Full opinion text
ORDER SILVER, District Judge. This case presents a variety of complex antitrust and false advertising issues in dispute among the parties, all participants in the lightning protection system industry. On March 31, 2003, the Court issued preliminary rulings on a number of pending motions, and on May 2, 2003, the Court held a hearing and heard arguments on all pending motions, including those with preliminary rulings. This Order resolves all pending motions and supersedes all previous rulings on these motions. I. BACKGROUND A. Procedural Overview Plaintiffs are three manufacturers and distributors of lightning protections systems, Heary Brothers Lightning Protection Co., Inc. (“Heary Bros.”), Lightning Preventor of America, Inc. (“LPA”), and the National Lightning Protection Corp. (“NLPC”). In or about 2001, LPA was merged into and became a division of Heary Bros. (“Heary/LPA”). Heary October Aff. ¶ 2 [Doc. # 282], Heary/LPA manufactures and distributes two types of lightning protection systems: “conventional” systems (also known as “Faraday” or “Franklin” systems), and Early Stream Emission (“ESE”) systems. Heary Oct. Aff. ¶ 3. NLPC manufactures and distributes conventional systems, and also distributes an ESE system known as the Prevectron, which is manufactured by In-delec, a French-based company. Rapp Aff. ¶ 3 [Doc. # 283], Defendants are a number of other entities involved in the lightning protection industry. Defendant Lightning Protection Institute (“LPI”) is a not-for-profit corporation that functions as a trade association of manufacturers and distributors of lightning protection systems. Second Amended Compl. ¶ 9 [Doc. # 206]. Defendant Thompson Lightning Protection Inc. (“Thompson”) is a manufacturer - and distributor of lightning protection systems, and Defendant Allan Steffes (“Steffes”) is the Chairman, agent, and representative of Thompson. Sec. Am. Compl. ¶¶ 10-11. Defendant East Coast Lightning Equipment, Inc. (“East Coast”) is also a manufacturer and distributor of lightning protections systems. Sec. Am. Compl. ¶ 12. The President of East Coast, Charles Ack-erman (“Ackerman”) was originally named as a Defendant but was dismissed for lack of personal jurisdiction, though Plaintiffs continue to name him as a co-conspirator for purposes of the Sherman Act. Order of 12/4/97 [Doc. #75], Thompson manufactures and distributes both conventional and ESE systems, but East Coast manufactures only conventional systems of lightning protection. In its Second Amended Complaint, Plaintiff sues Defendants on a variety of counts. Count I alleges violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, against all Defendants. Count II alleges violations of Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), against Defendants Thompson, Steffes, and East Coast. Count III alleges common law claims for unfair competition, product defamation, and civil conspiracy against all Defendants. Count IV alleges common law interference with contractual relations against Defendant East Coast. In addition, East Coast has filed a Counterclaim against all Plaintiffs, alleging violations of Section 43(a) of the Lanham Act. As further explained below, Plaintiffs’ Sherman Act claim (Count I) and East Coast’s Lanham Act Counterclaim remain the key issues in dispute. B. Statement of Facts Plaintiffs’ Sherman Act claim centers around a meeting of the National Fire Protection Association in November 1993. The National Fire Protection Association (“NFPA”) promulgates a particular standard for the installation of lightning protection systems, NFPA 780. EC SSOF ¶ 3. The NFPA has maintained this standard, subject to some modifications and revisions, since 1904. DSOF ¶ 3. Lightning protection systems installed in conformance with NFPA 780, require a series of air terminals (commonly known as “lightning rods”) spaced out over defined intervals on the protected structure, in addition to a network of ground terminations, conducting cables, and surge suppression devices. EC SSOF ¶ 4. These lightning protection systems function when lightning strikes an air terminal, and the resulting charge is dispersed safely to the ground. EC SSOF ¶¶ 2, 5. Certain organizations, most prominently the Underwriters Laboratory (“UL”), certify that conventional lightning protection systems are installed in compliance with NFPA 780. EC SSOF ¶¶ 3, 6. ESE lightning protection systems are founded upon use of an ESE air terminal. According to its proponents, ESE air terminals function differently than conventional air terminals. The proponents of ESE terminals claim that ESEs produce greater levels of ionization at an earlier time before an imminent lightning strike than do conventional air terminals. The ionization results in a “upward streamer” which draws the lightning, such that it strikes the ESE terminal rather than any surrounding structure (hence, the name “Early Streamer Emission”). While conventional air terminals also produce “upward streamers,” ESE proponents claim that the early time advantage translates into a longer upward streamer, and that this length provides a greater “zone of protection” than would a conventional air terminal standing alone. Because ESE terminals allegedly provide an enhanced zone of protection, ESE systems require many less terminals than conventional systems, and smaller structures might require only a single terminal. ESE terminals themselves cost more than conventional terminals, but ESE systems are often cheaper than conventional systems, because less equipment may be required, depending on the size of the structure. EC SSOF ¶ 13. While ESE terminals can be installed in compliance with NFPA 780, the added cost of multiple ESE terminals would be considerably more expensive. Proponents claim that an ESE system, installed in a configuration not in compliance with NFPA 780, can protect more area than a conventional system installed in compliance with NFPA 780. On or about April 24, 1990, the Standards Council of the NFPA formed a technical committee (the “781 Committee”) to investigate lightning protections systems using ESE technology. DSOF ¶ 7. The 781 Committee was charged with determining whether the development of a standard for ESE systems was appropriate. DSOF ¶ 7. Both Kenneth Heary, of Plaintiff Heary Bros., and Robert Rapp (“Rapp”) of Plaintiff NLPC were members of the 781 Committee. DSOF ¶ 9. The 781 Committee drafted a proposed standard for the installation of ESE systems, known as the Draft or Proposed NFPA 781 Standard, which was circulated to the NFPA membership for commentary sometime in March or April 1993. DSOF ¶¶ 10-11. The NFPA received approximately 269 comments regarding the Draft NFPA 781, and these comments, together with the 781 Committee’s responses, were circulated to the NFPA’s membership pri- or to a general membership meeting on November 15-18, 1993 in Phoenix, Arizona. DSOF ¶¶ 12-13. On November 17, 1993, the general membership of the NFPA was scheduled to vote on the Technical Committee report regarding Proposed NFPA 781. DSOF ¶ 14. The membership vote could either adopt some or all of the report, or return some or all of the report to the Technical Committee for further study. DSOF ¶ 5. A membership vote to adopt the report would not have resulted in the immediate adoption of the NFPA 781 standard; rather, the Standards Council would make the final judgment whether to adopt the standard on the basis of “the entire record,” which included the vote taken at the NFPA general membership meeting. DSOF ¶ 6. On or before the scheduled vote of November 17, a number of individuals, including Charles Ackerman (“Ackerman”), President of East Coast, distributed handouts opposing the adoption of NFPA outside the hotel, in the lobby, and allegedly inside the meeting room. DSOF ¶ 15. Ackerman admitted in his deposition that he was told by some staff member of the NFPA to stop distributing the handouts. Although he testified that he believed that he had a right to hand them out in a public place, and that the NFPA “kind of drew a line and told us not to hand them out towards the entrance of the meeting hall or towards the door,” he also testified that he continued to distribute the handouts, saying “NFPA told us to stop. We didn’t stop.” Ackerman Dep. at 247-8, Exh. 6 to PSOF. David McAfee (“McAfee”), acting chairman of the 781 Committee, met with other members of the 781 Committee, including Ken Heary and Rapp, to discuss how to respond to the distribution of the handouts. PSOF ¶¶ 16-18. Based in part upon the advice of Andy O’Connor (“O’Connor”), who chaired the 781 Committee but who was unable to attend the meeting, the members of the 781 Committee reached a “consensus” that they would not dispute the handouts during the membership debate. PSOF ¶¶ 15, 19-23. McAfee met with a few officials of the NFPA, and discussed the handouts, before the November 17 vote. PSOF ¶¶ 24-30. On November 17, the NFPA 781 report came up for vote by the general membership, and, after a short debate, was voted to be returned to committee for further investigation. PSOF ¶¶ 33-35. William Heary, of Plaintiff Heary Bros., himself called the vote to return to Committee “overwhelming.” W. Heary Dep. at 86, Exh. 13 to PSOF. On December 7, 1993, Plaintiffs’ attorney Linda Joseph (“Joseph”), on behalf of Kenneth Heary, Frederick Heary, and LPA, filed a complaint with the Standards Council, requesting that the Standards Council reject the membership vote and issue NFPA 781. PSOF ¶ 45. On January 12, 1994, the Standards Council held a hearing regarding these complaints, at which Kenneth Heary, William Heary, and Rapp were afforded the opportunity to speak. PSOF ¶¶ 46-47. On January 26, 1994, the Standards Council issued its decision, finding that it “did not agree with the contention that the processing of the document on the floor of the Fall Meeting was inappropriate.” Exh. 17 to PSOF. It further concluded that “[t]here has been no serious claim, or has any evidence been presented, either that NFPA rules were not complied with, that the membership in attendance was in any way improperly stacked in opposition to the document, or that anyone was denied a fair opportunity to state their position or rebut that of their opponents.” Id. The Standards Council decided to defer further action until an independent third party review was conducted. Id. This decision was appealed to the Board of Directors of the NFPA, and was upheld. PSOF ¶¶ 56-59. Thereafter, the NFPA arranged for the National Institute of Science & Technology (“NIST”) to conduct an independent third-party review of ESE technology. PSOF ¶ 60. The Report of the NIST was drafted by Dr. Richard Van Brunt, who solicited comments from various interested parties, but who authored the Report on his own. PSOF ¶¶ 68, 71-76. The NIST Report concluded that “it is nearly impossible to make quantitatively meaningful statements or judgments about the about the performance of ESE devices in comparison to conventional Franklin rods.” Exh. 28 to PSOF, at 24. He also wrote that “the precise amount by which this [ESE] enhancement in streamer initiation improves the lightning attraction efficiency of an air terminal remains questionable. There is reason to doubt that it significantly extends the maximum range of protection.” Id. at 25. On July 18, 1995, the Standards Council held a hearing at which Dr. Van Brunt spoke, as well as various proponents and opponents of NFPA 781, including Rapp, William Heary, and Kenneth Heary. PSOF ¶¶ 83-87. The Standards Council then issued a decision in which it determined that there was insufficient technical evidence to justify adopting a new standard, and decided to disband the 781 Technical Committee. PSOF ¶¶ 88-90. The decision was appealed to an Appeals Subcommittee of the NFPA Board of Directors, who reviewed the entire record and upheld the decision of the Standards Council. PSOF ¶¶ 98-102. On December 20, 1996, Plaintiffs initiated this lawsuit, naming the NFPA as a Defendant. In October 1998, Plaintiffs settled with the NFPA, releasing them from all claims of liability in this action in exchange for a reconsideration of its decision to not issue NFPA 781. DSOF ¶¶ 105-7. The NFPA agreed to consider the results of an independent third-party investigation, conducted by a panel led by Dr. John Bryan (the “Bryan Panel”), into the scientific basis of ESE technology. DSOF ¶¶ 109-10. The Bryan Panel received input from both proponents and opponents of ESE technology, and issued its Report on September 1, 1999. DSOF ¶¶ 111-116. The Bryan Report was critical of the scientific basis for a standard for both ESE technology and conventional lightning protection systems. Exh. 38 to DSOF; DSOF ¶¶ 117-119, 122. On April 28, 2000, based upon the conclusions of the Bryan Report, the Standards Council again issued a decision not to adopt NFPA 781. Exh. 41 to DSOF; DSOF ¶ 126. The decision was appealed to an Appeals Subcommittee of the Standards Council, which affirmed the decision and dismissed the appeal on October 6, 2000. DSOF ¶¶ 134-38. In proceedings parallel to their attempt to convince the NFPA to issue 781, Plaintiffs launched an attack on the validity of NFPA 780 before the Standards Council, proposing that it be withdrawn for lack of supporting scientific evidence. Plaintiffs’ claim, throughout numerous proceedings before the NFPA, and before this Court as well, has been that the NFPA has applied disparate and discriminatory criteria in evaluating the supporting consensus of 780 and 781. Rapp’s initial request to withdraw 780, in 1995, was denied by the Standards Council. PSOF ¶¶ 92-96. However, five years later, after considering the conclusions of the Bryan Panel Report, the Standards Council announced its intention in 2000 to withdraw 780 unless proponents could provide “adequate substantiation” of its scientific validity. Exh. 43 to DSOF, at 24. ■ Thereafter, proponents of 780 submitted at least two documents in support of the scientific basis of NFPA 780: a report by a Federal Interagency Lightning Protection User Group (the “Interagency Report”) and a report by the Committee on Atmospheric and Space Electricity of the American Geophysical Union (“AGU Report”). On October 4, 2001, the NFPA issued a decision to retain NFPA 780, concluding that the Interagency Report “provides the minimum independent literature review and analysis that the Council was soliciting .. .’’ Exh. 53 to DSOF, at 1-2. In that decision, the Standards Council extensively discussed the relationship between NFPA 780 and 781, the scientific basis of ESE technology, and the Heary Brothers’ challenge to 780: The opponents of NFPA 780, and in particular the representative of the Heary Brothers ... have made a multitude of arguments attacking the reports, the ethics and the bias of the authors [of the Interagency Report], and the soundness of their conclusions.... The Council has reviewed all of these arguments [and found them unpersuasive].... The Hearys have explicitly tied their new-found opposition to NFPA 780 to the asserted unequal treatment accorded to ESE technology within the NFPA system .... Suffice it to say there has been no disparate treatment of ESE. The Council is well aware of its obligation to ensure that new products, services, or methods receive a fair hearing within the NFPA codes and standards development system. It is for this reason that the Council has given the subject of ESE lightning protection lengthy and, indeed, unprecedented consideration, even after the proposed standard for ESE failed to receive the support of the NFPA codes and standard development process.... The Council voted to decline to issue a standard for ESE lightning protection systems because it failed to receive the support of the NFPA codes and standards development system, and because, apart from the doubts about the technology that were reflected in that failure, two separate independent reviews of the technology, by the [NIST] and by the Bryan Panel, concluded that the claims of vastly superior performance of ESE terminals over conventional terminals simply had not been validated. In contrast, the Council has voted to continue its project on conventional lightning protection systems because NFPA 780 has repeatedly, unfailingly, and overwhelmingly received the support of the NFPA codes and standards development process.... No reasonable or credible arguments have been made to undermine these [independent reports and analyses] or to cause the Council .to question the conclusions of the scientists, engineers and safety experts who authored them. There has been no disparate treatment. Exh. 53 to DSOF, at 6-9. On May 8, 2002, the Appeals Subcommittee of the NFPA Board of Directors upheld the Standards Council decision. Exh. 54 to DSOF. II. PLAINTIFFS’ SHERMAN ACT CLAIM A. Legal Standard To establish a claim under Section 1 of the Sherman Act, Plaintiffs must show three elements: “(1) an agreement or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intend to harm or restrain competition; and (3) which actually injures competition.” Les Shockley Racing, Inc., v. National Hot Rod Ass’n, 884 F.2d 504, 507 (9th Cir.1989) (quoting Oltz v. St. Peter’s Comm. Hosp., 861 F.2d 1440, 1445 (9th Cir.1988)). The fact-finder must then apply a “rule of reason” analysis to determine if a challenged restraint is “unreasonable,” meaning that “the factfinder must weigh the anticompetitive effects and the procompetitive effects or business justifications advanced for the challenged restraint. ..” Id. at 507. “Although antitrust cases are sometimes difficult to resolve on summary judgment because of their factual complexity, summary judgment is still appropriate in certain cases.” County of Tuolumne v. Sonora Community Hosp., 236 F.3d 1148, 1154 (9th Cir.2001). The legal framework for this case begins with Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), a case which also involved manipulation of the standard-setting process of the NFPA. In Allied Tube, the original plaintiff, a seller of a new type of electrical conduit, initiated a proposal for certification by the NFPA of its type of electrical conduit to meet NFPA standards. The proposal was scheduled for a floor vote at the NFPA’s annual meeting. At that vote, the original defendant and other interests conspired to pack the meeting vote by, among other activities, recruiting 230 members to join the organization and paying their membership and travel expenses to attend the meeting solely to defeat the proposal. The proposal was defeated by four votes. Id. at 496-7, 108 S.Ct. 1931. At trial, the jury awarded damages for antitrust liability, and the case was appealed on the basis of whether the competitors had so-called Noerr immunity because the NFPA was akin to a legislative body. The Supreme Court, disclaiming that “we do not here set forth the rules of antitrust liability governing the standard-setting. process,” held that the defendants had no immunity from antitrust liability “flowing from the effect the standard has of its own force in the marketplace.” Allied Tube, 486 U.S. at 509-10, 108 S.Ct. 1931. The Supreme Court did not grant certiorari on the question of whether the defendant’s actions were actually illegal under the Sherman Act. Id. at 499, n. 3, 108 S.Ct. 1931. The Supreme Court in Allied Tube acknowledged that courts have applied a rule of reason analysis to the activities of 'private standard-setting organizations. “When ... private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling competition, those private standards can have significant procompetitive advantages. It is this potential for procompeti-tive benefits that has led most lower courts to apply rule-of-reason analysis to product standard-setting by private associations.” Allied Tube, 486 U.S. at 501, 108 S.Ct. 1931. For this reason, more extensively discussed in the Court’s July 1998 Order [Doc. # 135], the Court held that if Plaintiff could show that “Defendants conspired to prevent the issuance of an NFPA safety standard for ESE systems,” then “it is possible that Plaintiffs [would] be able to prove the existence of an implicit agreement to enforce the status quo,” thereby stating a claim under the Sherman Act. See Order [Doc. # 135] at 11-12. Defendants are only liable for unreasonable activities that cause antitrust activities, and the rule of reason has a particular application in standard-setting cases. In Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478 (1st Cir.1988), the First Circuit provided the framework for finding liability in an almost analogous case. In Clamp-All, the plaintiff alleged that its competitors, the defendants, had prevented a standard-setting organization from adopting a standard that would have bene-fitted the plaintiff. The First Circuit, in an opinion written by then Judge Breyer, held that “we do not see ■ how plaintiff could succeed on its antitrust claim unless (at a minimum) [defendants] both prevented [the standard-setting organization] from adopting a national performance standard that would have benefitted [plaintiff] and did so through the use of unfair, or improper practices or procedures.” Id. at 488 (emphasis in original). Only improper manipulation of the standard-setting process constitutes an unreasonable restraint of trade. Therefore, in order to determine liability, the Court must determine whether Defendant’s actions were “improper,” then determine whether a fact-finder could find that improper actions actually caused the alleged injury to competition. However, the Court must recognize that mere speech on behalf of or against a proposed standard cannot be held to be improper and unreasonable. Clamp-All, 851 F.2d at 488. As Clamp-All acknowledged, it is reasonable for groups to express their views and lobby on behalf of standards that benefit themselves. “Certi-fiers may reasonably believe that they can do their job properly (a job that benefits consumers) only if all interested parties are allowed to present proposals, frankly present their views, and vote.” Id. at 488. Different courts have taken different positions on whether speech that is merely false or misleading may constitute “improper” or unreasonable conduct that can form the basis of antitrust liability. For example, in Schachar v. American Academy of Ophthalmology, Inc., 870 F.2d 397 (7th Cir.1989), the Seventh Circuit considered a case where the speech of a trade association criticizing a certain procedure as “experimental”' was challenged as an unreasonable restraint of trade. The Court held that expression of an opinion, without a tangible ability to enforce conformity to its recommendations, does not unreasonably restrain trade. “If such statements should be false or misleading or incomplete or just plain mistaken, the remedy is not antitrust litigation but more speech — the marketplace of ideas.” Id. at 400. Although the Court in Schachar analyzed the effect of an organization’s speech on the market, in this case, the effect of the speech is even more attenuated; Defendants’ speech could serve only to persuade or dissuade other members of the NFPA. The counter to Defendants’ allegedly false and misleading speech is more speech, a response in which Plaintiffs concede they have vigorously engaged. Further courts have indicated that lies or misrepresentations may be sufficiently improper as to constitute a subversion of the standard-setting process. Merely to say that [quality] standards are disputable or have some market effects has not generally been enough to condemn them as ‘unreasonable’ under the Sherman Act.... [Something else or more extreme is generally present in the cases that have condemned quality standards as anticompetitive. In such cases, the principal concern has been the use of standards setting as a predatory device by some competitors to injure others; normally there is a showing that the standard was deliberately distorted by competitors of the injured party, sometimes through lies, bribes, or other improper forms of influence, in addition to a further showing of market foreclosure. DM Research, Inc. v. College of Amer. Pathologists, 170 F.3d 53, 57 (1st Cir.1999) (emphasis added). See also Steams Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 523 (5th Cir.1999) (“in the municipal bidding context, permissible competition is not restricted to the bid itself but can also occur in the process of ‘selling’ specifications and contract forms, when companies ‘tout the virtues’ of their product”). After a showing of improper means, Plaintiffs must show that Defendants’ improper actions were the but-for cause of the antitrust injury. See Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391, 401 (7th Cir.1993) (In establishing antitrust injury, courts must first delineate types of interest protected by antitrust laws and, second, must determine whether violation was cause-in-fact of injury — but for violation, injury would not have occurred); Chelson v. Oregonian Publ’g Co., 715 F.2d 1368, 1371 (9th Cir.1983) (If news dealers can show that they and newspaper publisher and would have reached an agreement “but for the actions” of a competing publisher, the dealers have established antitrust injury.). In this case, Defendants must show that Plaintiffs’ improper actions actually caused the NFPA to decide to reject NFPA 781. In Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 17 F.3d 295 (9th Cir.1994), the Ninth Circuit analyzed a similar case also with an intervening cause. In Sessions, the plaintiff petitioned a government agency to set a standard that would injure its competitor in the market. The Ninth Circuit found that the defendant was shielded by Noerr petitioning immunity because the damages were the result of government action. Id. at 299-300. Although Noerr immunity is not relevant in this case, the Court’s analysis of the causation involving a third-party standard-setting actor is highly instructive. To hold the defendant liable for injuries flowing from intervening government action (assuming no Noerr immunity), the Court held that “we would have to find that the restraint was imposed because of [defendant’s] petitioning efforts. Proof of causation would entail deconstructing the decision-making process to ascertain what factors prompted the various governmental bodies to erect the anti-competitive barriers at issue.” Id. at 300 (emphasis in original). Similarly, to find liability for Defendants’ actions lobbying the NFPA, a fact-finder must be able to conclude that the alleged restraint imposed by the third party, the NFPA, was imposed because of the improper lobbying efforts of Defendant. Further, the Ninth Circuit suggests that such proof must entail “deconstructing the decision-making process.” Id. Other Ninth Circuit precedent also imports a but-for causation test for antitrust liability. In Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 997 (9th Cir.1979), the Ninth Circuit held that, “[a]ccording to Brunswick [Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) ], plaintiff must show more than that it suffered injury causally linked to the antitrust violation; the injury must be shown to have ‘flowed’ from the wrong.... To be one of several causes is not enough.” Noting that the lower court gave a “proximate cause” or “substantial part” instruction on causation, the Court stated that it is “left in doubt whether the Brunswick test has been met” and reversed for error. Id. at 997; see Brunswick, 429 U.S. at 489, 97 S.Ct. 690 (holding that antitrust plaintiffs “must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which defendants’ acts unlawful”). See also Microbix Biosystems, Inc. v. BioWhittaker, Inc., 184 F.Supp.2d 434, 437 (D.Md.2000) (“[I]n the antitrust context ... Plaintiff has the burden of proving that the alleged illegal conduct was a substantial or materially contributing factor in its injury.... [E]vidence that is merely speculative will not satisfy this burden.”). A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. Summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322;, 106 S.Ct. 2548 see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Furthermore, the party opposing summary judgment “may not rest upon the mere allegations or denials of [the party’s] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1848, 89 L.Ed.2d 588 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also Rule 1.10(i)(l), Rules of Practice of the United States District Court for the District of Arizona (“Any party opposing a motion for summary judgment must ... set[] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.”). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely color-able or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. However, because “[credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the non-mov-ant is to be believed, and all justifiable inferences are to be drawn in his favor” at the summary judgment stage. Id. at 255, 106 S.Ct. 2505 (citing Adiekes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). B. But-for Causation On the issue of causation, Defendants have filed Motion for Summary Judgment: Lack of Proof of Causation [Doc. # 316]. Plaintiffs, in their Sherman Act Response Memorandum [Doc. # 309], describe the “gravaman” [sic] of their complaint as “the Defendants’ abuse of the standard-setting process resulted in a lack of ‘consensus’ for proposed NFPA 781 at the 1993 Phoenix meeting and thereafter manipulated the NFPA standard-setting process to maintain a ‘consensus’ for the retention of NFPA 780.” Id. at 17. Plaintiffs thus have two theories of causation: (1) that Defendants’ actions at the 1993 NFPA meetings directly caused a lack of consensus for 781, leading to the rejection of NFPA 781, and (2) Defendants manipulated this consensus to improperly convince the NFPA to retain NFPA 780. On this latter point, the Plaintiffs argue that “[b]ased on this ‘lack’ of consensus for NFPA 781 and the ‘consensus’ for NFPA 780 ... the NFPA thereafter imposed a greater standard of scientific and technical validity on ESE systems than was applied in deciding to retain NFPA 780, resulting in the anti-trust injury, whereby there is only one nationally recognized standard for lightning protection.” Id. , Under the framework of Clamp-All and Sessions, the Plaintiffs must show both that Defendants’ actions in regards to the NFPA’s standards-setting process were improper, and that the NFPA failed to issue 781 (or failed to repeal 780) because of Defendants’ improper actions. Clamp-All, 851 F.2d at 488; Sessions, 17 F.3d at 300. The analysis of Plaintiffs’ claim begins with whether Defendants’ actions in November 1993 were improper, and whether they were the but-for cause of the NFPA’s decision. (1) Were Defendants’ Actions Improper? Plaintiffs identify two sets of allegedly improper actions taken by Defendants at the 1993 NFPA meeting. First, Plaintiffs criticize the distribution of handouts before the general membership vote. Plaintiffs argue that the distribution of handouts was itself improper, and that the statements contained in the handouts were false or misleading. Second, Plaintiffs claim that various statements made by Defendants and their allies on the floor of the membership debate were false or misleading. (a) Handouts Plaintiffs initially contend that the distribution of handouts at the 1993 meeting was itself improper and greatly injured the consensus standard-setting process. They base their allegation on an NFPA Guideline (admittedly adopted after 1993) that the standard-setting process be “open, fair, and honest to all participants.” Exh. 31 to PSOF, at 11. It is unclear from the record evidence whether the distribution of handouts at the general membership meeting was against NFPA regulations. Plaintiffs assert, however, that this fact is irrelevant because the NFPA later changed its rules in response to the handout incident. Plaintiffs rely on Allied Tube, which noted that “[t]he antitrust validity of these [allegedly illegal] efforts is not established, without more, by petitioner’s literal compliance with the rules of the Association, for the hope of procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition.” Allied Tube, 486 U.S. at 509, 108 S.Ct. 1931. In Allied Tube, liability was supported by the fact that the NFPA changed its rules in response to the defendant’s actions, and the NFPA officially found that the defendant had “circumvented” NFPA rules. See Indian Head, Inc. v. Allied Tube & Conduit Corp., 817 F.2d 938, 947 (2d Cir.1987), aff'd, Allied Tube, 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497. Here, Plaintiffs provide some evidence that the handout distribution might have been improper. Arthur Cote, testifying on behalf of the NFPA, testified that “we, has [sic] a general rule, do not allow handout materials in the actual area where the meeting — where the votes are going to be taken.” Cote Dep. at 89-90, Exh. 34 to PSOF. Further, Cote described the prohibition as “a blanket prohibition regardless of content,” and stated that “NFPA has taken the position that we do not believe the process is enhanced by having additional materials presented for the membership at the time the committee reports are being debated.” Id. at 92. However, another witness, John Bryan, testified that the distribution of handouts was not against NFPA rules “at that time,” but that “after that incident, the Standards Council or somebody made a ruling that they could distribute materials outside the technical session room but not within the room.” Bryan Dep. at 183-4, Exh. 32 to PSOF. Finally, Defendants admit that Ackerman was told by someone at the NFPA to stop distributing the handouts but nevertheless continued to distribute them. Still, the evidence is not adequately persuasive that the handout distribution was sufficiently improper to support antitrust liability. Under NFPA rules in force in November 2001, materials distributed inside the meeting room must have prior approval by the Secretary of the Standards Council, and only NFPA members can distribute them. Exh. 35 to PSOF. There appears to be no regulation of distribution outside the meeting room or in advance of the meeting. Cote’s testimony on behalf of the NFPA does not indicate that handouts are an inherent threat to the process, only that they are procedurally disfavored by the NFPA. Cf. Indian Head, 817 F.2d at 947 (liability found where defendant “violated the integrity of the NFPA’s procedures” and “subverted the code making process”). Further, though the NFPA later changed the rules regarding handouts, they have also, as discussed in the next section, continued to assert that the membership vote was fairly conducted despite the handouts. The conclusion that the handout prohibition is primarily procedural is reinforced by the fact Defendants were free to inform members all of the information contained in the handouts. Certainly, the distribution of handouts does not, on its face, contravene the vague NFPA Guideline that the process be “open, fair, and honest to all participants.” Exh. 81 to PSOF, at 11. Ultimately, there is insufficient evidence that distribution of handouts, standing alone, so undermines the fairness of a standard-setting process such that it can form the basis for antitrust liability. Aside from the bare complaint that Defendants distributed the handouts, Plaintiffs contend that the information contained in the handouts was false and misleading. In their Sherman Act Response Memorandum [Doc. #309], Plaintiffs identify a range of statements that they claim are misleading. First, one handout contained the statement that “the NFPA Standards Council is so concerned about the makeup of this [781] Committee that they have commissioned an investigation.” Exh. 67 to PSOF. This statement is misleading because East Coast and Thompson challenged the balance of the makeup of the 781 Committee membership shortly before the November 1993 membership meeting, and the Standards Council was required to conduct an investigation regardless of the merits of the complaint. See Exh. 47 to PSOF at 5-6, 44 (Standards Council minutes of 10/14/93), Cote Dep. at 125. It appears that the membership of the 781 Committee was available in March 1993 and Defendants waited until October to register a challenge with the Standards Council. See Exh. 10 to DSOF (proposed Technical Committee Report listing members); Exh. 48 to PSOF (Larsen note dated 3/23/93 to Rison enclosing report). Therefore, the assertion that the Standards Council was concerned about the makeup of the committee and conducting an investigation was misleading, and misrepresented both the NFPA process and Defendants’ role therein. Next, the handouts state that “Document 781 contains nearly 50 new or changed paragraphs that have not been subjected to public review,” even though O’Connor (a 781 Committee member) testified at the October Standards Council meeting, at which Defendants’ representatives were present, that the changes were primarily the result of printing errors. Exh. 67 to PSOF; Exh. 47 to PSOF at 37-8, 42-3. This statement, while literally true, was potentially misleading. Next, the handouts indicated that the “American scientific community” opposed NFPA 781, yet only five scientists submitted official comments, and almost 80% of the scientific comments were submitted from two individuals, Dr. William Rison (“Rison”) and Prof. Charles Moore (“Moore”), the latter of whom had comments reviewed by LPI before submission. Dr. Rison and Prof. Moore are both researchers at the Langmuir Laboratories at New Mexico Institute of Mining and Technology (“New Mexico Tech”), that has received funding from Defendants to conduct research on lightning protections systems. Plaintiffs argue that Defendants should have disclosed that Rison and Moore had received research funding from Defendants, that Moore had his comments reviewed by LPI, and/or that New Mexico Tech received funding from Thompson for additional lightning research approximately six weeks after Moore submitted his comments. PSOF ¶¶ 105-116, 122-3, 164. However, Plaintiffs point to no requirement that Defendants affirmatively disclose any potential conflicts of interest of the scientists who made comments. Further, Plaintiffs had the opportunity to rebut the comments by showing a conflict of interest, and, in fact, Moore and Rison’s comments were distributed along with the 781 Committee report, in advance of the vote. Even if Defendants’ claims of the “American scientific community” were exaggerated (and Plaintiffs have not conclusively shown or established an issue of fact that they are), both Plaintiffs and the NFPA members knew of the comments of the scientists in advance of the meeting. Next, the handout claims that an ESE terminal failed testing conducted at New Mexico Tech, and “[ljightning struck within the claimed protected area.” Exh. 67 to PSOF. Plaintiffs argue that the handout failed to discuss the financial backing for the test, which was provided by Defendants, in furtherance of earlier litigation. PSOF ¶¶ 43, 175. Further, Plaintiffs dispute, for a variety of reasons, whether the tests were accurately conducted. PSOF ¶ 46. However, as Defendants point out in their motion to strike ¶ 46, Rison did not concede that he thought the experiment was flawed. Rison testified that he did not follow two instructions for installation, but he also thought the ESE terminals were “sufficiently grounded” to conduct testing. Rison Dep. at 23-24, Exh. 25 to PSOF. Plaintiffs present no evidence that Defendants were under an obligation to state the potential criticisms of the test, or whether or not they themselves commissioned the experiments. Plaintiffs were free to dispute the results of the test themselves. However, one handout comment indicating that “data about field tests were not presented to the Committee” may be .false or misleading, because Plaintiffs claim, without dispute, that the 781 Committee did review the results of the New Mexico Tech test. PSOF ¶¶ 96-7. Finally, Plaintiffs point out a number of statements in the handouts that are inconsistent with positions that many of the Defendants have taken at other times. These statements are not actually false or misleading; Defendants cannot be held liable for an antitrust violation for making inconsistent arguments unless there is proof that they intentionally did so. First, the handout says that the 781 Committee is “grossly out of balance” and provides a chart purporting to link the members together and expose their affiliations. Plaintiffs claim that East Coast should have disclosed that LPI encourages its own members to participate on the NFPA 780 Technical Committee to further their economic interests, and that LPI allegedly has control of the 780 Committee. PSOF ¶¶ 172-3. Defendants’ position is not misleading, even if they pursue similar strategies themselves in other contexts. Second, one handout criticizes the 781 Committee balance because the scientists on the Committee had backing from the lightning protection industry. However, East Coast has also taken the position, albeit in a letter written seven years later, that it is unrealistic to expect scientists on Technical Committees to operate independently of corporate sponsorship. Exh. 68 to PSOF. Again, this might be an inconsistent argument on East Coast’s part, but the statements about the affiliations of the scientists are not false or misleading. Third, one handout claims that ESE proponents “do not have a right to use a NFPA document as a marketing tool,” though East Coast and Thompson arguably do use the NFPA standard as a marketing tool. Exh. 67, 72, 78 to PSOF. This statement is not even inaccurate, since East Coast and Thompson do not claim a “right” to use NFPA approval as a marketing tool, even if they avail themselves of the opportunity. In sum, Plaintiff can identify, at most, three statements contained in the handouts that were potentially false or misleading, such that they might be “improper.” (b) Statements made on the floor at the meeting Plaintiffs also contend that some of the statements made during the debate were false and misleading. Many of these statements overlap with the allegedly false and misleading statements identified by the Plaintiffs in the handout. Plaintiffs object to Rison’s testimony about the New Mexico Tech lab results at the floor debate. Rison actually testified at the hearing that the New Mexico Tech tests “were conducted, one, by a law firm with regard to litigation. Another was requested by one of the opponents.” Exh. 77 to PSOF at 35-36. However, Plaintiffs object to his statement that experimental ESE device had been installed as recommended by the manufacturer, though he admitted in his deposition that he made two modifications to the installation. Exh. 77 to PSOF at 36; Rison Dep. at 23-24. The statement is arguably misleading. Plaintiffs’ other complaint is that Rison’s testimony was inconsistent with other opinions he has taken at later times regarding testing of lightning protection systems. PSOF ¶ 201. Again, arguably inconsistent positions taken a number of years apart are not analogous to false or misleading statements. Next, Plaintiffs complain that Ackerman claimed that the 781 standard was opposed by “the U.S. scientific community” and that the “Standards Council has established a task force to investigate the makeup of the committee.” Exh. 77 to PSOF at 21, 22. As discussed above, the first claim is an exaggeration at best for Plaintiffs’ proof. The second claim, as phrased by Ackerman at the meeting, is not actually false, though it may be misleading. Finally, Plaintiffs point to statements by A1 Steffes claiming that an ESE system installed at the Dolphin Hotel had failed, allegedly resulting in lightning striking the tail of a 60-foot-tall dolphin icon mounted on the building. Plaintiffs claim that Steffes was making misrepresentations, because Steffes had been present at the deposition of a representative of the building owner, James Nagy, who indicated that the owners originally filed a claim for lightning damage, but then did not challenge the determination of Heary Bros, and its “investigator,” Alex Chaberski (“Chaberski”), that the damage was due to an unexpected methane gas buildup. Nagy Dep. at 20-27, Exh. 79 to PSOF. Notwithstanding this testimony, Steffes had an adequate basis to support his thesis. As for personal knowledge, he stated that “I have been in the lightning business since the early 1970s and I know what lightning damage is. I viewed the Dolphin Icon. The structure was clearly struck with lightning-” Steffes Aff. ¶ 12 [Doc. #239]. Moreover, Chaberski later testified that he conducted no investigation of the dolphin icon, evaluated no physical evidence, and based his opinion entirely on Edwin Heary telling him (inaccurately) that there was no lightning storm when the dolphin exploded. Chaberski Dep. at 113-120, Exh. 1 to Steffes Aff. Thus, Steffes’s statements at the November meeting were, at best for Plaintiffs’ proof debatable, and not false or misleading. Even the misleading statements made during the floor debate do not necessarily constitute “improper” actions, because Plaintiffs had a full opportunity to rebut the allegations of the handouts and the arguments made during the floor debate at the time of the floor debate. Enigmatically, Plaintiffs, in fact, chose to remain silent throughout most of the proceedings. Rapp did speak in support of NFPA 781, and various other Heary Brothers participants testified that no one would have stopped them from speaking out at the meeting. See K. Heary Dep. at 475, Exh. 8 to DSOF. Though Plaintiffs now contend that the NFPA influenced their decision not to address the handouts explicitly, Plaintiffs’ evidence, at most, indicates that some of the 781 Committee members made a strategic decision not to address the handouts at the meeting. McAfee, the acting chair of the 781 Committee testified that he met with a number of NFPA representatives, but also testified that they gave him no instructions regarding what 781 Committee members should or should not say during the floor debate. See McAfee Dep. at 157-8, 221, Exh. 12 to DSOF. Frederick Heary and Rapp, through their affidavits, have contradicted McAf-ee’s testimony and insisted that they relied on assurances by the NFPA that the handouts would be investigated and remedial action would be taken. Defendants have moved to strike this evidence as hearsay. Rapp’s testimony, in ¶ 41 of his affidavit, is based on hearsay from unattributed sources. Rapp claims that the 781 Committee “was told that the NFPA was concerned ...” and “NFPA representatives advised the 781 Technical Committee members that ...” This evidence is admissible not for the truth, but only as evidence of Rapp’s state of mind concerning why he did not respond to the handouts at the meeting, not that the NFPA was actually concerned or actually planning to investigate the handout. Similarly, Frederick Heary’s affidavit, specifically ¶ 53, relies on McAfee’s statements about what McAfee was told by the NFPA, adding a second layer of inadmissible hearsay. Finally, a memo that McAfee later wrote describing the discussions with the NFPA, Exh. 75 to PSOF, is hearsay because offered for the truth, and is not admissible, as Plaintiffs contend, as a past recollection recorded, because McAfee testified in his deposition without the need to refresh his mind as to a present recollection of the NFPA meeting events. See Fed.R.Evid. 803(5) (hearsay admissible of “record concerning a matter which about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately”). McAfee’s testimony shows that the NFPA made no affirmative assurances or instructions to prevent the 781 Committee members from speaking at the floor debate. Indeed, all the evidence indicates that the silence of the Committee members was a strategic decision. PSOF ¶ 187. Having narrowed down the list of arguably improper conduct from Plaintiffs’ extensive litany of allegations, the Court must determine if any genuine issues of material fact exist to support a finding of but-for causation. (2) Were the allegedly improper acts the but-for cause of the failure to adopt NFPA 781? Plaintiffs have two critical links which they must make in order to prove but-for causation. First, they must show that Defendants’ actions at the November 1993 meetings actually changed the outcome of the membership vote. Second, they must show that the 1993 membership vote was the but-for cause of the Standards Council’s decision to not issue NFPA 781. Plaintiffs must show both of these links to establish causation. The Court concludes that Plaintiffs can not establish either. (a) Evidence from the November 1993 meeting Plaintiffs are without admissible evidence that the handouts or allegedly misleading arguments made at the membership meeting actually caused the membership to vote to send the 781 report back to the Technical Committee. As previously noted, William Heary conceded that the vote was “overwhelming.” W. Heary Dep. at 86, Exh. 18 to DSOF. The evidence that the flyers actually changed the outcome of the vote rests on pure speculation. For example, the extent of Edwin Heary’s “proof’ that Defendants influenced the outcome was “it seems to me they were successful in getting the people to vote it down; the firemen.” E. Heary Dep. at 91, Exh. 14 to DSOF (emphasis added). He conceded that he knew of no member who changed his or her vote because of the handout. Id. at 99, 109-110. William Heary also testified that he knew of no member whose vote was changed, and that “there was a large firemen’s contingency there, and they all wanted to move on to their business, and so they all voted in pretty much a block....” W. Heary Dep. at 87. Rapp testified that he talked to between three and ten members of the membership audience, but did not relate what any of them told him. Rapp Dep. at 87, Exh. 9 to DSOF. In Plaintiffs Statement of Facts, they do not point to a bit of evidence suggesting that the membership vote was changed because of the Defendants’ handouts and statements. See PSOF ¶¶ 208-209 (describing, without elaboration, movement of members in and out of meeting room). The extent of Plaintiffs’ argument is such: “Plaintiffs do not need to reconstruct the NFPA membership vote in Phoenix. A reasonable jury could find that the Defendants’ conduct was a substantial or [a] materially contributing factor to the NFPA membership’s vote based on the conduct of Defendants before the vote occurred.” Plaintiffs Resp. Memo. [Doc. # 309] at 66. Plaintiffs offer no case law to support the argument that a jury could infer causation from improper conduct alone, nor was the Court able to find any. For one, there is no record evidence of any causative effect at all, merely speculation by the Plaintiffs. Second, there are many other possible contributing factors, including the recorded objections to the 781 Committee report, as well as the lobbying and arguments made by Defendants before the vote that were not “improper.” Indeed, the crux of Defendants’ arguments against 781 is that the ESE technology simply does not work as claimed, an argument that even Plaintiffs do not dispute as “improper.” In short, Plaintiffs have no evidence that the allegedly improper acts influenced the vote at all, much less evidence to support that Defendants’ acts were the but-for cause of the vote. Notably, Allied Tube provides no support for Plaintiffs’ argument regarding causation, because in that case causation was not at issue. In Allied Tube, the lower court found conclusively that the membership-packing had led the outcome of the vote. In that case, the defendant had packed an NFPA meeting with around 280 members whose sole purpose was to defeat the proposed standard, and the standard failed by only four votes. Allied Tube, 486 U.S. at 496-7, 108 S.Ct. 1931. Furthermore, at the time of the Allied Tube vote, the NFPA membership vote would have resulted in the adoption of the standard, see Allied Tube, 486 U.S. at 496, 108 S.Ct. 1931, whereas approval by the membership of NFPA 781 in 1993 would have only sent the report to the Standards Council for further review. In Allied Tube, the critical causation links that Plaintiffs must prove were not at issue. As a final argument against Defendants’ summary judgment motion on causation, Plaintiffs argue that Defendants’ causation argument “essentially asks for antitrust immunity regardless of what misrepresentations they might make before an NFPA membership vote.” Plaintiff’s Resp. Memo. [Doc. # 309] at 66, n.21. In making this argument, Plaintiffs confuse an element of their cause of action with a potential affirmative defense. Plaintiffs bear the burden of showing that the alleged misrepresentations actually caused the change in the vote because causation is always an element of the antitrust claim. If Defendants prevail on the causation issue, it is not because they are “immune” from antitrust liability, but because Plaintiffs fail to meet their burden. Simply put, not every false statement made during a floor debate on a standard can form the basis of a Sherman Act claim; Plaintiffs’ obligations are the same as all litigants; they must show that the statements actually caused an antitrust injury. There is no such proof in this case. (b) Subsequent NFPA actions rejecting 781 Even if the Plaintiffs could show that Defendants’ improper conduct caused the outcome of the membership vote, they cannot show that the vote was the but-for cause of the Standards Council’s decision not to issue 781. As previously noted, a membership vote approving the Report in 1993 would only have had the effect of sending the 781 standard to the Standards Council, which makes the final decision. The Standards Council has repeatedly based its decision not to issue NFPA 781 on the lack of scientific consensus that ESE technology works at all. Plaintiffs contend that the lack of “consensus” surrounding NFPA 781 was based on Defendants’ improper actions at the 1993 meeting. In its 1994 decision regarding complaints about the 1993 meeting, the Standards Council concluded that “the overwhelming vote of the membership recommending the return of the document for further study indicates that the consensus necessary to issue the document has not yet been achieved.” Exh. 17 to PSOF. However, the Standards Council traced this lack of consensus to legitimate questions about the scientific underpinnings of ESE technology. “The Council further believes, based on its review of the entire record, that despite the sometimes contentious nature of the debate, the lack of consensus derives from genuine and legitimate questions on whether the early streamer emission technology has been adequately demonstrated to be effective.” Id. Therefore, the Standards Council concluded that the necessary consensus was not achieved because of legitimate scientific arguments that, under any interpretation, Defendants and other opponents of ESE technology were allowed to make without running afoul of antitrust liability. In fact, Arthur Cote, the Secretary of the Standards Council, testified that the 1993 membership vote had no bearing on the conclusions reached by the Standards Council not to issue the 781 standard. Cote Dep. at 193-4, Exh. 20 to DSOF. Further, after the 1994 decision, the NFPA commissioned the independent NIST Report, which was authored by Dr. Van Brunt. He also found a lack of scientific evidence that ESE terminals are more effective than conventional terminals. At a Standards Council hearing in 1995, Plaintiffs again had an opportunity to address the issues of scientific proof. The Standards Council again decided, in its 1995 decision, not to issue the 781 standard based on a lack of scientific or technical proof. After the NFPA reached a settlement in this lawsuit and examined the independent Bryan Report, the NFPA again declined to issue 781. In its most recent 2001 decision, the NFPA clarified that “[t]he Council voted to decline to issue a standard for ESE lightning protection systems because it failed to receive the support of the NFPA codes and standards development system, and because, apart from the doubts about the technology that were reflected in that failure, two separate independent reviews of the technology, by the [NIST] and by the Bryan Panel, concluded that the claims of vastly superior performance of ESE terminals over conventional terminals simply had not been validated.” Exh. 53 to DSOF, at 9 (emphasis added). This evidence shows that there are simply too many intervening causes to the Plaintiffs’ alleged antitrust injury. The NFPA has repeatedly decided, based on independent reports of lack of scientific proof, to not issue 781, and Defendants are not responsible for the NFPA’s actions. Plaintiffs’ responsive argument is that the NFPA claims to rely on “consensus” in making its decisions, and Defendants allegedly destroyed a “consensus” at the 1993 me