requested an opportunity to address the EPIC Board personally. The Board agreed, and a conference call was set up for December 8,1995. During the call, Bertani explained the benefits of the Maryland Plan, emphasizing his belief that reduced profit margins would be more than offset by increases in customer volume. Berryman Dep. at 379-80. Bertani forecast that only about fifty percent of Maryland pharmacies would participate, meaning that EPIC pharmacies would be able to pick up market share. Id. at 382-83. In response to Bertani’s remarks, Board members expressed their concern that, because the network was open, any increases in market share might be wiped out by large pharmacy chains joining late. After December 8th, Bertani requested yet another opportunity to pitch the EPIC Board. Again EPIC agreed. In a December 14, 1995, conference call, Bertani, joined by Mountjoy, addressed the full EPIC Board. At the end of Bertani’s presentation, the Board reaffirmed its decision to decline participation as a group. The Board, however, specifically advised Bertani and Mountjoy that Medco was free to contact each EPIC pharmacy separately. Deposition of Richard Mountjoy, at 250. The Board also said that the entire EPIC network would participate at the CCN II rate of AWP minus 12% plus $2.00. Berryman Dep. at 413. Medco contends that EPIC’s concern over the reimbursement rate is specious. Medco asserts this, in principal part, because EPIC was at that time participating in one of Med-eo’s standing networks (the EPN), which reimbursed at the same rate as the Maryland Plan. Thus, EPIC was rejecting a rate that it had previously accepted. The evidence unmistakably shows, however, that EPIC’s concern over the reimbursement rate was not a make-weight argument. EPIC voiced strong objection to the Maryland Plan’s reimbursement rate as soon as the award was announced. Athough Popo-maronis’s letter to Governor Glendening advances many criticisms of the award to Medco, the low reimbursement rate was prominent among his concerns. The EPIC Board pointed to the reimbursement rate as the prime reason for rejecting the Maryland Plan on December 4, 1995. During Berta-ni’s subsequent conference calls with the Board, the Board consistently and specifically pointed to the reimbursement rate, coupled with the openness of the MEN, as the prime reason for declining participation. It is also clear that EPIC never considered the Maryland Plan and the standing EPN to be equivalent. In his October, 1995, conversation with Berryman, Bertani argued that the Maryland Plan was comparable to the EPN. In response, Berryman adverted to the crucial distinction between the two networks. The EPN was a closed network, enabling community pharmacies to gain market share. As Berryman explained, no such increase could be guaranteed under the Maryland Plan. Berryman dep. at 379-81. Following the December 14th conference call, Berry-man reiterated these points in a memorandum to Bertani. Plaintiffs Exh. 60. As Medeo concedes, EPIC cooperated fully with Medco’s efforts to solicit the individual pharmacists. There is no evidence that EPIC made any attempt to dissuade individual pharmacies from joining. Slightly more than half of the EPIC pharmacists did join, and roughly the same proportion declined. This “plebiscite” is strong evidence that the individual pharmacists concluded that the Maryland Plan was of equivocal economic value. (iv) NeighborCare NeighborCare’s decision making is centralized in the company’s two owners, President and CEO Michael Bronfein, and Executive Vice-President Stanton Ades. As discussed, NeighborCare’s 20'pharmacies, all of which are located in health care facilities, concentrate on sales of prescription medicines. Throughout its history, NeighborCare has never participated at a reimbursement rate as low as the Maryland Plan’s. For this reason, Medeo, when submitting its bid to the state, did not include NeighborCare pharmacies as part of its proposed network. On deposition, Medco’s Bertani testified that he had no hope that NeighborCare would join the Plan at the MEN rate. Bertani Dep. at 737. Both Bronfein and Ades testified that they learned the details of the Maryland Plan’s reimbursement rate in early October, 1995, and decided at once that NeighborCare would not participate. Deposition of Michael G. Bronfein at 83; Deposition of Stanton Ades at 150. Both men also testified that NeighborCare has a longstanding policy of rejecting any networks offering reimbursement rates that fall below the company’s profitability threshold, and that the Maryland Plan was clearly such a network. Bron-fein Dep. at 62, 74, and 82-83; Ades Dep. at 150. Despite this, Medeo claims that Neighbor-Care’s rejection was pretextual and that, absent a conspiracy, NeighborCare would have joined. As evidence of this, Medeo offers the fact that sometime after mid-October, 1995, NeighborCare requested more information from Medeo about the Maryland Plan. Medeo also points to a December 4, 1995, memorandum from Ades to Bertani, in which Ades said that NeighborCare was conducting a “thorough review” of the Maryland Plan. Plaintiffs Exh. 92. Had the reimbursement rate been prohibitively low, Ades and Bron-fein would have rejected the Plan out of hand instead of requesting more information, Med-eo argues. Medeo also notes that, in 1992, Neighbor-Care had initially rejected the then-new PCS plan because of an allegedly unprofitable reimbursement rate. A few months after the PCS plan went live, however, NeighborCare was forced to join in order to avoid losing customer volume. Medeo contends that NeighborCare knew from past experience that it could not afford to forgo a plan covering State employees. When approached by Bertani, NeighborCare equivocated instead of joining because of its conspiracy with the other defendants. Medco’s conspiracy theory cannot withstand serious scrutiny. On summary judgment, NeighborCare, without opposition, pointed to many networks, with reimbursement rates equal to or better than the Maryland Plan, that NeighborCare had declined to join. Throughout its history, NeighborCare had never joined a network with as low a rate as the Maryland Plan. The 1992 PCS network offered a reimbursement rate of AWP minus 10% plus $3.75, a substantially higher rate than the Maryland Plan. Even so, NeighborCare joined the PCS network only after it had gone live. Stanton Ades testified without opposition that, sometime after October 3,1995, Bertani telephoned Ades to request an opportunity to explain to NeighborCare the benefits of participation in the Maryland Plan. Ades Dep. at 152. Ades testified that he interpreted Ber-tani’s overture as a potential opportunity to obtain a higher reimbursement rate for NeighborCare. Id. Accordingly, Ades requested further information from Medco. There is no evidence of any kind that Ades was evaluating the economics of the Maryland Plan before he was invited to do so by Bertani. There is no direct evidence that Ades discussed his thinking with any of the other defendants. None of Medco’s circumstantial evidence tends to exclude the possibility of independent action on the part of NeighborCare. b. Parallel Conduct In the absence of direct evidence, the existence of an antitrust conspiracy may be inferred from evidence of “conscious parallelism,” or a “pattern of uniform conduct among competitors.” Thompson Everett, 850 F.Supp. at 480 (citations omitted). Evidence of parallel conduct alone, however, is insufficient to support an inference of a conscious commitment to a common scheme designed to achieve an unlawful objective. In order for a plaintiff to survive summary judgment, evidence of parallel conduct must be accompanied by further evidence tending to disprove the possibility of independent action. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2nd Cir.1987). In this case, the defendants’ conduct was parallel in the sense that all four declined to participate in the Maryland Plan. The manner and timing of their decisions, however, was disparate rather than parallel. Rite Aid’s decision was strong and immediate. Giant, by contrast, attempted from the beginning to obtain a better rate from Medco. Giant definitively rejected the Maryland Plan only on December 8,1995. EPIC cooperated with Medco’s efforts to sign up individual pharmacies, and more than half of EPIC’s membership joined the Maryland Plan. NeighborCare made an immediate decision not to participate, and Medco did not attempt to change NeighborCare’s mind until late in the game. The evidentiary value of the defendants’ parallel decisions is further undercut by the fact that other Maryland pharmacy chains, such as CVS and Reveo, also declined to participate in the Maryland Plan. Medco has not sued these chains, and makes no allegations that they were part of the alleged conspiracy. Medco concedes that