Full opinion text
ORDER GRANTING MOTION TO DISMISS; DENYING MOTION TO EXCLUDE; AND GRANTING SUMMARY JUDGMENT IN PART AND DENYING SUMMARY JUDGMENT IN PART PHYLLIS J. HAMILTON, District Judge. Defendants’ motion to dismiss, motion to exclude expert testimony, and motions for summary judgment came on for hearing on December 17, 2008 and January 21, 2009 before this court. Plaintiff Sun Microsystems, Inc. (“Sun” or “plaintiff’), appeared through its counsel, Kathryn D. Kirmayer, Jerome A. Murphy, David D. Cross, and Jeffrey Howard. Defendants appeared through their counsel, Paul Salvaty, Steven H. Bergman, Kenneth O’Rourke, Michael Tubach, Tim Martin, Julian Brew, Harrison Frahn, Howard Ullman, Catherine Lui, Jonathan Swartz, Robert Pringle, Joel Sanders, Joshua Hess, and Robert E. Freitas. Having read all the papers submitted and carefully considered the relevant legal authority, the court hereby GRANTS defendants’ motion to dismiss, DENIES defendants’ motion to exclude, and GRANTS the motions for summary judgment in part and DENIES the motions for summary judgment in part, for the reasons stated at the hearing, and as follows. BACKGROUND Plaintiff is part of the general opt-out category of cases that is related to In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, Case No. M 02-1486 PJH—a multidistrict litigation (“MDL”) action currently pending before the court. Both the MDL action and the opt-out cases generally allege a horizontal price-fixing conspiracy carried out by numerous DRAM manufacturer defendants, in violation of federal and state antitrust laws. While there are a total of six different individual cases that form a part of the opt-out category of cases, only Sun Microsystems, Inc. v. Hynix Semiconductor, et. al. is currently at issue. A. General Background Sun is an original equipment manufacturer (“OEM”) involved in the technology field. It is a leading maker of computer servers and workstations, among other items. In the operative amended consolidated complaint (“ACC”), Sun alleges that from 1997 through 2002 several manufacturer defendants (“defendants”) engaged in a conspiracy to control DRAM production capacity, raise DRAM prices, allocate customers, and otherwise unlawfully overcharge their DRAM customers. See, e.g., ACC ¶¶ 21, 23, 25, 27, 29, 31, & 34 (alleging that foreign defendants “manipulated the price of DRAM charged around the globe”). As a result, plaintiff alleges that, as a large purchaser of defendants’ DRAM, it suffered injury in that it paid more for DRAM than it otherwise would have in the absence of defendants’ conspiracy. To that end, Sun asserts three causes of action against defendants: (1) violation of the Sherman Act pursuant to 15 U.S.C. § 1; (2) violation of California’s Cartwright Act pursuant to §§ 16700 et seq. of the Cal. Bus. & Prof.Code; and (3) violation of California’s Unfair Competition Act pursuant to §§ 17200 et seq. of the Cal. Bus. & Prof.Code. See ACC, ¶¶ 79-106. Sun seeks damages as a result of the artificially inflated prices it allegedly paid for DRAM as a consequence of defendants’ alleged price-fixing activity. B. Facts Regarding Sun’s DRAM Procurement Sun manufactures and sells its servers and workstations both domestically and abroad. To aid in this process, Sun outsources a portion of its server and workstation assembly to a network of domestic and foreign entities comprised of (1) third-party external manufacturers and (2) Sun’s corporate subsidiaries. Of particular relevance here is Sun’s relationship with these two entity groups vis-a-vis a critical component of the manufacturing process — the purchase of DRAM on Sun’s behalf, for incorporation into final Sun products. 1. Third-party External Manufacturers The ACC alleges that approximately 34% of the DRAM purchases at issue here were made by third-party external manufacturers (“EMs”). See ACC ¶ 13b. The EMs were and are independent business entities located both domestically and abroad. See id. Sun does not share common ownership with any of the EMs; it does not own any controlling share of any EM, has none of the same board of directors or officers as any EM, and does not commingle funds or share corporate books and records with any EM. See Declaration of Angela M. Moore ISO MSJ re External Manuf. Purch. (“Moore Deck Re EMs”), Ex. 5 at 10; Bergman Deck, Ex. 2 at Response 5, Ex. 3 at Response 50, Ex. 4 at Responses 42-45. The EMs at issue in this case include, for example, Celestica, Solectron Corporation, MiTae International Corporation, Smart Modular Technologies, Inc., Benchmark Electronics, Inc., and Expansion Electronics, Inc. See, e.g., Declaration of Steven Bergman ISO Mot. Dismiss (“Bergman Deck”), Exs. 18-21. Sun charged the EMs, in part, with purchasing DRAM directly from defendants and other suppliers, in order to incorporate that DRAM into the manufacture of Sun-designed and Sun-branded products that were to be sold back to Sun (for retail sale by Sun). Sun’s relationship "with the relevant EMS was formalized in Master External Manufacturing Agreements (“MEMAs”). All the MEMAs at issue here have effective dates that post-date 1997. See Declaration of Jason M. Bussey (“Bussey Deck Re. EMs”), Ex. A; Moore Deck Re EMs, Exs. 24-26; see also Bergman Deck, Exs. 18-21. Pursuant to the terms of the ME-MAs, the EMs were considered “independent contractors” and were expressly prohibited from “actfing] in a manner which expresses or implies a relationship other than that of independent contractor, [or] bind[s] the other party.” Moore Deck Re EMs, Exs. 24, ¶ 8.5; Ex. 25, ¶ 8.5; Ex. 26, ¶ 26.3; Bussey Deck Re. EMs, Ex. A, ¶ 28.4. Sun’s relationship with its EMs was multi-tiered. As an initial matter, once an EM executed a MEMA with Sun, Sun’s practice was to issue an award letter to the EM. See Moore Deck Re EMs, Ex. 7 at 61, 76-77. The award letter set the price at which Sun would buy a particular DRAM-containing product from the EM, and identified quality standards for the product. See id. Subsequently, Sun also communicated its supply plan to the EM, informing the EM how much demand for DRAM-containing products Sun forecasted in the coming quarters. See Moore Deck Re EMs, Ex. 7 at 76. Notably, however, Sun’s forecast was fluid and was frequently updated. Sun also did not commit to actually purchasing a set quantity of DRAM-containing products in its forecasts, nor did it always end up purchasing all products forecasted. See id. at 82-83. After receiving Sun’s supply forecasts, EMs then purchased DRAM from suppliers in order to meet the demand forecast-ed in the supply plan. Id. at 76-77. As part of this process, Sun would preliminarily generally determine which DRAM suppliers were qualified to sell DRAM to the EMs for use in Sun products, and would furthermore generally negotiate DRAM pricing between the EMs and DRAM suppliers. See Declaration of David C. Cross ISO EM Opp. (“Cross EM Opp. Deck”), Ex. 26 at 160; Ex. 27 at 128-29; Ex. 22 at 82-83, 613; Ex. 28 at 62-64; Ex. 29 at 119-122, 124 (generally discussing Sun’s creation of an approved vendor list for use by the EMs). Sun’s global memory procurement team in California, for example, dictated a single worldwide price at which the EMs were permitted to order DRAM from DRAM suppliers for incorporation into Sun products, and further awarded a specific share of business to each DRAM supplier. See Cross EM Opp. Decl., Ex 29 at 28-29, 134-35; Ex. 30 at 125-26; Ex. 28 at 71-72; Ex. 31 at 57-58. Each EM would then be told from whom, at what price, and at which percentage of business they should issue purchase orders for the DRAM to be used in Sun products. See, e.g., Cross EM Opp. Decl., Ex. 32 at 45-50; Ex. 29 at 28-29, 134-45; Ex. 30 at 125-26. In some instances, Sun even required the EMs to purchase DRAM from Sun’s own inventory. See Cross EM Opp. Decl., Exs. 37-39. Either way, however, the EMs were expected to, and generally did, execute purchase orders for DRAM pursuant to the directions provided by Sun. See, e.g., id. at Ex. 24 at 61; Ex. 53; Ex. 54 at 111— 112. Nonetheless, there is evidence that at times, some of the EMs independently selected DRAM suppliers from whom to purchase DRAM, and independently negotiated DRAM pricing with those DRAM suppliers. See, e.g., Moore Decl. Re EMs, Ex. 7 at 206-09 (MiTac); Ex. 13 at 116-18 (Celestica); Ex. 21 (MiTac); see also Bergman Decl., Ex. 9 at 216-21; Ex. 21 at SUN001236; Ex. 31. After DRAM pricing and suppliers were determined — either by Sun, or the EMs acting independently — the EMs procured the DRAM. The EMs did so by: issuing purchase orders; receiving invoices issued by the DRAM suppliers; paying the invoices sent to them by the DRAM suppliers; and taking receipt of the actual DRAM purchased from the suppliers. See Moore Decl. Re EMs, Ex. 7 at 87; Ex. 13 at 45^6; Ex. 8 at 60-62; Ex. 5 at 10:22-13:1. After accepting delivery of the DRAM from the defendant suppliers, the EMs took title to it. See id. at Ex. 9 at 610-11; Ex. 8 at 66, 72; Ex. 13 at 47; Ex. 14 at 114; Ex. 12 at 32-33, 55-56. The EMs generally retained title until Sun accepted an assembled DRAM-containing product from the EMs. As some of the EMs testified, as a result of taking title, the EMs accepted the risk of loss and damage to the DRAM, and would bear the cost of replacement for damaged DRAM. See id. at Ex. 7 at 117; Ex. 9 at 610-11; Ex. 13 at 69-74, 77-78. As for the DRAM that was delivered to, but not ultimately used by the EMs (as a result of a change in Sun’s forecasts or the end of life of a particular Sun product, for example), the EMs often made efforts to return the excess to DRAM suppliers or to transfer it to another of Sun’s EMs at Sun’s direction. However, if these efforts were unsuccessful, Sun generally bore the cost of this DRAM and bought it back from the EMs. See id. at Ex. 28 at 53-54; Ex. 29 at 74, 94; Ex. 65 at 38-39; Ex. 30 at 34-35, 79-80, 90-94. The EMs were not permitted to sell excess DRAM to third parties without prior approval from Sun. Id. at Ex. 28 at 54; Ex. 29 at 76-77, 191-92. Finally, having purchased DRAM from DRAM suppliers for use in the manufacture of DRAM-containing products on Sun’s behalf, the last step of the distribution chain involved a downstream transaction in which Sun purchased the finished DRAM-containing products from the EMs. To do so, Sun issued purchase orders for products on a quarterly or semi-quarterly basis. Sun purchased DRAM-containing products from the EMs at cost plus a percentage markup. See id. at Ex. 7 at 217-18; see also ACC ¶¶ 13a-b. 2. Sun’s Foreign Subsidiaries The ACC alleges that approximately 66% of the DRAM used by Sun in its finished products was purchased by and delivered to Sun’s own manufacturing facilities located in the United States and abroad. See ACC ¶ 13a. Sun further alleges that 25% of this DRAM was delivered to and purchased specifically by Sun’s foreign manufacturing facilities located in Europe — primarily Sun Microsystems Scotland (“Sun Scotland”), which manufactures servers and workstations in Linlithgow, Scotland, and Sun Microsystems International B.V. (“Sun Netherlands”), which distributes and markets Sun servers and workstations in Europe and other foreign markets. See id. Sun Scotland and Sun Netherlands are indirect, wholly owned subsidiaries of Sun. The subsidiaries do not share the identical board of directors and officers with Sun, although they do have some common directors and officers. See Bergman Deck, Ex. 4 at Responses 4-5, 23-25. Nor do Sun’s directors form a majority of the subsidiaries’ boards of directors. See id. at Responses 6, 26. The procurement process vis-a-vis Sun’s foreign subsidiaries largely paralleled that of the third-party external manufacturers. As with the external manufacturers, for example, Sun’s global procurement team based in California established a single worldwide price at which the subsidiaries were permitted to order DRAM from DRAM suppliers, for delivery in turn to Sun’s subsidiaries. See generally Declaration of David C. Cross ISO FTAIA Opp. (“Cross FTAIA Opp. Deck”), Ex. 3. Speeifically, Sun’s global procurement team utilized face-to-face negotiations, live auctions called Dynamic Bidding Events (“DBEs”), and sealed bidding events in order to establish the worldwide DRAM price and choose those DRAM suppliers from whom Sun’s subsidiaries then purchased DRAM for use in manufacturing Sun products. See Cross FTAIA Opp. Deck, Ex. 5 at 21-23, 28-29, 31, 47-48, 50. After DRAM pricing and supplier determinations had been made, and in purchasing DRAM from approved suppliers (many of whom were European entities) pursuant to the worldwide price, Sun Scotland and Sun Netherlands also issued their own purchase orders to suppliers; took delivery of DRAM from the suppliers; were directly invoiced for the DRAM; and settled and/or paid the invoices from the suppliers. See Bergman Deck, Ex. 4 at Responses 16, 35; Ex. 5 at Responses 17-19, 36-38. However, when issues arose with DRAM purchased by Sun’s foreign subsidiaries or with respect to the subsidiaries’ relationships with suppliers, the California-based global procurement team generally addressed those issues. See, e.g., Cross FTAIA Opp. Deck, Exs. 10-11; see also id., Ex. 3 at ¶ 8. There is evidence that the DRAM purchases made by Sun’s foreign subsidiaries were used in the manufacture of finished Sun products at Sun’s foreign facilities, which products were in turn sold to customers in Europe and elsewhere. See, e.g., Bergman Deck, Ex. 7 at 23-24 (discussing manufacture and sale of DRAM-containing Sun products at Sun Scotland). C. Procedural Case History To date, the court has had occasion to rule on two separate motions to dismiss in this case. First, on March 7, 2007, the court heard defendants’ motion to dismiss certain claims asserted in the original consolidated complaint in the Sun action, on grounds that the court lacked subject matter jurisdiction. Specifically, defendants had moved to dismiss plaintiffs claims to the extent they were based on foreign DRAM purchases made by Sun’s external manufacturers and foreign affiliates on Sun’s behalf, arguing that such claims were premised on unrecoverable foreign injury only. The court granted defendants’ motion to dismiss, but because of the complaint’s lack of clarity with respect to the nature of any claims based on foreign DRAM purchases, granted Sun leave to amend in order to set forth allegations that provided greater clarity and specificity with respect to that portion of plaintiffs’ claims allegedly based on foreign harm, as distinct from that portion based on domestic harm. Plaintiff filed the amended consolidated complaint on May 4, 2007, and subsequent to that filing, defendants moved a second time to dismiss plaintiff Sun’s claims to the extent based on foreign DRAM purchases. On October 15, 2007, the court denied defendants’ motion without prejudice. The court found that the Foreign Trade Antitrust Improvement Act (“FTAIA”), which precludes application of the Sherman Act to wholly foreign conduct, was applicable to defendants’ foreign price-fixing conduct, as alleged. See Order Denying Two Motions to Dismiss and Deferring Ruling on One Motion to Dismiss (“Dismissal Order”), 534 F.Supp.2d 1101, 1109-10 (N.D.Cal.2007). Having so found, however, the court noted that the relevant question in this case was not really whether the general rule excluding the Sherman Act’s reach over wholly foreign conduct applies, but rather whether the foreign conduct falls within the domestic injury exception to the general rule, such that subject matter jurisdiction may be properly exercised under the FTAIA. See id. This question in turn depended upon whether defendants’ foreign conduct (1) had a direct, substantial and reasonably foreseeable effect on domestic commerce; and (2) whether that effect gave rise to a Sherman Act claim. Id. The court found that plaintiff had sufficiently established the first of these two elements, by virtue of the ACC’s allegations. that defendants’ foreign price-fixing activity led to “higher prices for DRAM in the United States, which in turn formed the predicate for plaintiffs’ domestic agreements to pay higher prices for DRAM.” See Dismissal Order, 534 F.Supp.2d at 1113. As to the second and final element, however, the court was unpersuaded. After noting that plaintiff was required to allege proximate causation in order to establish the requisite nexus between domestic effect and foreign injury in order to satisfy the second domestic injury exception prong, the court found plaintiff fell short of the mark by arguing that its global procurement strategy (which set a single global price for DRAM) satisfied the proximate cause test. Instead of dismissing plaintiffs claims outright for lack of subject matter jurisdiction, however, the court noted that plaintiff had made an alternative argument that warranted further development. Specifically, Sun had argued that, to the extent some of its own foreign facilities, subsidiaries and affiliates had made the foreign DRAM purchases at issue, such purchases were tantamount to Sun’s own purchases under a “single enterprise” or agency theory, and Sun stood in those subsidiaries’ shoes for purposes of raising their claims. While the court was unable to determine the validity of any such theory on the motion before it, the court stated that “if plaintiffs can articulate and prove a legal theory that would permit the court to find that they stand in the shoes of or are the alter ego of their foreign affiliates as well as a factual basis for such a claim, the court would be permitted to find that proximate cause under the FTAIA is necessarily satisfied, and that jurisdiction exists.” See id. at 1116. To that end, the court denied defendants’ motion to dismiss without prejudice to defendants’ ability to raise the same arguments again “after an appropriate amount of discovery” had been taken to enable both sides to fully develop their arguments. Id. D. The Instant Motions Now several months later, discovery has closed and defendants are back before the court having filed seven different motions for resolution, the majority of them dis-positive: (1) a motion for partial summary judgment as to Sun’s claims based on purchases made by Sun’s external manufacturers; (2) a renewed motion to dismiss certain of Sun’s claims for lack of subject matter jurisdiction, to the extent based on foreign DRAM purchases; (3) a motion for summary judgment as to Sun’s claims based on purchases of DRAM from defendant Mitsubishi entities; (4) an omnibus motion for summary judgment or in the alternative, for summary adjudication; (5) a motion to exclude the expert testimony of plaintiffs expert, Dr. Halbert White; (6) defendant Nanya Technology Corporation’s (“NTC”) motion for summary judgment on the basis that plaintiff cannot establish a triable issue of fact as to the entities’ participation in any overarching price-fixing conspiracy; and (7) defendant Nanya Technology Corporation USA’s (“NTC USA”) analogous motion on the basis that plaintiff cannot establish a triable issue of fact as to NTC USA’s participation in any overarching price-fixing conspiracy. The parties have also filed numerous evidentiary objections, and requests for judicial notice. Each of the relevant motions is dealt with in turn below. DISCUSSION A. Legal Standards 1. Summary Judgment As a general matter, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the facts in the light most favorable to the non-moving party and give it the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Where, as here, concerted price-fixing is alleged, the' plaintiffs bear the ultimate burden of presenting sufficient evidence to prove that an agreement to fix prices existed. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1093 (9th Cir.1999) (noting that price-fixing is a per se violation of section 1 of the Sherman Act). In order for them to survive defendants’ motion for summary judgment, therefore, plaintiffs must establish that there is a genuine issue of material fact as to whether defendants entered into an illegal conspiracy that caused respondents to suffer a cognizable injury. See Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. Plaintiffs can establish a genuine issue of material fact by producing either direct evidence that defendants participated in an agreement to fix prices, or circumstantial evidence from which a reasonable fact finder could conclude the same. See, e.g., Movie 1 & 2 v. United Artists Commc’ns, 909 F.2d 1245, 1251-52 (9th Cir.1990); United States v. Gen. Motors Corp., 384 U.S. 127, 142-43, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). With respect to proof by way of circumstantial evidence in section 1 cases, special rules apply. In Matsushita Elec. Indus. Co., the Supreme Court noted that “antitrust law limits the range of permissible inferences from ambiguous evidence in a [section 1] case ... ”. See 475 U.S. at 588, 106 S.Ct. 1348. In addressing plaintiffs burden in proving that an issue of material fact exists on the conspiracy question, the court stated, “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy ... ”. See id. In sum, to survive a motion for summary judgment, “a plaintiff seeking damages for a violation of [section] 1 must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently ....” Id. The Ninth Circuit has embraced Matsushita and has outlined a two-part test to be applied whenever a plaintiff rests its ease entirely on circumstantial evidence. First, the defendant can rebut an allegation of conspiracy by showing a plausible and justifiable reason for its conduct that is consistent with proper business practice. Second, the burden then “shifts back to the plaintiff to provide specific evidence tending to show that the defendant was not engaging in permissible competitive behavior.” See, e.g., In re Citric Acid Litig., 191 F.3d at 1094. These standards apply here, to the extent that plaintiffs seek to defeat summary judgment as to liability for conspiratorial conduct on the basis of circumstantial evidence, whether in whole or in part. 2. Motion to Dismiss In evaluating a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See, e.g., Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000) (citations omitted). In order to survive a dismissal motion, however, a plaintiff must allege facts that are enough to raise his/her right to relief “above the speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). While the complaint “does not need detailed factual allegations,” it is nonetheless “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. In short, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face,” not just conceivable. Twombly, 127 S.Ct. at 1974. With the above collective standards in mind, the court now turns to the numerous motions before it, and addresses each in turn. B. Motion for Summary Judgment re External Manufacturer Purchases Generally, Sun seeks recovery for defendants’ alleged Sherman Act violations based not only on the DRAM it purchased and had delivered, but also based on the DRAM delivered to and purchased in the first instance by its foreign subsidiaries and third-party external manufacturers. By way of the instant motion, defendants challenge only those claims based on the external manufacturers’ DRAM purchases. Defendants note that the external manufacturera initially paid defendant suppliers directly for their DRAM purchases, and argue that this made plaintiff an indirect purchaser of DRAM vis-a-vis those purchases. Thus, plaintiffs claims for recovery, to the extent based on the external manufacturers’ DRAM purchases, are barred by the direct purchaser rule of Illinois Brick v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Sun defends its ability to assert such claims on grounds that it has established an agency relationship with the external manufacturers that gives Sun direct purchaser status in connection with all external manufacturer DRAM purchases, notwithstanding the external manufacturers’ actual payment of DRAM prices to the defendants. Even if the court does not deem Sun a direct purchaser by virtue of the agency relationship between Sun and its external manufacturers, plaintiff maintains that it nonetheless satisfies the ‘control’ exception to the direct purchaser rule recognized in Illinois Brick, thus warranting denial of defendants’ motion. The issues for the court to decide are accordingly two-fold: first, whether Sun qualifies as a direct purchaser of the DRAM purchased from defendants by the external manufacturers, 'such that its claims based on those purchases may go forward under Illinois Brick. Second, and in the event Sun does not qualify as a direct purchaser, whether Sun’s claims may nonetheless go forward pursuant to the ‘control exception’ recognized under Illinois Brick. 1. Whether Sun Qualifies as a Direct Purchaser The direct purchaser rule is well-established. See, e.g., Illinois Brick, 431 U.S. 720, 97 S.Ct. 2061. In Illinois Brick, plaintiffs were indirect purchasers who sought to convince the court that they had antitrust standing to sue under federal antitrust laws because the illegal overcharge that resulted from defendants’ antitrust conspiracy had been passed on to the indirect purchaser plaintiffs by middlemen further upstream. The Supreme Court, however, consistent with its earlier holding in Hanover Shoe, held that indirect purchasers are too remote to suffer true “antitrust injury,” and therefore do not have standing under federal antitrust law to pursue claims. In reaching its conclusion, the court expressed concerns with the complexity of proof involved in any contrary rule, the purpose of the antitrust laws, and risk of multiple liability for defendants if such a rule were not adopted. See id. at 731-35, 97 S.Ct. 2061. Defendants’ first and primary argument urges a straightforward application of the direct purchaser rule to the case at bar. They argue that, since the DRAM delivered to the external manufacturers — both domestically and abroad — was paid for in the first instance by the external manufacturers, even if on Sun’s ultimate behalf, it is the external manufacturers rather than Sun who qualify as true direct purchasers capable of asserting claims premised on those purchases. For support, they rely on the Ninth Circuit’s recent decision in Delaware Valley Surgical Supply Inc. v. Johnson & Johnson, asserting that it firmly rejects any contrary argument. Defendants’ position on this point is well taken, and their reliance on Delaware Valley warranted. In Delaware Valley, the Ninth Circuit considered whether a plaintiff hospital had standing to bring a Sherman Act claim against a defendant manufacturer engaged in the provision of sutures and endomechanical products for use in laparoscopic surgery. See 523 F.3d 1116, 1118 (9th Cir.2008). The pertinent facts of the case are as follows: plaintiff was a member of a group purchasing organization (“GPO”) that negotiated a master agreement with defendant on plaintiffs behalf that set fixed pricing options for all sutures and endomechanical products. See id. Plaintiff then executed its own contract with defendant pursuant to the terms of the master agreement, which individual contract allowed plaintiff to purchase products either directly from defendant, or else from an authorized distributor of defendant’s products. Id. at 1119. Plaintiff chose the latter option, and entered into yet another contract with a distributor, pursuant to which plaintiff procured defendant’s products under the specified terms. Plaintiff purchased defendant’s products directly from the distributor; it did not pay defendant directly for any products, nor did defendant ship any goods directly to plaintiff. Id. In considering the same direct purchaser rule at issue here, the Ninth Circuit there squarely rejected plaintiffs argument that it could be classified as a direct purchaser of goods from defendant, instead finding plaintiff to be an in direct purchaser that lacked standing to sue under the federal antitrust laws. See Delaware Valley, 523 F.3d at 1122. The Ninth Circuit reasoned: “It is undisputed that [the distributor] was the immediate purchaser of sutures and endo products from [defendant], [Distributor] paid [defendant] directly for its inventory and took title in the products before selling them to [plaintiff]. [Plaintiff] directly paid [distributor], not [defendant], for its orders. [Distributor] is not an agent or subsidiary of [defendant], but rather an independently owned and managed company. Following the clear rule set forth in Illinois Brick, [plaintiff] lacks standing because the hospital is not a direct purchaser of products from [defendant].” See id. Although the Ninth Circuit noted that plaintiff had an independent contractual relationship with the defendant, and that the actual price that plaintiff paid for defendant’s products was set by “an agreement negotiated [with defendant] by a GPO on behalf of plaintiff,” it also noted that plaintiff additionally “had a contract with [the distributor], and it was that contract that ultimately effectuated the transfer of these goods.” See id. Notably, the Ninth Circuit observed that its conclusion was dictated in part by the Supreme Court’s post Illinois Brick precedent, which clarified the Court’s intention to establish a “bright line rule” by means of the direct purchaser rule, and had already “closed the door on the theory that an end user who buys from an independent distributor, rather than the manufacturer, should have standing because it may be the most efficient enforcer of antitrust laws.” Id. at 1122-1123 (“Illinois Brick is not a policy holding, but rather a case of statutory construction”). Delaware Valley is controlling. Plaintiff does not dispute that its external manufacturers initially paid for the DRAM that was delivered to them for incorporation into Sun products, which products would in turn be delivered and sold to Sun at cost, plus an agreed upon mark-up. Nor does plaintiff dispute that the external manufacturers took title to the DRAM initially purchased from the suppliers, or that the external manufacturers were independently owned and managed corporate entities. Thus, this case is directly in line with Delaware Valley, and compels the conclusion that it is the external manufacturers, and not plaintiff, who must be deemed the “immediate purchasers” of DRAM. This is so, despite the existence of an overarching independent pricing strategy maintained and operated by Sun in connection with purchases of DRAM from defendants. After all, and notwithstanding plaintiffs protestations to the contrary, the same reasons articulated by the Delaware Valley court in rejecting the plaintiff hospital’s direct purchaser claim on the basis of its independent contractual relationship with the defendant, apply here, too. Plaintiffs agency argument that the external manufacturers acted as mere “purchasing agents” for Sun, does not change this analysis. As articulated by plaintiffs counsel at the hearing on the instant motion, a finding that the external manufacturers acted as Sun’s purchasing agents would allow the external manufacturers’ direct payments to defendant DRAM suppliers to be legally attributed to Sun, thereby cloaking Sun with the necessary authority to assert claims based on external manufacturer DRAM purchases. Application of this purchasing agency theory would also allow plaintiff to proceed “outside the scope of Illinois Brick,” in counsel’s words, thereby obviating any objections based on Delaware Valley. For support for the purchasing agency theory, plaintiff relies on In re Coupon Clearing Service, Inc., 113 F.3d 1091 (9th Cir.1997), and E. & J. Gallo Winery v. EnCana Energy Servs., Inc., 2008 WL 2220396 (E.D.Cal. May 27, 2008). See Pl. Opp. Re EM Purch. at 9:11-12:19. These cases, however, are neither persuasive nor controlling. In re Coupon Clearing Serv. is a bankruptcy decision and did not address federal antitrust law at all, let alone did it consider the availability of an agency theory as an alternative theory available in the direct/indirect purchaser context. As for E. & J. Gallo Winery, it does address the availability of a general agency theory in the federal antitrust context. However — and putting aside the decision’s non-binding status upon this court — E. & J. Gallo Winery only considered the availability of a general agency theory to a plaintiff seeking to impose antitrust liability on parent-subsidiary corporations. This is, in the court’s view, a distinct question from the issue urged by plaintiff upon the court here— i.e., whether a plaintiff can invoke a purchasing agency theory as an alternative means of establishing direct purchaser standing for purposes of asserting federal antitrust claims. In contrast to the agency theory discussed by the district court in E. & J. Gallo Winery, the present inquiry precedes the question of antitrust liability entirely, and instead deals with a plaintiffs legal ability to assert antitrust claims in the first instance. Aside from the lack of convincing legal support for plaintiffs purchasing agency theory, moreover, the real problem with plaintiffs argument is that it requires the court to turn its back on what it views as the clear governing framework of Illinois Brick. As the Ninth Circuit has made clear, that framework set forth a “bright line rule” that prohibits all but direct purchasers from bringing suit under the federal antitrust laws — adherence to which is required under the undisputed factual scenario advanced here. See Delaware Valley, 523 F.3d at 1122-23. Thus, and without clear legal authority to the contrary, no justification for departing from this well-recognized framework exists. And while plaintiff correctly notes that Delaware Valley did not have occasion to examine the precise purchasing agency argument advanced here, the factual similarities in the case at bar to Delaware Valley persuade this court that any such argument would have been discredited by the Ninth Circuit as yet another misguided attempt to fashion a “new formulation of the Illinois Brick rule.” See id. at 1123, 1124 (the Supreme Court’s “firm [direct purchaser] rule does not provide us the leeway to make a policy determination on a case-by-case basis as to whether standing should be recognized when there are special business arrangements”). In sum, therefore, fidelity to controlling precedent requires the conclusion that for all claims based on DRAM purchases made by external manufacturers, it is those external manufacturers and not Sun who qualify as direct purchasers capable of bringing suit, pursuant to the direct purchaser rule of Illinois Brick. 2. Control Exception to Illinois Brick Direct Purchaser Rule Sun asserts, however, that even if the court concludes that Sun does not qualify as a direct purchaser under Illinois Brick, it is nonetheless qualified to assert claims based on external manufacturer DRAM purchases, by virtue of the ‘control’ exception recognized in Illinois Brick. The ‘ownership’ or ‘control’ exception permits offensive use of the pass-on theory in situations where “market forces have been superseded.” One example of such a situation occurs when the direct purchaser is owned or controlled by a member of an alleged conspiracy. See, e.g., Illinois Brick, 431 U.S. at 736 n. 16, 97 S.Ct. 2061 (“Another situation in which market forces have been superseded and the pass-on defense might be permitted is where the direct purchaser is owned or controlled by its customer”); cf. Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); In re Western Liquid Asphalt Cases, 487 F.2d 191, 199 (9th Cir.1973). While long-recognized, however, there are few authoritative cases that clearly define the legal showing required to justify application of the control exception, and no Ninth Circuit authority that provides affirmative guidance on the issue. As a general matter, the ownership and control exception has been construed to encompass relationships involving such functional economic or other unity between the direct purchaser and either the defendant or the indirect purchaser, that there effectively has been only one sale. See, e.g., Jewish Hosp. Ass’n v. Stewart Mech. Enters., 628 F.2d 971, 975 (6th Cir.1980); Royal Printing Co. v. Kimberly-Clark Corp., 621 F.2d 323, 326-27 (9th Cir.1980); see also, e.g., In re Mercedes-Benz AntiTrust Litig., 157 F.Supp.2d 355, 355 (D.N.J.2001) (“[T]he rationale of Illinois Brick’s bar to indirect purchaser suits does not apply where the supposed intermediary is controlled by one or the other of the parties”). Some examples of the types of facts that would satisfy the control exception have furthermore been defined as: “interlocking directorates, minority stock ownership, loan agreements that subject the wholesalers to the manufacturers’ operating control, trust agreements, or other modes of control separate from ownership of a majority of the wholesalers’ common stock.” In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 606 (7th Cir.1997). Here, plaintiff concedes that it and the external manufacturers were separate legal entities, lacked interlocking directorates and officers, did not own each other’s stock, and did not enter into loan agreements, trust agreements, or extensions of credit on behalf of one another. See, e.g., PI. Opp. Br. at 15:20-26; see also, e.g., Moore Deck, Ex. 5, Responses 48, 58; Ex. 8 at 68-76; Ex. 15 at ¶ 18; Ex. 13 at 50-52, 118. Plaintiff contends, however, that these facts are not determinative of the control question, since application of the exception depends upon the narrower issue whether sufficient control is exercised in connection with the actual procurement of DRAM for incorporation into Sun products only — not whether it is exercised in connection with structural day to day control of an entity. And this, says plaintiff, it has indisputably demonstrated based on the uncontested evidence showing that Sun determined from whom, at what price, and at which percentage of business the external manufacturers would order DRAM; that Sun provided forecasts to determine the quantities of DRAM ordered by the external manufacturers; and that Sun bore the cost of the DRAM that was ordered by the external manufacturers on its behalf (by paying for the DRAM at cost plus a percentage mark-up). See, e.g., Moore Decl. Re EMs, Ex. 7 at 76; see also, e.g., Cross EM Opp. Deck, Ex. 22 at 82-83, 613; Ex. 26 at 160; Ex. 27 at 128-29; Ex. 28 at 62-64; Ex. 29 at 28-29, 119-122, 124, 134^5; Ex. 30 at 125-26; Ex. 32 at 45-50. For support of its argument that it is only control over the external manufacturers’ DRAM procurement activities that counts for purposes of the control exception (rather than the presence of structural control), plaintiff relies primarily on In re Toilet Seat Antitrust Litig., 1977 WL 1453 (E.D.Mich. Aug. 24, 1977). As plaintiff notes, In re Toilet Seat found that a plaintiff lumber company could allege class action antitrust claims against defendant manufacturers of toilet seats, notwithstanding that plaintiff did not “purchase directly from” the manufacturers but rather relied on a midstream purchasing agent to make purchases on plaintiffs behalf. See id. at *2. The court found that plaintiffs relationship with the purchasing agent was one of “principal and agent” rather than buyer and seller, and that the relationship fell within the control exception of Illinois Brick. Id. The evidence that the court relied on in coming to this conclusion demonstrated: that the middle agent with whom plaintiff dealt was a “purchasing concern;” that plaintiff engaged the agent for “a flat monthly fee;” that the fee paid to the agent “bore no relation to the quantity of goods obtained;” and that billing arrangements varied with different transactions, although in some circumstances, the agent would be billed first and in turn would bill plaintiff. Id. Putting aside for the moment the fact that In re Toilet Seat constitutes (as so many of the cases cited herein by the parties do) non-binding authority, it is not altogether persuasive. In re Toilet Seat teaches that the control exception may be satisfied when the plaintiff employs an independent broker or purchasing agent as middle man whose sole function is to act as a mere conduit for the procurement of goods. This, however, is different from the case at bar. Here, plaintiff does not dispute that it employed external manufacturers for assistance in the actual manufacture of Sun products — not simply as brokers to act as conduits for the procurement of DRAM. This broader relationship triggers additional complexities that are highlighted by the different billing arrangements evidenced in both cases. In re Toilet Seat notes, for example, that plaintiffs purchasing agent was paid a flat monthly fee for its services that bore no relationship to the quantity of goods obtained. Here, by contrast, Sun’s payments to external manufacturers are directly proportional to the amount of Sun-finished products that Sun purchases, since all products are paid for on a cost basis, plus an additional percentage mark-up. These differences serve to highlight a larger disparity: whereas In re Toilet Seat is characterized by facts indicating that market forces have been suspended (e.g., flat fee payment that is resistant to supply and demand forces), the present case is characterized by a relationship in which traditional market forces remain in play. As such, the fundamental premise upon which the control exception is to be applied — he., in situations in which market forces are suspended — is not evident here, even if evident under the facts of In re Toilet Seat. This conclusion is consistent with Jewish Hosp. Ass’n, a Sixth Circuit case that both sides agree is instructive. See 628 F.2d at 975. In listing there the “examples of situations where an ownership or control relationship between an indirect purchaser and a direct purchaser might make the passing-on bar inapplicable,” the Sixth Circuit noted situations involving parent-subsidiary relationships, or one company’s stock ownership of another, as the paradigmatic examples. Id. Significantly, however, the court also noted that, while a relationship with an independent broker or purchasing agent such as that described in In re Toilet Seat could also satisfy the exception, this rule only applies where market forces are truly superseded. Id.; see also Howard Hess Dental Lab. v. Dentsply Intern., 424 F.3d 363, 372 (3d Cir.2005) (“modes of control that might qualify for the control exception include ‘interlocking directorates, minority stock ownership, loan agreements that subject the wholesalers to the manufacturers’ operating control, [or] trust agreements”). Since there is no evidence that plaintiffs external manufacturers were independent purchasing agents of the type contemplated by In re Toilet Seat and Jewish Hosp. Ass’n, application of the control exception is therefore inappropriate here, unless plaintiff can demonstrate other recognized modes of control that might suggest that market forces have been superseded' — e.g., interlocking directorates, minority stock ownership, loan agreements that subject the wholesalers to the manufacturers’ operating control, etc. As noted, however, it is undisputed that this is not the case. It is worth noting, furthermore, that to the extent that the external manufacturers retain, and have exercised, their right to sue defendants, this further confirms that market forces have not been superseded in the traditional sense contemplated by the control exception, and that the policy reasons behind the Illinois Brick decision remain intact. Indeed, as defendants point out, at least two external manufacturers—Celestica and Solectron' — have submitted direct purchaser claim forms as part of the direct purchaser MDL proceedings in the In re DRAM litigation before the court. See Moore Deck Re EMs, Ex. 13 at 41-43; Exs. 17-19. In sum, therefore, the court concludes that plaintiff has failed to introduce a material dispute of fact as to whether market forces here have been superseded in the manner contemplated for the control exception to apply. Based on all the foregoing, the court agrees with defendants that Sun does not qualify as a true direct purchaser for those claims based on DRAM purchases made by external manufacturers, and has furthermore failed to established a material dispute of fact as to application of the control exception to Illinois Brick. Defendants’ motion for summary judgment is accordingly GRANTED. C. Motion to Dismiss Claims Based on Foreign DRAM Purchases Defendants’ motion to dismiss seeks a ruling that the court lacks subject matter jurisdiction over plaintiffs claims, to the extent based on purchases made by Sun’s foreign subsidiaries. As noted, the motion is defendants’ third attempt to persuade the court to dismiss plaintiffs claims based on foreign DRAM purchases, and “addresses the narrow jurisdictional question remaining after the court’s October 2007 ruling on defendants’ motion to dismiss” — i.e., whether plaintiff can articulate and prove a legal theory that would satisfy proximate causation under the FTAIA. According to defendants, the completion of discovery has now sufficiently developed the factual record to make clear “that Sun cannot carry its jurisdictional burden” under the statute. As discussed ad nauseam in the court’s prior dismissal orders, the court’s assertion of subject matter jurisdiction over plaintiffs claims based on foreign subsidiaries’ DRAM purchases — notwithstanding the general proscriptions of the FTAIA— generally requires a showing that defendants’ foreign conduct (1) had a direct, substantial and reasonably foreseeable effect on domestic commerce; which (2) gave rise to a Sherman Act claim. See 15 U.S.C. § 6a.; see also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 158, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 987-88 (9th Cir.2008). Having already found that plaintiff has shown the former, the court now limits its inquiry to the latter, and examines whether plaintiff can demonstrate proximate causation between the recognized domestic effect of defendants’ conduct (i.e., the setting of higher prices for DRAM in the United States) and plaintiffs foreign injury (i.e., the payment of higher DRAM prices abroad). See discussion, supra at 1173-75; Dismissal Order, 534 F.Supp.2d at 1115—16; see also In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d at 987-88. Resolution of this inquiry depends upon resolution of plaintiffs two alternative theories: (1) the single enterprise theory; and (2) the agency theory. Before getting to the merits of these theories, however, there are two preliminary issues raised by the parties that require resolution. First, plaintiff contends, as it has previously, that it is legally improper in the first instance to sever for the court’s consideration any portion of claims based on foreign DRAM purchases, since those claims are also based on domestic DRAM purchases — the court’s jurisdiction over which no one disputes. Second, and assuming severance of the foregoing claims for the court’s consideration is permissible, the parties dispute whether the proper legal standard to be applied in evaluating the instant motion is that provided by Federal Rule of Civil Procedure 12(b) (1), or alternatively, Federal Rule of Civil Procedure 56. As to the first preliminary issue, plaintiff contends that since it is undisputed that the court has jurisdiction over Sun’s claims premised on domestic deliveries of DRAM, the court cannot arbitrarily carve out from these claims the portion that are based on foreign deliveries, and dismiss them. This argument is unpersuasive, however, for as defendants point out, the court already considered and ruled upon the issue in its October 2007 order. Specifically, the court there said: “as to whether plaintiffs’ claims based on foreign injury are severable from their claims based on domestic injury (which defendants have not moved to dismiss), the court agrees with a number of courts who have employed sound analysis in determining that such claims are severable.” Dismissal Order, 534 F.Supp.2d at 1116 (citing In re Rubber Chemicals Antitrust Litig., 504 F.Supp.2d 777, 781-83 (N.D.Cal.2007)). Plaintiff presents no compelling reason for departure from this earlier holding. To the extent, moreover, that plaintiff rests its renewed argument against severance on the court’s corollary statement that it “need not decide the issue definitively” on the prior dismissal motion, the court takes the opportunity now to definitively decide the issue in favor of severance. As to the parties’ second preliminary dispute over the proper legal standard applicable to the present motion, the court concludes that defendants have correctly argued in favor of application of a 12(b)(1) standard, rather than a Rule 56 standard. Both parties rely on Thornhill Publ’g Co. v. Gen. Tel. & Elec., 594 F.2d 730 (9th Cir.1979) in their competing approaches to this issue. In Thornhill, the Ninth Circuit affirmed the lower court’s grant of defendant’s summary judgment motion seeking dismissal of plaintiffs complaint on grounds that the complaint’s alleged conduct was outside the jurisdictional reach of the Sherman Act. The trial court had applied the Rule 56 summary judgment standards in deciding the motion, rather than the 12(b)(1) standard usually applied to motions to dismiss for lack of subject matter jurisdiction. While noting that it need not definitively resolve the question whether the Rule 56 standard or a 12(b)(1) standard should have been applied by the district court, the Thornhill court made several observations about the use of these standards in the antitrust context. The Ninth Circuit noted that where, as here, a motion attacking jurisdiction is made on the basis of facts in the record, such a motion is commonly labeled a “speaking motion,” which is subject to analysis pursuant to 12(b)(1) standards, and which allows the court to resolve disputed facts in evaluating the jurisdictional claims. See 594 F.2d at 733. However, the court went on to note that, where the jurisdictional issues in an antitrust case are not separable from the merits of a case (e.g., where an element required to state a Sherman Act claim “is an element of the substantive offense as well as a jurisdictional requirement”), then a motion going to the jurisdictional issue should be accorded Rule 56 treatment. See id. The Thornhill court also took specific note of a prior recent case in which the Ninth Circuit considered the jurisdictional and substantive issues presented in a Sherman Act case specifically, found them to be legally distinct, and applied a 12(b)(1) legal standard. The Thornhill court quoted language from that prior case as follows: “[t]he jurisdictional issue under the Sherman Act is distinct from the substantive issue of whether a given defendant’s conduct was of the kind prohibited by the Act’... Specifically, ‘the jurisdictional question ... is whether defendants’ conduct had a sufficient relationship to interstate commerce to be subject to regulation by Congress ... (while) the substantive issue ... is whether defendants participated in anti-competitive conduct.” Id. at 735. The Thornhill court cautioned, however, that this earlier observation had been reached in a case where the opposing party had conceded that the jurisdictional and substantive issues were separable. To that end, and notwithstanding the reasoning of this earlier case, the Thornhill court concluded that in a case “where the jurisdictional issue and the substantive issues are so intermeshed that the question of jurisdiction is dependent on decision of the merits,” the Rule 56 standard still applies. See id. Thornhill’s discussion is complicated and not altogether clear. Nonetheless, as applied here, Thornhill is best read as suggesting that the 12(b)(1) standard, rather than a Rule 56 standard, is appropriate. The jurisdictional issues in the case — while factual in nature — -do not appear to be so “enmeshed” with the substantive issues of plaintiffs Sherman Act claim such as to require Rule 56 treatment. As the Thornhill court contemplated, the jurisdictional issue in Sun’s Sherman Act and Cartwright Act claims (insofar as the foreign purchase based claims are concerned) is whether defendants’ conduct had a sufficient relationship with the domestic effects of that conduct and plaintiffs injury, so as to be subject to regulation under the FTAIA. The substantive issues of plaintiffs claims, however, are whether defendants participated in anti-competitive conduct by conspiring to fix prices. Since the two issues are distinct, analysis pursuant to 12(b)(1) standards is appropriate. Accordingly, the court shall consider the factual evidence presented and resolve factual disputes as necessary to determine the existence of jurisdiction as a matter of law. Having disposed of the preliminary issues, the court now turns to the two theories advanced by plaintiff. 1. Single Enterprise Theory Plaintiff asserts that it stands in the shoes of its wholly owned foreign subsidiaries — and thus that those subsidiaries’ DRAM purchases at artificially high levels were proximately caused by the setting of a single inflated DRAM price in the U.S.— because it, Sun Scotland and Sun Netherlands collectively “operated as a single enterprise with a unified purpose in the production and sale of Sun products and the procurement of components, such as DRAM, needed to assemble those products.” See PI. Opp. Br. at 10:2-4. As evidence of this single enterprise theory, Sun points to the global DRAM procurement strategy instituted and managed by Sun’s global memory procurement team headquartered in California. Plaintiff also relies on several district court cases, including, primarily, Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), and Aventis Envtl. Sci. USA LP v. Scotts Co., 383 F.Supp.2d 488, 499-500 (S.D.N.Y.2005). Ultimately, however, neither plaintiffs reliance on the evidence nor its reliance on the case law withstands scrutiny. To begin with, plaintiffs legal authority is less than compelling. While true that a single entity doctrine was announced in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), that case held that parent and subsidiary corporations are to be considered a single collective entity for purposes of conspiracy liability under section 1 of the Sherman Act, and cannot be found liable for conspiracy with each other under the Act. The doctrine therefore expressly deals with the question whether a parent and subsidiary corporation may be charged with conspiring with each other, and not, as is the case here, with the question whether those two entities may collectively be treated as a single entity for purposes of jurisdictional antitrust standing. Nor has any other case relied on by plaintiff so extended the single entity doctrine announced in Copperweld. Plaintiff is closer to the mark in citing Aventis, an antitrust case allowing a U.S. affiliate plaintiff to assert antitrust claims based on the harm done to its foreign affiliate. See Aventis, 383 F.Supp.2d at 499-500. Aventis noted that plaintiffs had “proffered evidence which, if believed, would demonstrate that all three [affiliate plaintiff] entities were acting as a single enterprise and shared a complete unity of interests.” Id. Nonetheless, Aventis is distinguishable. First, and as defendants point out, it did not deal with the FTAIA specifically. Putting this concern aside, however, the court finds it significant that the foreign affiliates in Aventis had assigned their antitrust claims to the plaintiff affiliate corporation. Id. This fact alone strongly suggests a plaintiffs entitlement to assert claims on behalf of its foreign affiliates. Here, however, this critical fact is lacking. Furthermore, the Aventis court provided no analysis supporting its conclusion; thus, it is impossible for this court to meaningfully evaluate the contours of any single entity doctrine applied by that court. And while Aventis did note that two other district court cases had affirmed the existence of the single entity doctrine, neither of those cases dealt with a similar FTAIA context. See, e.g., In re Vitamins Antitrust Litig., 2001 WL 755852, at *3 (D.D.C. June 7, 2001) and Farmland Dairies, Inc. v. New York Farm Bureau, Inc., 1996 WL 191971, at *4 (N.D.N.Y. Apr. 15, 1996) (holding without meaningful discussion that a parent could bring antitrust claims on behalf of its subsidiary when their interests were the same and they were treated as the same entity). In sum, therefore, plaintiffs legal authorities — the majority of which are non-binding — have not convinced the court that the single entity doctrine should be applied in the manner advanced by plaintiff here. Second, defendants correctly point out that plaintiff rests its evidence in support of its single enterprise theory in part on a global procurement strategy that has already been discredited. See Opp. Br. at 10:2-5 (Sun and its subsidiaries “operated as a single enterprise with a unified purpose in the production and sale of Sun products and the procurement of components, such as DRAM, needed to assemble those products”); see also Cross FTAIA Opp. Decl., Ex. 3 at ¶ 4. Both this court and the Ninth Circuit have held that, to the extent plaintiffs proximate causation theory rests on proof of a global procurement strategy, this is not a viable legal theory. See, e.g., In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d at 989-90 (rejecting plaintiffs attempt to argue “a direct correlation between the U.S. price and the prices abroad” and fact “that the [defendants’ activities resulted in the U.S. prices directly setting the worldwide price,” and noting prior rejections of “single global price” theories of proximate causation). Thus, plaintiffs reliance on its global procurement strategy as evidence in support of its proximate causation argument — if made via a single enterprise theory — must be rejected. In sum, the court finds that plaintiff has failed to sufficiently demonstrate that application of a single entity doctrine is appropriate in the manner urged by plaintiff here as to the foreign subsidiaries. 2. Agency Theory This leaves plaintiff with its second, and alternative, theory — that of agency. Plaintiff argues that agency principles