Full opinion text
ORDER FORRESTER, District Judge. This matter is before the court on Defendant R.J. Reynolds’ motion for summary judgment [170-1]; Defendant Brown & Williamson’s motion for summary judgment [171-1]; Defendant Loril-lard Tobacco Company’s motion for summary judgment [173-1]; and Defendant Philip Morris’ motion for summary judgment [174-1]. I. BACKGROUND A. Plaintiffs’ Complaint Plaintiffs are wholesalers and/or distributors that purchase cigarettes directly from Defendants Philip Morris, Inc. (“Philip Morris”), R.J. Reynolds Tobacco Co. (“RJR”), Brown & Williamson Tobacco Corp. (“B & W”), and Lorillard Tobacco Co. (“Lorillard”). In 1994, B & W acquired most of the brands of American Tobacco Co. For the purposes of this litigation, the court refers to both as “B & W.” Although not named as a Defendant in this litigation, Plaintiffs allege that Liggett Group, Inc., also participated with Defendants in the alleged conspiracy. See Second Amended Complaint, ¶27. Named Plaintiffs are Buffalo Tobacco Products, Inc.; F & F Vending Service, Inc.; Holiday Wholesale Grocery Co.; Amsterdam Tobacco Corp.; Boro Park Tobacco; Sunrise Candy & Tobacco Corp.; I. Goldsh-lack Company; Suwanee Swifty Stores, Inc. D.I.P.; Marcus Distributors, Inc.; Hartz Foods; and Wichita Tobacco and Candy Co. Plaintiffs’ complaint alleges that from a period beginning as early as November 1, 1993, Defendants engaged in a conspiracy to raise, fix, stabilize, and maintain the price of cigarettes in the United States at artificially high and noncompetitive levels. B. Procedural History On February 18, 2000, a lawsuit was filed in this court alleging antitrust violations against several tobacco companies. After several additional suits were filed, the Judicial Panel on Multidistrict Litigation transferred four additional similar actions to this court. Plaintiffs filed an amended consolidated class action complaint on June 28, 2000 (“First Amended Complaint”). In sum, the First Amended Complaint alleged that Defendants conspired illegally to fix the wholesale prices of cigarettes in the United States during the period from November 1, 1993, to the present. Plaintiffs based the First Amended Complaint on section 4 and section 16 of the Clayton Act, and the alleged conspiracy was said to violate section 1 of the Sherman Act. The First Amended Complaint also asserted that Defendants fraudulently concealed their price-fixing conspiracy, thereby tolling the four-year statute of limitations generally applicable to federal antitrust actions. Thereafter, Defendants moved to dismiss Plaintiffs’ allegations of fraudulent concealment. In an order dated November 29, 2000, the court dismissed without prejudice Plaintiffs’ allegations of fraudulent concealment for failure to satisfy the pleading requirements. The court also struck from the complaint as “evidence pleading” Plaintiffs’ foreign market allegations pursuant to Federal Rule of Civil Procedure 12(f). Finally, the court dismissed Plaintiffs’ allegations of non-price collusion to the extent they occurred prior to the initiation of the instant conspiracy. On January 23, 2001, the court granted Plaintiffs’ motion for class certification for the following class: All persons in the United States (excluding federal, state and local government entities and political subdivisions, and Defendants and their co-conspirators and their respective parents, subsidiaries and affiliates) that purchased cigarettes directly from one or more of the Defendants, or any parent, subsidiary or affiliate thereof, at any time from February 8,1996 to February 8, 2000. Order, January 23, 2001, at 13. On February 22, 2001, the court granted Plaintiffs’ motion for leave to file an amended complaint, the “Second Amended Complaint.” Defendants again moved to dismiss Plaintiffs’ allegations of fraudulent concealment and any claims for relief outside the four-year limitations period. The court dismissed those of Plaintiffs’ claims in the Second Amended Complaint barred by the four-year limitations period. See Order, June 20, 2001. On February 8, 2002, all Defendants filed motions for summary judgment. The court heard oral arguments on Defendants’ motions for summary judgment on April 23, 2002, and permitted the parties additional, limited briefing after oral argument. C. Facts Relevant to Motions for Summary Judgment Defendants sell cigarettes to direct customers, most often wholesalers, who then sell them to retail outlets. Facts, ¶ 7. Defendants’ wholesale price lists are published to direct customers and are quickly a matter of public knowledge. Id., ¶ 8. Wholesalers set the prices for their sales of cigarettes to retailers, and retailers set the prices for their sales of cigarettes to consumers. Id., ¶ 9 and Resp., ¶ 9. Generally, there are several “tiers” of cigarettes sold in the United States, including premium and discount cigarettes. See Expert Report (Defendants’) of Dr. Kenneth G. Elzinga (“Elzinga Report”), at 30. Discount cigarettes are priced below premium brands. Id. Cigarette companies also manufacture “deep discount” cigarettes, including private label or generic cigarettes, which are priced lower than discount cigarettes. Id. Prior to the beginning of 1993, the market share of discount and deep discount cigarettes increased from less than 1% of all cigarettes sold in the United States in 1980 to 33.0% in late 1992 and early 1993. Facts, ¶ 10. In particular, the market share of Marlboro, Philip Morris’ premium brand, dropped from 27% in the middle of 1992 to 24% at the end of the same year. Marlboro’s share further declined to 21% at the beginning of 1993. Id., ¶ 11. On April 2, 1993, Philip Morris announced a nationwide promotion on Marlboro cigarettes that reduced prices at retail by approximately 40$ per pack. Id., ¶ 13. This announcement became known in the industry as “Marlboro Friday.” Id. RJR, B & W, and Lorillard responded by initiating similar promotions. Id., ¶ 14. Philip Morris announced further decreases in price to take effect on August 9, 1993. Id., ¶ 15 and Resp., ¶ 15. As a result of Philip Morris’ price decreases, the “price gap” between its premium and discount brands was reduced. Id., ¶ 17. RJR matched Philip Morris’ August 1993 price reductions and eliminated the price differential between its 85 millimeter and 100 millimeter cigarettes. Id., ¶ 16 and Resp., ¶ 16. B & W and Lorillard instituted similar list price decreases. Id., ¶ 18. Thereafter, during the time of alleged conspiracy, the following price increases took place: Date of First Announcement Amount of Increase November 8,1993 $ 2.00 per thousand (4$ per pack) May 4,1995 $ 1.50 per thousand (3<t per pack) April 8,1996 $ 2.00 per thousand (4<f per pack) March 6-20,1997 $ 2.50 per thousand (5$ per pack) August 29,1997 $ 3.50 per thousand (7<f per pack) January 23,1998 $ 1.25 per thousand (2.5$ per pack) April 3,1998 $ 2.50 per thousand (5$ per pack) May 8,1998 $ 2.50 per thousand (5$ per pack) July 31,1998 November 23,1998 $ 3.00 per thousand (6$ per pack) $22.50 per thousand (45$ per pack) August 27,1999 $ 9.00 per thousand (18$ per pack) January 14, 2000 $ 6.50 per thousand (13$ per pack) Id., ¶ 26. D. Plaintiffs’ Theory of Conspiracy Plaintiffs assert that the “economic market structure of the cigarette industry is highly conducive to collusion” because four companies control 95% of the market and cigarettes are fungible and highly inelastic. Plaintiffs also contend that the industry has faced the “increasingly-desperate” times in the past several decades. Plaintiffs’ Response to Defendants’ Motions for Summary Judgment (“Pis.’ Resp.”) at 67. With this context in mind, Plaintiffs note that the popularity of discount cigarettes rose in the early 1990s, resulting in RJR and B & W gaining market share by focusing on the discount market. In response, Philip Morris drastically reduced the prices of its cigarettes on Marlboro Friday in April 1993. Plaintiffs contend this reduction was taken in order to “restructure the market to make it more conducive to a collusive arrangement.” Id. Plaintiffs assert that the remaining Defendants ultimately decided to end the price war and agree to increase all prices. Plaintiffs argue that the most significant anti-competitive acts occurred during the formation of the cartel in 1993 and 1994. Plaintiffs contend Defendants formed the cartel by “signaling” their willingness to accept an offer made by Philip Morris. Through Gary Black, an industry analyst, Defendants communicated the specific conditions necessary for a price increase, who would be the price leader, and Philip Morris’ final signal that its conditions for the cartel had been met. Plaintiffs further assert that Defendants consolidated the price tiers between premium and discount cigarettes in order to make the conspiracy easier to form and monitor. Plaintiffs argue that Defendants had numerous opportunities to conspire through Committee of Counsel meetings at the Tobacco Institute and negotiations in 1997 and 1998 leading to settlements of the individual state healthcare lawsuits against the cigarette manufacturers and the Master Settlement Agreement (“MSA”) covering multistate lawsuits. Plaintiffs also contend that the restriction of pricing authority to the highest ranking officers of the companies facilitated Defendants’ conspiracy. Plaintiffs argue that these officials were able to discuss the future pricing of cigarettes during settlement negotiations. Plaintiffs also argue that in the fall of 1993, three of the four Defendants implemented a “permanent allocation” system that was intended to stabilize cigarette prices by limiting supply. Plaintiffs contend that Defendants agreed to exchange information about the quantity of cigarettes sold by brand, size, type, discount, and geographic information in order to monitor that all Defendants were complying with the agreement to fix prices. Plaintiffs aver that the collecting and sharing of such information are against the economic self-interest of each company. As part of the cartel agreement, Plaintiffs contend that RJR and B & W abandoned their strategy of focusing on the discount market, acts also inconsistent with their economic self-interest. Plaintiffs point to other actions taken by Defendants that were against their economic self-interest. For example, Plaintiffs note there was little internal analysis done by each company about whether to follow a competitor’s price increase. Similarly, Plaintiffs contend that Defendants employed “credit memos” when making price increase announcements which Plaintiffs aver delayed the impact of the price increase, so that all other Defendants could “accept” the price increase “offered” by the price leader. Plaintiffs argue that Philip Morris and RJR raised prices in May 1995 after internal recommendations by both companies indicated that they should not raise prices. Finally, Plaintiffs argue that Philip Morris took actions against its economic self-interest by agreeing to pay settlement costs in the M.S.A./Pittsburgh based on market capitalization rather than market share. II. STANDARDS FOR SUMMARY JUDGMENT Contracts or conspiracies to fix prices are illegal per se under section 1 of the Sherman Act. See 15 U.S.C. § 1; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Although Plaintiffs and Defendants dispute the subtleties of the standards for summary judgment in an antitrust case involving an oligopoly, the court finds that Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), clearly establish the standards in this circuit. Plaintiffs assert that “the understanding [among the conspirators] may consist of little more than shared expectations of conduct by persons with common objectives.” Pis.’ Resp., at 17. The court finds this speaks far too broadly for the law and focuses instead on the analysis in Matsu-shita and Harcros. A. Matsushita In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Supreme Court addressed the standards governing motions for summary judgment in the antitrust context. There, the Supreme Court instructed: On summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion. But antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. To survive a motion for summary judgment ..., a plaintiff seeking damages for a violation of § 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. Id. at 587-88, 106 S.Ct. 1348 (internal quotations and citations omitted). The Court further stated that “courts should not permit factfinders to infer conspiracies when such inferences are implausible, because the effect of such practices is often to deter procompetitive conduct.” Id. at 593, 106 S.Ct. 1348. Thus, “if the factual context renders [the nonmovants’] claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary.” Id. at 587, 106 S.Ct. 1348. The Court recognized that “[l]ack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if [defendants] had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.” Id. at 596-97, 106 S.Ct. 1348. The Court went on to state that “[w]e do not imply that, if petitioners had had a plausible reason to conspire, ambiguous conduct could suffice to create a triable issue of conspiracy. Our decision in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), establishes that conduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy.” Id. at 597 n. 21, 106 S.Ct. 1348. B. Harcros In City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998), the Eleventh Circuit extensively discussed the application of Matsushita to alleged conspiracies in an oligopolistic context. First, the court described the nature of evidence at the summary judgment stage: It is settled law that a threshold requirement of every antitrust conspiracy claim, whether brought under section 1 or section 2 of the Sherman Act, is “an agreement to restrain trade. To prove that such an agreement exists between two or more persons, a plaintiff must demonstrate ‘a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.’ ” ... “We recognize that it is only in rare cases that a plaintiff can establish the existence of a conspiracy by showing an explicit agreement; most conspiracies are inferred from the behavior of the alleged conspirators ... and from other circumstantial evidence (economic and otherwise), such as barriers to entry and other market conditions.” Id. at 569 (quoting Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir.1991)). The court then reiterated the instructions of Matsushita described above. While rejecting a reading of Helicopter Support Systems, Inc. v. Hughes Helicopter, Inc., 818 F.2d 1530, 1534 n. 4 (11th Cir.1987), that would require a plaintiff to “exclud[e] the possibility of independent action on the part of the defendants,” the court reaffirmed Matsushita’s requirement that the plaintiff must show “that an inference of conspiracy is reasonable.” Id. at 571 n. 35 (citations omitted). See also In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d Cir.1999) (“in drawing favorable inferences from underlying facts, a court must remember that often a fine line separates unlawful concerted action from legitimate business practices”) (citation omitted). Thus, “conduct which is as equally consistent with permissible competition as it is with an illegal conspiracy does not, without more, support even an inference of conspiracy.” Harcros, 158 F.3d at 571 n. 35 (citation omitted). Applying these standards to the economic circumstances presented in Harcros, the court defined an oligopolistic market as “a market in which the dominant participants ... engag[e] in interdependent or parallel behavior and [have] the capacity effectively , to determine price and total output of goods or services.” Id. at 570 n. 32 (citation omitted). “Conscious parallelism” is a “process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.” Id. at 570 (quoting Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993)). Then the court noted: [I]t is well settled in this circuit that evidence of conscious parallelism [alone] does not permit an inference of conspiracy unless the plaintiff [either] establishes that, assuming there is no conspiracy, each defendant engaging in the parallel action acted contrary to its economic self-interest ... or offers other “plus factors” tending , to establish that the defendants were not engaging merely in oligopolistic price maintenance or price leadership but rather in a collusive agreement to fix prices or otherwise restrain trade. Id. at 570-71. In sum, the court found that “the plaintiffs first must produce evidence showing that the defendants engaged in consciously parallel action. Second, the plaintiffs must show ‘plus factors’ that tend to exclude the possibility that the defendants merely were engaged in lawful conscious parallelism.” Id. at 572. Additionally, the Eleventh Circuit has determined that even when a plaintiff proffers evidence of “plus factors,” these “only create a rebuttable presumption of a conspiracy which the defendant may defeat with his own evidence; this further ensures that unilateral or procompetitive conduct is not punished or deterred.” Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1456 n. 30 (11th Cir.1991). The court is also mindful that it must consider the evidence presented by Plaintiffs as a whole and that “plaintiffs should be given the full benefit of their proof without tight- • ly 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). Plaintiffs misapprehend the standards for summary judgment in the antitrust context on several occasions. Plaintiffs contend that “Defendants bear the burden of proving that there is no set of facts from which a reasonable juror could find that defendants engaged in a conspiracy to raise, maintain and/or stabilize prices in the cigarette industry.” See Plaintiffs’ Reply to Defendants’ Joint Post-Argument Memorandum (“Pis.’ Post-Argument Reply”), at 11. It is unsurprising that Plaintiffs offer no citation for this “standard.” As an initial matter, Defendants generally do not bear the burden of proof in a civil suit. See Herman & MacLean v. Huddleston, 459 U.S. 375, 387, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) (“In a typical civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence.”). Furthermore, even if Plaintiffs are referring to the proof that must be presented at the summary judgment stage, their assertion still misses the mark. Hateros specifically holds that “conduct which is as equally consistent with permissible competition as it is with an illegal conspiracy does not, without more, support even an inference of conspiracy.” 158 F.3d at 571 n. 35 (citation omitted). This is directly contrary to Plaintiffs’ statement of the law. See also Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (“To survive a motion for summary judgment ..., a plaintiff seeking damages for a violation of § 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently.”) (internal citation omitted). Plaintiffs also contend that “[c]ontrary to [Defendants’ implications, interdependent oligopolistic behavior is not what the antitrust laws were designed to protect .... ” See Plaintiffs’ Post-Argument Reply, at 2 n. 2 (noting that antitrust laws were written to protect competition which benefits ■ consumers). The court finds this to be an incorrect statement of the law. The law specifically recognizes that interdependent oligopolistic behavior is not prohibited by antitrust laws. See Harcros, 158 F.3d at 571 (“The requirement of ‘plus factors’ is necessary because evidence of consciously parallel behavior alone leaves the circumstantial evidence of collusion in equipoise; consciously parallel behavior by oligopolists does not in itself support an inference of agreement, of ‘a meeting of the minds,’ any more strongly than it supports an inference of legal price maintenance or leadership.”). In fact, the law is careful in the proof it requires in a circumstantial case precisely because it wants to “ensure[ ] that unilateral or pro-competitive conduct is not punished or deterred.” Todorov, 921 F.2d at 1456 n. 30; see also Matsushita, 475 U.S. at 594, 106 S.Ct. 1348 (“mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect”). Finally, at oral argument and in subsequent briefing, Plaintiffs argued that summary judgment in this case is governed by “boiler plate” provisions used by courts in all summary judgment contexts. See Transcript of Oral Argument, April 23, 2002 (“Oral Argument”), at 41-42. Matsushita and Hateros, however, demonstrate conclusively that the inferences that can be drawn on summary judgment are limited in the antitrust context. See Matsushita, 475 U.S. at 588, 106 S.Ct. 1348; Harcros, 158 F.3d at 570-71. For the same reason, Plaintiffs’ citation to WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988), and Augusta Iron & Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988) (per curiam), are inapposite. See Plaintiffs’ Post-Argument Reply, at 4 & n. 3. Although Plaintiffs rely on In re Coordinated Pretrial Proceedings in Petroleum Products, Antitrust Litigation, 906 F.2d 432, 438-39 (9th Cir.1990), to support their contention that summary judgment is inappropriate, the Ninth Circuit has held that particular analysis in Petroleum Products to be dicta. See In re Citric Acid Litigation, 191 F.3d 1090, 1096 (9th Cir.1999) (“[Plaintiff] cites only a single case, In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 906 F.2d 432 (9th Cir.1990), in support of its proposed legal standard. The plaintiffs in that case, however, presented direct evidence of conspiracy, see id. at 456-57, 459-60 n. 22, thus making dicta any discussion therein of the standard applicable when plaintiffs rely exclusively on circumstantial evidence.”) (emphasis in original). The court, however, has an obligation to consider summary judgment as it relates to this case in light of the more traditional summary judgment standards. The court applied the following thoughts when considering Plaintiffs’ presentation and analyzing the circumstantial evidence and “plus factors” put forward by Plaintiffs. It seems to the court that the law has developed so as to provide very little guidance to determine when an inference is reasonable. As this circuit has said, the line is ephemeral. See Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1325-26 (11th Cir.1982). It has backed away from a rule that circumstantial evidence must exclude other hypotheses. Given the tension between a straightforward reading of Matsushita, which announces that more is required of inferences in antitrust cases than in run-of-the-mill cases and the more standard summary judgment analysis, the court believes it proper to consider what are allowable inferences of an “expressed, manifested agreement,” In re High Fructose Corn Syrup, 295 F.3d 651, 653-54 (7th Cir.2002) (Posner, J.), that Plaintiffs may rely upon to defeat summary judgment. To begin with, it is clear that to create an issue of fact the inference must be “allowable” or “reasonable.” See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir.1996) (“a court may grant summary judgment when it concludes that no reasonable jury may infer from the assumed facts the conclusion upon which the non-movant’s claim rests”). To assure itself and the parties that the court’s judgment on whether a piece of evidence can be admitted as relevant because it creates a reasonable inference, the court here sets out the principles to which it has resorted. First, the import of the piece of circumstantial evidence must actually be of the import that is ascribed to it by Plaintiffs. If, when considered in its entirety, it is totally ambiguous or to the opposite effect, it is not relevant and may not be relied upon by the jury. In dealing with allowable inferences, the court to a large degree is concerned with relevancy—that is, whether it makes a fact of consequence more or less likely. See Fed.R.Evid. 401. In this case, this means that evidence is relevant to Plaintiffs’ position if it makes it more likely that Defendants had an express agreement to fix prices. Circumstantial evidence does not become relevant simply because it can be used by a skilled advocate to persuade a jury that there was an agreement. Persuasion can sometimes be achieved by appeals to prejudice, but that utility does not make the race, ethnicity, or gender of a defendant’s employees relevant in a contract dispute, for example, and any inference drawn therefrom would not be allowable. It is said that an inference is unreasonable if a jury must engage in speculation and conjecture to such a degree as to render its finding “a guess or mere possibility.” Daniels, 692 F.2d at 1325-28. From this statement, the court extracts the idea that the inference must directly and necessarily follow in the context of the case. Judge Posner had a variety of statements from competitors in In re High Fructose Com Syrup. One was: “What are you going to tell [the president of Coca-Cola], that we gotta [i.e., have a] deal with ... our two biggest competitors ... ?” See 295 F.3d 651, 662-63. Among possible inferences, this statement points directly at the one of consequence, and a jury may reasonably find that is so without a high degree of conjecture. On the contrary, a statement by a Philip Morris employee that if Philip Morris raises prices, the other companies will follow does not directly and necessarily point to the existence of an express agreement. First, the statement does not itself connect the prediction to an agreement. Second, given what is known of oligopolies and conscious parallelism, the fact that the statement was made does not evidence a likelihood that an express agreement existed, and to reason from this statement to that point requires a guess based on mere possibility: Such ■ an inference would be unreasonable. Finally, an inference would be unreasonable if it is reached through fallacious reasoning. For more than 2500 years, logicians have concerned themselves with sound and unsound means of reaching a truth. Over time, a number of fallacious arguments have been identified as not productive to learning the truth. One fallacy is called ad hoc ergo propter hoc (with this, therefore because of this); another is called hidden complexity. The inference urged from the prediction about competitors’ price actions relies on the first of these fallacies and suffers from the second. From the fact that the statement was made, it might be claimed that the cause must be that there is an express agreement, of which the speaker has knowledge, to fix prices. We also know that in the context of this case, however, there are a number of other factors which might have caused the statement to have been made; yet, they are not accounted or controlled for. In Daubert, the Supreme Court approved a gatekeeping function for the court in making admissibility determinations based inter alia on sound methodologies. So long as the testimony was deemed admissible, the court did not draw its own conclusions about the testimony. In this context, it likewise seems appropriate for the court to consider whether or not arguments are fallacious to determine whether inferences therefrom are allowable because fallacious reasoning is akin to unsound methodology. Keeping inferences reached only by logical fallacy from the jury is consistent with this understanding of the gatekeeper role of the court. Plaintiffs have resisted Defendants’ motions for summary judgment on the basis of parallel pricing and “plus factors.” Conscious parallelism and “plus factors” can be a formulistic expression which does not capture the reality of the case. A “plus factor,” therefore, needs to have some substance in order to tilt the balance. Merely labeling something a “plus factor” does not make it so, and a weak “plus factor” is not sufficient to withstand a motion for summary judgment because the “plus factor” analysis is really a surrogate for looking at a case in its entirety. It is well to say here that the distinct flavor of evidence before the court points to the absence of an agreement among Defendants and the presence of a great deal of uncertainty and anxiety about the future state of the market. See infra. The court also cautions that observers of this case need to know that unlike the usual case, one cannot place a great deal of faith in the fact that the probata will support the allegata. III. DISCUSSION A. Direct Evidence Before reviewing the circumstantial evidence presented by Plaintiffs, the court considers Plaintiffs’ allegation that they can show direct evidence that Defendants have engaged in illegal price fixing. Plaintiffs assert that in the 1990s, in response to health care lawsuits brought by various state attorneys general, Defendants conducted a joint defense and attempted to settle the cases. Plaintiffs describe a proposed settlement that would have required Congressional approval and had a provision that settlement costs be passed through to consumers as price increases. Plaintiffs further proffer that the settlement failed when Congressional approval was not received. Plaintiffs assert the mere fact that Defendants “discussed specific price increases in connection with the proposed Congressional Resolution,” Pis.’ ’Resp.7^t~2K is direct evidence of collusive behavior. The court disagrees. As an initial matter, it is likely that Defendants’ negotiations would be protected under the Noerr-Pennington doctrine. See A.D. Bedell Wholesale Co. v. Philip Morris, Inc., 263 F.3d 239 (3d Cir.2001) (holding that cigarette manufacturers were entitled to immunity under Noerr-Pennington for agreement settling tobacco tort litigation with numerous states). Furthermore, Plaintiffs’ own presentation of evidence belies any notion of collusion. Plaintiffs cite deposition testimony from Geoffrey Bible, Chairman and CEO of Philip Morris Companies. In a document sent to executives of other cigarette companies describing the type of final settlement agreement sought by the industry, Mr. Bible indicated that an agreement in principle had been reached to allocate payments according to market capitalization. . Mr. Bible then breaks down the annual payment of $15 billion into a price per pack charge of $0.60 for each of the companies. See Bible Depo., at 92, Ex. 2123. Such a payment methodology is akin to an excise tax, which is generally passed through to the customer, because it is based on the output level. See Elzinga Report, at 12. The document itself, however, reflects no price-fixing conspiracy, and Plaintiffs fail to associate it with any. As a whole, the statement merely provides a contextual understanding of the cost of the settlement on a per-pack basis. •In fact, Mr. Bible testified that he recalled the negotiating position of the state attorneys general to be that “any payments that were made to resolve the issues would be passed on in pricing because they [state attorneys general] wanted to see cigarettes priced higher to dissuade underage youth from buying cigarettes.” Bible Depo., at 87-88. Mr. Bible understood that in order to accommodate this negotiation demand, some kind of legislation would be required in order to provide antitrust immunity. Id. at 88. The calculation of the cents per pack increase, therefore, was in the context of those government-sanctioned settlement discussions, which ultimately failed. Id. at 92-93. Because these initial settlement provisions were never implemented, they cannot form the basis for direct evidence of a price-fixing conspiracy. Furthermore, Mr. Bible testified that once the subsequent M.S.A./Pittsburgh was reached without a provision for antitrust immunity, the companies ceased discussing prices in relation to the MSA. See id. at 93-94. Plaintiffs do not dispute Mr. Bible’s testimony, but rather assert that the “fix” was already in because of Mr. Bible’s previous comments concerning the costs of the settlement. As the court found above, however, this statement is not direct evidence of a price fixing agreement, particularly where it was made in the context of negotiating a global settlement that considered an option of antitrust immunity. Furthermore, the court finds it illogical that a statement made in 1997, four years after the initiation of the alleged conspiracy and related to a circumstance that could not have been anticipated in 1993, would be direct evidence of an alleged conspiracy engaged in by the companies since 1993. Moreover, even if the court were to determine that Mr. Bible’s statements could support an inference of conspiracy, direct evidence must be “explicit and requires no inferences to establish the proposition or conclusion being asserted.” In re Baby Food, 166 F.3d at 118. An analysis of Mr. Bible’s statements would require inferences' to establish the proposition Plaintiffs assert. Plaintiffs contend that they “were denied other discovery that may have provided additional direct evidence, such as Committee of Counsel notes; both because of-the Court’s discovery rulings and Defendants’ refusal to produce such documents.” Pis.’ Resp., at 27 n. 11. Plaintiffs do not point the court to any particular rulings which have allegedly prejudiced them. In fact, the court notes that at a discovery hearing on November 20, 2000, Defendants agreed to produce the information requested in Plaintiffs’ Interrogatory No.. 18 concerning the identity of persons who attended Committee of Counsel meetings. Plaintiffs accepted that resolution of the discovery dispute. See Transcript of Hearing, November 20, 2000, at 65-66. Plaintiffs also agreed that certain document production would pertain only to those employees with authority to. set price. Defendants averred that no one associated with thé Committee of Counsel had authority to set price. Plaintiffs accepted that proffer. Id. at 86-88. Defendants further agreed to respond to Plaintiffs’ Second Document Request Nos. 1 and 2, requesting any documents related to pricing discussions at the Committee of Counsel meetings.. The court has located no motions to compel filed by Plaintiffs arguing that Defendants refused to produce this discovery. Accordingly, the court concludes that Plaintiffs were not hampered in their search for direct evidence by the discovery rulings of the court. B. “Plus Factors” Because Plaintiffs have proffered no direct evidence of price-fixing, the court proceeds to an analysis of the circumstantial evidence. As described in Harcros, in order to survive a motion for summary judgment, Plaintiffs must first produce evidence that Defendants engaged in consciously parallel behavior. Then, Plaintiffs must show “plus factors” that “tend to exclude the possibility that the defendants merely were engaged in lawful conscious parallelism.” 158 F.3d at 572. Here, no party disputes that price increases between November 1993 and January 2000 reflect conscious parallelism. 1. Defining “Plus Factors” Plaintiffs assert eleven “plus factors” to support their claim that Defendants conspired to fix prices: (1) signaling of intentions; (2) permanent allocations programs; (3) monitoring of sales; (4) actions taken contrary to economic self-interest, including (a) little analysis of whether to follow price increases, (b) B & W and RJR pulling away from the discount cigarette market, (c) the May 1995 price increase lead by RJR and followed by Philip Morris, (d) Philip Morris’ agreement to base the initial M.S.A./Pittsburgh payments on market capitalization rather than market share, and (e) “excessive” price increases after the MSA; (5) nature of the market; (6) strong motivation; (7) reduction in the number of price tiers; (8) opportunities to conspire; (9) pricing decisions made at high levels; (10) the smoking and health conspiracy; and (11) foreign conspiracies. Although the court addresses each in turn, only the first four “plus factors” merit serious consideration. Before analyzing the “plus factors” presented by Plaintiffs, the court notes that at turns, Plaintiffs use the terms “plus factors” and “facilitating devices” interchangeably. This practice confuses the proper analysis because “facilitating devices” are not necessarily sufficient under the law to constitute a “plus factor.” Plaintiffs allege that industry-use of “facilitating practices” can increase the “likelihood of anticompetitive tacit coordination.” Pis.’ Resp., at 19. The court has found no case law, and Plaintiffs cite to none, which analyze the significance of “facilitating practices” as circumstantial evidence of price fixing in an oligopolistic market. In his antitrust treatise, late Professor Phillip E. Areeda states that a facilitating practice is “an activity that makes it easier for parties to coordinate price or other behavior in an anticompetitive way. It increases the likelihood of a consequence offensive to antitrust policy.” Phillip E. Areeda, Antitrust Law, ¶ 1407, at 29 (1st ed.1986) (hereinafter “Areeda”). He further notes, however, that “it will often be difficult to establish causation in fact from a facilitating practice.” Id., at 32. “Facilitating practices” are “not customarily listed in the cases as a ‘plus factor,’ [but they] bear on the economic consequences of oligopoly .... ” Id., ¶ 1434e, at 221. Significantly, Professor Areeda does not believe that facilitating practices should transform an otherwise immune oligopoly into a conspiracy. See id., ¶ 1436, at 248. As discussed below, the court finds this interchange particularly .significant when considering the testimony of Plaintiffs’ main expert, Dr. Fisher, and whether he offered testimony that distinguished conscious parallelism from illegal cartel behavior. In order to constitute a “plus factor,” an activity must “tend to exclude the possibility that the defendants merely were engaged in lawful conscious parallelism.” Harcros, 158 F.3d at 572. 2. Signaling Plaintiffs argue that (1) Defendants use signals to communicate with their competitors, (2) each Defendant knows its competitors monitor its signals, and (3) the signaling related to specific price increases. Specifically, Plaintiffs assert that each company would send a representative to its competitors’ analyst presentations so that each Defendant knew such “signals” would be received. Plaintiffs further argue that Defendants used Gary Black, a tobacco industry analyst, as the conduit for these signals because Mr. Black would report on these meetings and other events in the tobacco industry. In sum, the court finds Plaintiffs’ theory of signaling among the companies to be based on a combination of statements taken out of context, as well as ominous readings of typical industry reporting on strategy. To reach the inferences suggested would require the jury to engage in speculation and does not tend to exclude the possibility that Defendants acted independently. “Signaling” is a pejorative term as used in this context. Its import is either that a competitor is inviting all to make a traditional price-fixing agreement, or that there already" exists such an agreement and it is being carried out through indirect communications. Despite Plaintiffs’ use of the word and the infusion of their brief with colorful terms of “nods” and “olive branches,” Plaintiffs have done nothing moré than show that in an oligopoly, each company is aware of the others’ actions. This is the nature of the economic interdependence of the companies in an oligopoly. As Professor Areeda explained, in an oligopoly, “competing firms may be able to achieve cartel-like results for themselves simply by observing each other’s behavior”: Each firm’s pricing decision is interdependent with that of its rivals: each knows that his choice will affect the others, who are likely to respond, and that their responses will affect the profitability of his initial choice. Each knows that expanding his sales or lowering his price will reduce the sales of rivals, who will notice that fact, identify the cause, and probably respond with a matching price reduction. Unless he can somehow conceal his price reduction, or unless his own position is improved by a lower market price, he will hesitate to reduce prices at all. Areeda, ¶ 1410b, at 65 (emphasis in original) (footnote omitted); see also William A. McEachern, Economics: A Contemporary Introduction, at 523 (5th ed.2000) (in an oligopoly “[e]ach firm knows that any changes in its product quality, price, output, or advertising policy may prompt a reaction from its rivals. And each firm may react if another firm alters any of these features.”); In re Baby Food, 166 F.3d at 128 (“In an oligopoly consisting of no more than three companies at one time and collectively controlling almost the entire market, there is pricing structure in which each company is likely aware of the pricing of its competitors.”). .[24] Because. in competitive markets, particularly oligopolies, companies will monitor each other’s communications with the market in order to make their own strategic decisions, antitrust law permits such discussions even when they relate to pricing because the “dissemination of price information is not itself a per se violation of the Sherman Act.” United States v. Citizens & S. Nat’l Bank, 422 U.S. 86, 113, 95 S.Ct. 2099, 45 L.Ed.2d 41 (1975). In In re Baby Food, the court granted summary judgment for the defendants ■ despite the plaintiffs’ argument that the defendants had communicated about pricing information. There, the court determined that sales employees of one defendant were required to report to their superiors any competitive information they learned from other sales representatives in the industry. Id. at 118-19. Sales representatives often learned of their own company’s intention to increase prices before announcements were made. Thus, the court found, price information was systematically obtained and given to high level executives of each of the defendants, often before the pricing took effect. Nonetheless, the court granted summary judgment to the defendants because there was no evidence that these information exchanges had any effect on pricing decisions. Id. at 125. See also Blomkest Fertilizer, Inc. v. Potash Corp., 203 F.3d 1028, 1036 (8th Cir.2000) (“evidence that the alleged conspirators were aware of each other’s prices, before announcing their own prices, is nothing more than a restatement of conscious parallelism, which is not enough to show an antitrust conspiracy”); United States v. General Motors, 1974 Trade Cas. ¶ 75253 (E.D.Mich.1974) (“The public announcement of a pricing decision cannot be twisted into an invitation or signal to conspire; it is instead an economic reality to which all other competitors must react.”) (cited in Areeda, ¶ 1435, at 228). In contrast, the cases which have found that an inference of traditional agreement from indirect communications took place show far more detailed communications with no public purpose. See In re Medical X-Ray Film Antitrust Litigation, 946 F.Supp. 209, 213 (E.D.N.Y.1996) (noting companies exchanged internal competitive memos and citing specific testimony that representatives of Fuji and Agfa privately met to exchange pricing information); Petroleum Proceedings, 906 F.2d at 460-61 (noting that defendants exchanged Supply and demand forecasts and internal analy-ses documents were found in the files of competitors). Here, Plaintiffs have documented nothing reaching the level of prohibited exchanges, but rather have described the type of information companies legitimately convey to their shareholders. Furthermore, numerous courts have recognized the difficulty involved in using “signaling” to form an agreement to fix prices where list prices are not the prices paid by individual customers. See Brooke Group, 509 U.S. at 217-18, 236, 113 S.Ct. 2578; Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 53-54 (7th Cir.1992) (signals “would be, to put it mildly, an awkward facilitator of price collusion because the industry practice of providing discounts to individual customers ensured that list price did not reflect the actual transaction price” and rejecting plaintiffs claim that announcements of price increases thirty to sixty days in advance was evidence of collusion). Thus, Plaintiffs’ description of “signaling” does not make it any more likely that Defendants had an agreement to fix prices and it is not relevant. Plaintiffs first theorize that after issuing the “demand” of Marlboro Friday, Philip Morris waited to receive signals from the other Defendants that they would join the conspiracy. Plaintiffs contend that Philip Morris understood signaling because of their response to the introduction of the 99-cent cigarette category in 1992. Plaintiffs cite a 1992 document to show that Philip Morris “was well aware of the use that might be made of securities analysts to signal their competitors.” Pis.’ Resp., at 37. A full reading of this memo, however, shows that Philip Morris was looking to correct false reporting of a competitive strategy of retail rebates by sales people. Accordingly, Plaintiffs’ contention is without support in the record. In any event, setting aside whether the companies understood how to “signal” one another, the court notes that it is difficult for such allegations to support an inference of conspiracy. See Blomkest, 203 F.3d at 1037 (where the plaintiffs contended that defendants signaled pricing intentions by circulating advance price announcements, court concluded that such evidence did not support an inference of price fixing because the plaintiff “may not proceed by first assuming a conspiracy and then setting out to prove it” ... only “[i]f the [plaintiff] were to present independent evidence tending to exclude an inference that the [defendants] acted independently,” could the plaintiff use the signaling evidence for additional evidence of a conspiracy); In re Baby Food, 166 F.3d at 133 (“courts generally reject conspiracy claims that ‘seek to infer an agreement from ... communications despite a lack of independent evidence tending to show an agreement’ ”). Nevertheless, Plaintiffs assert Philip Morris “looked to the others to signal that they would play by the new rules.” Pis.’ Resp., at 39. Plaintiffs contend the “signals were not long in coming.” Id. As discussed below, however, the allegation of Marlboro Friday as “invitation to collude,” is not supported by the materials cited by Plaintiffs. Indeed, most of the incidents to which Plaintiffs refer occurred prior to the time Plaintiffs allege the conspiracy began — November 1993. Plaintiffs point to a statement made by BAT’s CEO and Deputy Chairman, Martin Broughton, to the Financial Times on April 13, 1993, and argue that this is a signal that B & W would accept Philip Morris’ “offer.” Mr. Broughton stated, “BAT may be one of those who started the price war in the U.S., but we have no wish to escalate it.” PMAT0300005506-5515, at 5510. As B & W points out, however, this excerpt is not the totality of Mr. Broughton’s comments. Mr. Broughton’s full comment was: “We may be one of those who started the price war, but we have no wish to escalate it. But we shall be ready to respond tactically where necessary.” B & W Mot. S.J., at 21; Ex. D-3. The rest of the interview also notes that Mr. Broughton was “perplexed” by Philip Morris’ tactics and that BAT “will wait to see what happens in the market before playing its own cards.” Id. No reasonable jury could infer that B & W agreed to any particular future course of conduct from the entirety of this statement. Incongruously, Plaintiffs argue that “industry understanding began to coalesce” after Philip Morris again cut its prices on July 20, 1993. Pis.’ Resp, at 40. Plaintiffs do not explain how an additional price cut by Philip Morris shows any previously existing industry-wide agreement to form a cartel to fix and raise prices. Yet some of the “signaling” contentions discussed by Plaintiffs are irrelevant unless such an agreement exists. Similarly, Mr. Black’s reporting of B & W CEO Thomas Sandefur’s comments at a September 1993 BAT analyst meeting, does not support Plaintiffs’ theory that Mr. Sandefur was signaling to Philip Morris that B & W would agree to Philip Morris’ “demand” and no longer compete on price terms. Mr. Sandefur stated: We believe that price cutting or discounting — while still a factor — will be less important than in the past. That’s because gaps in the list price have narrowed between premium and V-F-M [value for money] brands. Premium brands, therefore, should regain some strength. Over time, smaller price increases coupled with state and federal tax increases, will bring premium prices up once again. This will make V-F-M brands more appealing. But in the near term, value-for-money brands will need to compete on some basis other than price. And our company fully intends to pursue options other than price for ouir V-F-M brands. 588113496-573, at 511 (emphasis in original). This statement does not indicate that B & W will not compete on price. It explains that with Philip Morris narrowing the price gap and forcing a return to strength for premium brands, “in the near term,” discount brands would have to come up with another way to compete. This statement is anything but a commitment to abandon price competition, as Plaintiffs allege. It is, in fact, a declaration of an intent to do so if and when the prices of premium brands are increased. In their briefing and at oral argument, see Oral Argument, at 71, Plaintiffs then contend that Philip Morris looked to signal other companies. Plaintiffs’ citation for this proposition, however, is an October 25, 1993 internal Philip Morris document from Geoffrey Bible to W.I. Campbell. See PMAT000144681-684, at 683 (“All of the foregoing suggests a strategy of market share as opposed to profitability when in fact our current instincts are toward the latter, so why have I focused on share? Because I’m looking at fairly flat to modest share growth with the view towards caressing the competition into a ‘profitability’ mode.”). As described by the court above in discussing summary judgment standards, a hope by one company that it can create a disincentive for its competitors to engage in price competition to the detriment of profitability is not evidence of a collusive agreement to fix prices. Marlboro Friday taught a marketplace lesson that market share gains bought by discounting are not sustainable and that in the end, market share will be lost and profits severely shrunk if a strong competitor also engages in price cutting. Plaintiffs point to few events of “signaling” that occurred during the alleged conspiracy period. Plaintiffs proffer that RJR signaled it would accept Philip Morris’ “conditions for a price hike” on November 2, 1993, when RJR’s CEO and CFO met with industry analysts. Pis.’ Resp., at 44. However, Plaintiffs’ assertion that RJR’s CEO Charles M. Harper “was signaling that RJR would meet PM’s conditions for a price hike,” id., is without support. On November 2, 1993, Harper stated that RJR was going to focus on earnings growth and was “willing to accept modest market share losses as the cost of improving earnings.” PMAT3000005464-473, at 465. The whole objective of free enterprise is to earn a profit. This may be achieved by selling more units at a smaller profit or vice versa. Because of Philip Morris’ actions, RJR lost market share and, therefore, was left with but one realistic avenue to grow its profit: to raise prices. There is nothing ominous or collusive about this statement. It is typical of the statements made every day by corporate executives to industry analysts as a means of providing investors information on a company’s future strategic market-ings plans. The court notes, furthermore, that Plaintiffs premise their theory of “conditions for a price hike” on statements made by Mr. Black, not industry executives. As described below, however, Mr. Black could not have acted as a conduit for Defendants. Plaintiffs contend that Philip Morris’ “final signal” was an announcement on November 4, 1993, of allocation limits for wholesalers. Plaintiffs argue that this was an indication that Philip Morris intended to raise prices and was a “nod” to RJR that Philip Morris would agree to a price increase. Pis.’ Resp., at 46. A Philip Morris internal memo dated November 3, 1993, indicates a recommendation for a price increase as of December 15,1993 and a product allocation program effective November 5, 1993. The memo explains that “[announcing the allocation program in November should curtail speculative buying and allow PM-USA to exercise some control in setting year end inventories.” PM20451211128. There is nothing to suggest that Philip Morris is responding to RJR’s willingness to move to a profitability mode except the temporal proximity of the two announcements. A complete review of the memo makes two things certain. First, Philip Morris had no idea that its competitors would react to a price increase and, to that end, had a competitive contingency plan. Second, retail price actions were viewed by the manufacturers as a key part in competitive strategy. These varied concerns belie Plaintiffs’ theory of an agreed-upon conspiracy. Furthermore, at the time, industry analysts did not assume Philip Morris’ allocation program was an indicator of a price increase. See Dean Witter Report, November 8, 1993, PM2023769202 (specifically rejecting notion that allocation was a “near-term indication of a pending price increase” and noting “[i]t is our belief that [the allocation program] was driven by the behavior of wholesalers who were attempting to replenish inventories in order.to maximize cash flow and minimize taxes prior to the close of their fiscal year-end (most wholesalers’ fiscal year ends on November 30 or December 31”)); Prudential Securities Report, November 8, 1993, PM2023769205 (rejecting assumption of price increase and noting “[w]e believe that this mailgram was sent to appease troubled wholesalers who have been financially hurt by the price war’s price cuts that lowered the value of their inventories.”); Smith Barney Shearson Report, November 8, 1993, PM2023769208 (“[Wjhile this move by [Philip Morris] may indeed be the prelude to a general price hike it could also be just a method of reducing some excess inventory at the wholesale level”). Plaintiffs point to other documents to show that Philip Morris and RJR knew how to “signal” competitors. Geoffrey Bible’s notes for a meeting with Gary Black indicate, in response to a potential question about share gains by other companies, that “[w]e consider it healthy competition when Lorillard grows Newport, or B & W grows Kool or GPC through normal promotional activities. However, we consider it provocative if share gains are sought through continuous price promotion.” PMAT 000200976, Ex. 2119 to Bible Depo. As Mr. Bible testified, however, “to every action there’s a market or competitive reaction. And so you always try to weigh your actions to minimize competitive reaction.” Bible Depo., at 71. Mr. Bible’s statement is nothing more than a recognition that Philip Morris intended to protect its market share, an intention already made clear by its actions on Marlboro Friday. Remarkably, Plaintiffs assert that RJR learned the benefits of such market communication during a “war game” strategy session held in 1994 in response to Marlboro Friday. Such an event, however, belies Plaintiffs’ illegal collusion theory. If RJR understood that Philip Morris was making an offer, as Plaintiffs contend, RJR would not need to conduct strategy games to determine how to respond to Philip Morris’ overtures. See RJR 51962 5141-59, at 55-57. Thus,.RJR’s response does not reflect that RJR understood Marlboro Friday to be an “invitation to collude,” as Plaintiffs allege. See Pis.’ Resp., at 39-40. Plaintiffs portray the competitive event of Marlboro Friday as Philip Morris’ opening “gambit” in demanding that other companies “play 'by the new rules.” Pis.’ Resp., at 39. But Plaintiffs fail to recognize that Marlboro Friday created a new competitive framework in the industry. As the last feature of their signaling theory, Plaintiffs contend that Defendants used Black to “signal” on the following occasions: (1) in early October 1993, Black reported that Philip Morris and RJR removed coupons from their deep discount products and appeared willing to cede share to the “small players” at the low end; (2) Black predicted that for RJR to lead a price increase that Philip Morris would follow, the price increase would have to be for list prices of premium and discount by the same amount and the smaller companies would follow the increase on the deep discount brands; (3) Black reported that B & W would end most forms of discounting on-its low price brands; (4) Black reported a statement by B & W CEO, Thomas Sandefur, Jr., on September 30, 1993, that the company intended to “pursue options other than price”; (5) Black reported that RJR would focus on profits rather than share; and (6) that Philip Morris was switching to a “market share strategy.” Plaintiffs place great weight on the reporting of Mr. Black in developing their “signaling” theory. For Plaintiffs to survive summary judgment on this as a “plus factor,” there must be some evidence that one of the Defendants fed Mr. Black information that prices were about to rise, and it ought to appear that what he published could be relied on as a statement of intention from a conspirator. Throughout his deposition, however, Mr. Black repeatedly denied getting any “inside” information from the cigarette companies; rather, Mr. Black used primarily his sources in the wholesale and retail market, as well as publicly-available information to make his market predictions. See Black Depo., at 20 (“Most of my contact with the tobacco companies was with the investor relations folks, whose job it is to talk to