Full opinion text
MEMORANDUM OPINION AND ORDER JOHN R. TUNHEIM, District Judge. Plaintiff and counterclaim defendant Insignia Systems, Inc. (“Insignia”) and defendant and counterclaim plaintiff News America Marketing In-Store, Inc. (“NAMI”) are direct competitors in the in-store promotions business. Insignia filed this suit against NAMI alleging violations of federal and state antitrust law, and for disparagement under the Lanham Act, 15 U.S.C. § 1125, and the Minnesota Deceptive Trade Practices Act (“MDTPA”), MinmStat. § 325D.44. NAMI filed counterclaims alleging that Insignia wrongfully induced retailers to breach their contracts with NAMI and that Insignia’s president, Scott Drill, made false, disparaging comments about NAMI in violation of federal and state law. The case is before the Court on NAMI’s motion for summary judgment on Insignia’s claims, Insignia and counterclaim defendant Scott Drill’s’ motions for summary judgment on NAMI’s counterclaims, NAMI’s motion to exclude, and Insignia’s motion to compel discovery. For the reasons below, the Court denies the parties’ motions for summary judgment, denies NAMI’s motion to exclude, and grants the motion to compel. BACKGROUND I. THE IN-STORE PROMOTIONS BUSINESS Insignia and NAMI are prominent companies in the third-party in-store promotions and advertising business. Third-party promotions companies (“TPPs”) such as Insignia and NAMI enter into contracts with product manufacturers, also known as consumer packaged goods companies (“CPGs”), and retailers. TPPs sell CPGs advertising tactics and services for placing products in retail stores. TPPs purchase from retailers the right to place those tactics in the retail stores. A. Contracts with CPGs and Retailers TPPs potentially provide two layers of exclusivity that have value to CPGs: category exclusivity and retail exclusivity. TPPs compete to sell CPGs a variety of promotional tactics for placement in retail stores, including print and electronic signage in the store, end-of-aisle displays, freezer displays, floor signage, cart advertising, and coupons. (Overstreet Report, Docket No. 516, Ex. 3 at 21-36.) CPGs typically demand that TPPs promote only their products within a particular product category for specified periods of time. Referred to as “category exclusivity,” the TPP guarantees that it will not sell similar advertising tactics to another CPG in the same product category during certain “cycles,” often four-week periods. CPGs also promote their products through “trade” promotions at retail stores, bypassing the TPPs and working directly with retailers. TPPs also contract with retailers to purchase the right to place promotional- tactics, which advertise CPGs’ products, in the retail stores. A variety of retailers use in-store promotions, including grocery stores, drug chains, mass retailers, home improvement stores, and bargain chains. NAMI often includes clauses in its retail contracts providing for “retail exclusivity.” That is, NAMI seeks to secure the exclusive right to provide certain promotional vehicles in particular retail stores, to the exclusion of other TPPs with similar promotional vehicles. Retail exclusivity can maximize the effectiveness of in-store advertising for CPGs, and CPGs apparently pay more to TPPs that are able to secure retail exclusivity, because such exclusivity enables CPGs to advertise in certain stores in the absence of advertising from their competitors. (Overstreet Dep. Tr., Docket No. 476, Ex. 4 at 263, Ex. 5 at 498; Payton Dep. Tr., Docket No. 476, Ex. 6 at 137.) B. Third-Party In-Store Promotions Companies NAMI offers a variety of advertising tactics to CPGs, including shelf-mounted machines that dispense coupons or rebates (SmartSource Coupon Machines and SmartSource ShelfTake One), floor decal advertisements (FloorTalk), and shopping cart advertisements (SmartSource Carts). NAMI also offers two at-shelf signage tactics: Shelftalk, which is an “at-shelf’ sign with a brand message; and Price Pop Guaranteed (“Price Pop”), which is an at-shelf sign with product prices. NAMI claims that its extensive array of promotional tactics gives it a competitive advantage because a CPG can do “one-stop shopping” with NAMI for all of its in-store promotion needs. NAMI does not dispute that its contracts with retailers often incorporate retail-exclusivity clauses to secure NAMI’s ability to be the exclusive provider of particular categories of in-store advertising tactics. NAMI notes, however, that many retailers negotiate to “carve-out” exceptions to these exclusivity provisions for particular tactics offered by other TPPs or by the retailer itself. Insignia’s promotional offerings are more limited. Indeed, it appears that Insignia’s most predominant and successful offering is the “POPSign” at-shelf advertising tactic, which incorporates both brand equity messaging and product price, and is designed to attract consumer attention at the point of purchase. In 2006, Insignia sold POPSigns to 57 CPGs and, as of 2008, Insignia placed POPSigns in 9,000-10,000 retail stores. (Overstreet Report, Docket No. 476, Ex. 3 at 21 n. 22.) Insignia’s POPSigns are in direct competition with NAMI Price Pop, and Insignia appears to have had success: in 2007, Insignia’s POPSign revenues were over $20.8 million, while NAMI’s revenues for Price Pop sales were only $2.76 million. (Murphy Report, Docket No. 476, Ex. 1, at Ex. 3.) FLOORgraphics (“FGI”) also competes with NAMI and Insignia for in-store advertising placements, offering floor decals that are affixed to floors of a store aisle. According to Insignia, FGI generated revenues of nearly $70 million in 2002 by selling a variety of at-shelf advertising products, including floor decals. Insignia asserts that by 2007, however, FGI’s revenues had fallen to $13 million and were based solely on sales of floor decals. (Overstreet Report, Docket No. 516, Ex. 3 at 30; Jones Deck, Docket No. 516, Ex. 7, ¶ 11(A).) Many TPPs offer services to CPGs, including NAMI, Insignia, FGI, Vestcom, Menasha, and Catalina Marketing. Insignia asserts, however, that among all TPPs, there are only three main competitors for at-shelf, in-store advertising — NAMI, Insignia, and, to a far lesser extent, FGI. Insignia notes that the revenue for the top three firms providing advertising services to CPGs grew from $292 million to $393 million between 2002 and 2006. (Over-street Report, Docket No. 516, Ex. 3 at tbl. 22.) Insignia explains that NAMI and Insignia accounted for more than all of that growth because FGI revenues declined over that period. Further, Insignia states that NAMI alone accounted for 90 percent of the growth. II. THE COMPLIANCE AUDIT A. NAMI’s Decision to Discontinue Its Retailer-Installed Program TPPs manage the implementation of in-store tactics either by having retailers install the tactics, or by providing their own field force to install the tactics and oversee compliance. TPPs measure compliance rates based on the percentage of contracted-for signs actually mounted in retail stores. Under Insignia’s business model, retailers are responsible for hanging POP-Signs in retail stores. NAMI notes that compliance rates on retailer-installed programs are inferior to compliance rates for field-force-installed programs. Indeed, given the lower compliance rate for retailer-installed Price Pops, NAMI discontinued retailer installation in 2003. NAMI thereafter began offering a field-force-installed Price Pops program and was able to guarantee at least 90 percent compliance. Prior to discontinuing its retailer-installed program, NAMI conducted an audit of the compliance rates of several third-party programs, including Insignia’s retailer-installed POPSigns. (Peiser Dep. Tr., Docket No. 476, Ex. 23 at 33-39.) According to NAMI, that audit revealed that Insignia’s retailer-installed program had extremely low compliance rates of less than 20 percent. (Porco Letter, Docket No. 476, Ex. 47.) NAMI also reported that FGI’s compliance rate was less than 50 percent. (Id.) Insignia contends that the audit was methodologically flawed and inaccurate, and that NAMI was aware of those problems. Insignia contends that its compliance rate was 75% or higher during the relevant time period. Insignia also contends that NAMI ignored potentially higher compliance rates; misrepresented the size of NAMI’s field force, which according to NAMI included 10,000 employees; and misrepresented the source of the audit data by claiming that syndicated data suppliers conducted the audits. B. The Porco Letter Based on the audit results, NAMI discontinued its own retailer-installed Price Pops program in favor of a field-force-installed program. In February 2003, NAMI president Dominic Porco sent a communication (the “Porco Letter”) to CPGs about the results of NAMI’s audit to promote its new model for field-force-installed Price Pops tactics. The Porco Letter stated, in relevant part: Did you know that most in-store marketing services providers rely on retailers or subcontracted field labor to execute the programs that YOU buy? This means that on average, less than half the stores that you contracted for are ultimately installed. Less than half! We know that from a variety of sources, including client feedback, industry intelligence and a range of audit studies. In fact, our latest audit studies confirm this, as the results indicated that FLOORgraphics compliance averages were once again below 50%. Even more glaring is that in these same studies, Insignia POPS was found to have executed in less than 20% of the stores we surveyed. Certainly, this is not the most optimal spend of your media dollars. After all, how effective can an in-store program be if it’s not actually seen in-store? At News America Marketing, we operate differently. We take field execution extremely seriously. We have a dedicated in-house Field force that is 10,000 + people strong. These field professionals are our employees. They are not subcontracted. As a result, we are able to consistently deliver average compliance rates of 90-95%! (Porco Letter, Docket No. 508, Ex. 61 at NA07-0878361.) In the course of its business efforts, NAMI continued to use those compliance figures in marketing and sales materials that NAMI distributed to CPGs. III. THE PARTIES’ CLAIMS AND PROCEDURAL POSTURE On September 23, 2004, Insignia filed an action against NAMI in the United States District Court for the District of Minnesota. In its Amended Complaint, Insignia alleges that NAMI violated various federal and state antitrust laws by entering into exclusive contracts with retailers and by distributing disparaging comments to CPGs. Insignia also alleges that NAMI violated the Lanham Act and the Minnesota Deceptive Trade Practices Act (“MDTPA”). NAMI filed an amended answer with counterclaims in January 2007. NAMI asserts claims for tortious interference, unfair competition, and deceptive trade practices. NAMI alleges additional claims against Insignia and Insignia president Scott Drill for violations of the Lanham Act and the MDTPA, and for defamation per se. The parties moved for summary judgment on the respective claims. In conjunction with NAMI’s motion for summary judgment, NAMI moved to exclude three declarations submitted by Insignia, as well as damages estimates that Insignia management provided to Insignia’s damages expert. Insignia also moved to compel discovery of materials for use at trial, and the Court took that motion under advisement without oral argument. The Court begins by addressing NAMI’s motion for summary judgment and, within that analysis, NAMI’s motion to exclude. The Court then turns to Insignia’s motion for summary judgment on the counterclaims, and concludes with Insignia’s motion to compel. DISCUSSION I. STANDARD OF REVIEW Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can 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). II. NAMI’S MOTION FOR SUMMARY JUDGEMENT A. Insignia’s Claims Insignia brought twelve federal and state claims against NAMI, which can be roughly categorized into three groups: (1) unlawful monopoly or attempted monopoly under Section 2 of the Sherman Act and under the Minnesota Antitrust Act, Minn. Stat. § 325D.52; (2) unlawful boycott and unlawful exclusive dealing under Section 1 of the Sherman Act, Section 3 of the Clayton Act, and the Minnesota Antitrust Act, Minn.Stat. §§ 325D.51, 325D.53; and (3) false advertising under the Lanham Act and the MDTPA. In short, Insignia contends that NAMI purchased the right from retailers to exclude competitors like Insignia and FGI from offering their own services to retail stores. Insignia claims that NAMI paid increasingly large sums to retailers in exchange for retail exclusivity contracts that were excessively long, (Overstreet Am. Rebuttal Report, Docket No. 516, Ex. 6 at 20), and those contracts offered NAMI increasing exclusivity in placing promotional tactics in retail stores. Insignia contends that as a consequence of NAMI’s overwhelming presence in retail stores, NAMI can charge CPGs more for its advertising tactics because NAMI can assure CPGs that only their products will be advertised in stores. Insignia asserts that in an effort to enforce those exclusive contracts, NAMI directed its own employees or retail store employees to remove from retail store shelves properly implemented advertising tactics from NAMI competitors. Insignia further contends that NAMI sought to bolster the exclusionary effects of its contracts with retailers by falsely claiming that NAMI’s competitors’ compliance rates were substantially lower than NAMI’s. NAMI now moves for summary judgment, arguing that Insignia has failed to produce evidence establishing that NAMI’s conduct caused either injury to Insignia or antitrust injury. Further, NAMI contends that Insignia failed to establish claims for unlawful monopoly or attempted monopoly and for unlawful exclusive dealing or unlawful boycott. The Court begins by addressing the merits of Insignia’s anti-trust claims, and then turns to Insignia’s disparagement claims. B. Injury to Insignia A plaintiff seeking damages under antitrust laws must show that the alleged anticompetitive practices in fact caused it injury. See 15 U.S.C. § 15(a). That is, “[i]n order to prevail plaintiffs must prove for each claim ... a causal relationship between the violation and the injury.” Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1054 (8th Cir.2000) (internal quotation marks omitted); see also Read v. Med. X-Ray Ctr., P.C., 110 F.3d 543, 545 (8th Cir.1997) (holding at summary judgment that the plaintiff “had to show a reasonable jury could find [the defendant’s] allegedly anticompetitive conduct was ‘a material cause’ of [plaintiffs] injury”). 1. Evidence of Loss of Business NAMI contends that Insignia has not produced evidence that CPGs reduced business, ceased doing business, or declined to do business with Insignia as a result of NAMI’s conduct. Insignia responds that it has produced evidence that the distribution of audit results caused CPGs to reconsider their contracts with Insignia and that NAMI’s exclusive contracts and aggressive enforcement of those contracts caused Insignia to suffer injury. Insignia’s evidence of injury comes primarily from the declarations of Pamela Wesson, a CPG employee, and Karl Ball, an Insignia National Account Executive. In her declaration, Wesson states: During a routine sales call, ... a NAM sales representative[ ] informed me that NAM was the exclusive provider of in-store advertising with a number of large retail store chains whose stores sold Sara Lee brands. [The sales representative] told me that as the exclusive provider, NAM personnel were authorized to take down competitors’ signs, including Insignia POPSigns, from the shelves of these stores. She indicated that Sara Lee would be throwing its money away on Insignia POPSigns because they were very likely to be removed by NAM personnel and thus would be ineffective in promoting Sara Lee brands.... Because of [the sales representative’s] statements to me about NAM removing competitors’ signs from store shelves and Insignia’s poor compliance, I could not risk continuing to recommend Insignia’s programs to Sara Lee’s brand team. (Decl. of Pamela Wesson, Docket No. 516, Ex. 20, ¶¶ 10-11.) Further, Karl Ball states that despite Insignia’s progress in securing the business of Procter & Gamble (“P & G”) in the 2001-2002 time period, that progress “ceased shortly after NAM’s campaign attacking Insignia’s compliance began. Anita Scharfenbarger — P & G’s Manager, Marketing Operations — told me that P & G personnel had received copies of a letter circulated by NAM’s President, Dominick Porco, falsely asserting that Insignia’s compliance rates were in the 20% range.” (Decl. of Karl Ball, Docket No. 516, Ex. 58, ¶¶ 7-8.) Ball states that Scharfenbarger told him that a NAMI representative informed her that NAMI personnel were instructed to take down Insignia signs if they saw them on the shelf. (Id. ¶ 10.) Ball also notes that P & G pared back its business relationship with Insignia after receiving the Porco Letter and that he had similar experiences with two other major CPGs. (Id. ¶¶ 12-14,15-18.) NAMI asks the Court to exclude these declarations from consideration, and also to exclude the declaration of Richard Rodriguez, who states that he witnessed two incidents in which “someone had improperly removed an Insignia POPSign product” from retail store shelves. (Decl. of Richard Rodriguez, Docket No. 516, Ex. 66, ¶¶ 2^4.) In particular, NAMI argues that Insignia did not properly identify the declarants as required under Rule 26 of the Federal Rules of Civil Procedure. Rule 37 provides for the exclusion of evidence “on a motion, at a hearing, or at a trial” if such evidence was not timely disclosed, “unless the failure [to disclose] was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The Court considers four factors to determine whether ex-elusion is warranted: “(1) the importance of the excluded material; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice that would arise from allowing the material to be used ..., and (4) the availability of a continuance to cure such prejudice.” Transclean Corp. v. Bridgewood Servs., Inc., 77 F.Supp.2d 1045, 1063 (D.Minn.1999), vacated in part on other grounds, 290 F.3d 1364, 1380 (Fed.Cir.2002) (internal quotation marks omitted). NAMI argues that all three declarations should be excluded because NAMI has not had an opportunity to test the basis for their assertions through normal discovery process, and that there is no justification for failing to timely disclose the individuals. NAMI also contends that the Ball declaration should be excluded because it is based on hearsay. Insignia responds that the declarations should not be excluded because NAMI has not established that Insignia acted in bad faith. As an initial matter, NAMI does not identify which of Ball’s statements constitute hearsay. Although the Court notes that Ball’s references to discussions with the P & G manager could conceivably be considered hearsay, and therefore could be inadmissible, the Court defers decision on that consideration until trial. Even assuming that some of Ball’s statements could be inadmissible, his affidavit nonetheless contains substantial admissible evidence of Insignia’s injury entitling Insignia to survive summary judgment. Cf. Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir.1986) (noting, in the context of evaluating the existence of evidence of a conspiracy under Section 1 of the Sherman Act, that “[wjithout a showing that admissible evidence will be available at trial, a party may not rely on inadmissible hearsay in opposing a motion for summary judgment” (emphasis added)). The Court may therefore address the admissibility of Ball’s statements in motions in limine prior to trial. Further, NAMI has failed to establish that Insignia acted in bad faith. Generally, “[t]he use of an undisclosed witness should seldom be barred unless bad faith is involved.” Bergfeld v. Unimin Corp., 319 F.3d 350, 355 (8th Cir.2003) (internal quotation marks omitted); see also Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir.1993). Insignia amended its Rule 26 Disclosures on January 9, 2009 — without objection by NAMI — to include Wesson and Rodriguez. (See Am. Disclosures, Docket No. 526, Ex. B, at 29, 34.) Further, NAMI should have been aware of the import of the import of Ball’s testimony. An agreement between NAMI and Insignia identified Ball as an individual whose electronically stored information was to be searched. Indeed, Insignia represents that it produced 12,495 documents for which Ball was a custodian. In addition, discovery revealed to NAMI that Ball was the Insignia sales representative for the CPG accounts to which he testifies. In sum, NAMI has not established that Insignia acted in bad faith or that NAMI will suffer prejudice if the declarations are not excluded. Moreover, the declarations provide important evidence in support of Insignia’s claim that it has suffered injury-in-fact. In light of these circumstances, the Court denies NAMI’s motion to exclude the declarations. The Court notes, however, that in granting the motion to compel infra, the Court expressly provides for a brief extension of time for discovery for NAMI to address the substance of the declarations through deposition testimony or otherwise. 2. Dr. Overstreet’s Damages Model NAMI also challenges the damages model of Insignia’s expert, Dr. Thomas Overstreet, who concludes that NAMI’s conduct, and in particular the Porco Letter, caused Insignia’s stock price to drop. Specifically, NAMI argues that there is no evidence that investors ever knew about the Porco Letter or sold their Insignia stock in response to the Porco Letter. NAMI also contends that Dr. Overstreet failed to disaggregate other non-antitrust factors that could have caused Insignia’s stock price to drop. According to NAMI, Dr. Overstreet’s event study is unreliable and should be excluded, and therefore Insignia has not produced evidence of injury-in-fact. A plaintiff may not recover for losses that are not caused by the defendant’s unlawful conduct. See Amerinet Inc. v. Xerox Corp., 972 F.2d 1483, 1493-94 (8th Cir.1992). That is, a plaintiff must disaggregate losses caused by the defendant’s unlawful conduct from losses caused by other factors: When a plaintiff improperly attributes all losses to a defendant’s illegal acts, despite the presence of significant other factors, the evidence does not permit a jury to make a reasonable and principled estimate of the amount of damage. This is precisely the type of “speculation or guesswork” not permitted for antitrust jury verdicts. MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1162 (7th Cir.1983). NAMI contends that Dr. Overstreet’s damages estimates are inadmissible because they fail to disaggregate losses caused by NAMI’s alleged conduct and losses caused by Insignia’s business decisions. NAMI describes several factors for which Dr. Overstreet should have accounted for in his damages assessment: the higher prices for Insignia’s POPSigns as compared with NAMI’s Price Pops, and the consequent loss sales; Insignia’s failed acquisition of another TPP, Valustix; Insignia’s competitive disadvantage of not having a field force to install tactics; managerial and strategic errors identified in management consulting reports; and Insignia’s delay in entering a joint venture with another advertising company, Valassis. Insignia responds that Dr. Over-street’s report was based on two reliable methods for calculating damages, and further contends that Dr. Overstreet gave proper weight to all factors that NAMI contends were ignored in arriving at damages calculations. The Court also notes that NAMI’s motion in limine to exclude Dr. Overstreet’s testimony also raises these damages contentions. (See Docket No. 488.) The Court deferred decision on that and two other motions in limine filed by NAMI until after the Court decides the instant motions. Thus, the Court only briefly addresses the substance of NAMI’s arguments here. The Court agrees with Insignia that, at a minimum, Dr. Overstreet’s damages calculations are adequate to survive summary judgment. “A plaintiff must first prove the fact of antitrust damages, some ‘element of actual damages caused by the defendant’s violation of the antitrust laws.’ ” Eleven Line, Inc. v. N. Tex. State Soccer Ass’n, Inc., 213 F.3d 198, 206 (5th Cir.2000) (quoting Multiflex, Inc. v. Samuel Moore & Co., 709 F.2d 980, 989 (5th Cir.1983)). If a plaintiff does so, “a more relaxed burden of proof obtains for the amount of damages than would justify an award in other civil cases.” Id. at 207. “While the two most common methods of quantifying antitrust damages are the ‘before and after’ and ‘yardstick’ measures of lost profits,” a plaintiff may prove damages through an alternative method that provides a “reasonable estimate” based on “relevant data.” Id. Here, Insignia contends that Dr. Overstreet used two methods to calculate damages, including the yardstick method and a but-for method relying on costs and revenue projections in the but-for world — at the summary judgment stage, the Court concludes that these methods are sufficient for establishing damages. Moreover, there is adequate evidence, in the context of summary judgment, that Dr. Overstreet either accounted for, or found irrelevant, the factors NAMI contends he ignores. (Overstreet Report, Docket No. 516, Ex. 3 at 117; Overstreet Am. Rebuttal Report, Docket No. 516, Ex. 6 at 31-34.) The Court will more fully address NAMI’s arguments after setting a briefing schedule on the motions in limine. 3. Damages Prior to November 14, 2002 NAMI also contends that Insignia may not recover any losses caused by NAMI conduct that occurred prior to November 14, 2002, because the parties entered into a settlement agreement releasing NAMI from liability for losses prior to that date. Dr. Overstreet’s damages calculations, according to NAMI, includes estimates of losses before that date. Although it is not clear that Dr. Overstreet’s damages estimates did, in fact, consider losses prior to the release date, it would at least appear that any damages NAMI caused before November 14, 2002, cannot be recovered in this action. As with the arguments regarding Dr. Overstreet’s methodology, the Court will address the question of pre2003 damages, if it remains an issue, before trial. C. Antitrust Injury NAMI further contends that it is entitled to summary judgment because Insignia has not established that it suffered antitrust injury. In antitrust cases, “[p]laintiffs 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 makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). Thus, Insignia must establish that any alleged injury flowed from a harm to competition. See Read, 110 F.3d at 545. “[I]f there is no showing of injury, or if the injury alleged or proven is not an ‘antitrust injury,’ the plaintiff does not have a claim cognizable under the antitrust laws.” Midwest Commc’ns v. Minnesota Twins, Inc., 779 F.2d 444, 450 (8th Cir.1985). NAMI argues that its conduct has not harmed in-store competition because the evidence shows that its conduct has not adversely affected price or output in in-store advertising, and that it has not excluded competition. NAMI asserts that instead, between 2000 and 2007, NAMI’s average CPG in-store placement prices dropped by 35 percent. (Murphy Report, Docket No. 476, Ex. 1 at 22-23, and Ex. 12.) NAMI also asserts that its payments to retailers for the right to place tactics in retail stores have also increased substantially, growing from approximately $44 million in 2002 to approximately $82 million in 2005. (Id.) NAMI also points to evidence that in-store advertising output has expanded and new advertising media are emerging in the market. (Overstreet Report, Docket No. 516, Ex. 3 at 30-36; Murphy Report, Docket No. 476, Ex. 1, at Ex. 1.) Finally, NAMI contends that Insignia has not produced evidence that NAMI’s alleged disparagement caused injury to competition. Insignia responds that it has produced evidence demonstrating a dispute of fact that NAMI’s conduct injured in-store competition. First, Insignia argues that the very purpose of NAMI’s exclusive contracts was to exclude competitors. (Over-street Dep. Tr., Docket No. 516, Ex. 51 at 176-77.) Insignia argues that the exclusive contracts, for example, exclude NAMI’s competitors from contracting with a large percentage retailers, as computed by a measure of all commodity volume (“ACV”), or the measure of total annual sales volume for retailers. (Overstreet Report, Docket No. 516, Ex. 3, tbl. 4.) Moreover, Insignia argues that NAMI’s right-of-first-refusal provision in retail contracts, which allows NAMI to offer its own product in place of any new product offered by a rival, further precludes competitors from entering the market. (Over-street Report, Docket No. 516, Ex. 3 at 74.) In addition, Insignia contends that NAMI’s “compliance campaign” was designed to eliminate competition from its two largest in-store, at-shelf competitors: Insignia and FGI. In support, Insignia produces evidence that both it and FGI lost revenue and clients as a consequence of NAMI’s conduct. (See, e.g., Deck of Pamela Wesson, Docket No. 516, Ex. 20, ¶¶ 10-11; Willis Dep. Tr., July 25, 2007, Docket No. 516, Ex. 64 at 24-25, 81.) Dr. Overstreet also notes that “disparagement will amplify the adverse impact of the exclusive contracts on rivals’ ability to compete” because a reduction in demand for a rival’s services increases the rival’s costs of expansion. (Overstreet Report, Docket No. 516, Ex. 3 at 69.) Dr. Overstreet notes that the disparagement also reduces the competitive effectiveness of NAMI’s rivals. (Id. at 91.) Insignia has produced adequate evidence of antitrust injury to survive a motion for summary judgment. Here, the Court considers whether there is evidence that NAMI’s exclusive retailer contracts and alleged disparagement caused harm to in-store competition. Although NAMI has certainly raised ample evidence that there was no injury to competition, Insignia has countered with contrary evidence. Under those circumstances, summary judgment is unwarranted. NAMI also contends that its contracts with retailers are procompetitive, and asserts that Insignia has not established that NAMI’s competitors have been foreclosed from competing. The Court considers those contentions infra in its analysis of Insignia’s unlawful boycott and unlawful exclusive dealing claims. D. Monopoly and Attempted Monopoly Section 2 of the Sherman Act provides that it is illegal to “monopolize, or attempt to monopolize ... any part of the trade or commerce among the several States.” 15 U.S.C. § 2. To establish a claim for unlawful monopolization under Section 2 of the Sherman Act or its Minnesota counterpart, Minn.Stat. § 325D.52, a plaintiff must demonstrate that the defendant “(1) possessed monopoly power in the relevant market and (2) -willfully acquired or maintained that power as opposed to gaining that power as a result ‘of a superi- or product, business acumen, or historical accident.’ ” Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1490 (8th Cir.1992) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)); Howard v. Minn. Timberwolves Basketball Ltd. P’ship, 636 N.W.2d 551, 556-58 (Minn.Ct.App.2001). NAMI argues that there is no evidence that it possesses monopoly power over CPG customers or monopsony power over retailers. Further, NAMI contends that Insignia’s proposed relevant market is not economically coherent and, regardless, that Insignia has not demonstrated that NAMI possesses a dominant share of any market. NAMI also argues that Insignia’s disparagement claims cannot establish exclusionary action under antitrust law. The Court first addresses the question of NAMI’s market power in the relevant market. 1. Monopoly Power Under Section 2, the plaintiff must demonstrate that the defendant possessed monopoly or monopsony power in the relevant market. See Flegel v. Christian Hosp., Ne.-Nw., 4 F.3d 682, 691 (8th Cir.1993). Monopoly power is the power of a seller “to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Monopsony power is the power of a buyer to reduce prices below a level at which its rivals may compete. See I ABA Section of Antitrust Law, Antitrust Law Developments 288-89 (6th ed.2007). A plaintiff may establish monopoly power in two ways. See Flegel, 4 F.3d at 691. First, the plaintiff may present direct evidence of monopoly power by “showing the exercise of actual control over prices or the actual exclusion of competitors.” Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1018 (6th Cir.1999) (quoting Byars v. Bluff City News Co., 609 F.2d 843, 850 (6th Cir.1979)) (internal quotation marks omitted). Second, a plaintiff may present “circumstantial evidence of monopoly power by showing a high market share within a defined market.” Id.; see also HDC Med., Inc. v. Minntech Corp., 474 F.3d 543, 547 (8th Cir.2007). “In recent years, parties and courts have increasingly moved toward utilizing the circumstantial method as a ‘shortcut.’ ” Realty One, 173 F.3d at 1016; see also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 464, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Here, the parties extensively argue whether there is evidence that NAMI actually controls prices or actually excludes competitors. The Court, however, finds below that there is a material fact dispute regarding the relevant market and NAMI’s market share within that market, and it therefore does not address the parties’ direct evidence arguments at summary judgment. a. The Relevant Market “Antitrust claims often rise or fall on the definition of the relevant market.” Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d 340, 345 (8th Cir.1995). “The relevant market has two components — a product market and a geographic market.” HDC, 474 F.3d at 547. Here, the parties only dispute how to define the relevant product market. “The relevant product market is a question of fact, which the plaintiff bears the burden of proving.” Id. “The boundaries of the product market can be determined by the reasonable interchangeability or cross-elasticity of demand between the product itself and possible substitutes for it.” Id. The product market can be determined by analyzing how “consumers will shift from one product to the other in response to changes in their relative costs.” SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1278 (8th Cir.1981). “To conduct this inquiry, the courts must weigh several factors including, industry or public recognition of the products as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” HDC, 474 F.3d at 547. Insignia asserts that the relevant market is the “third-party at-shelf in-store advertising” market. According to Insignia, those three factors — advertising that is in-store, shelf-based, and provided by a third party — demonstrate unique functions and uses that cannot be achieved through the use of substitute products. Specifically, Insignia introduces evidence that in-store, point-of-purchase advertising is distinct from out-of-store advertising. For example, the industry considers out-of-store free standing inserts to be mass, untargeted advertising vehicles. (See Morris Dep., Docket No. 516, Ex. 82 at 44:4-8.) In-store advertising is distinct, Insignia argues, because it is a “significant decision influencer” and “shoppers ... are far more likely to make an in-store decision to purchase a product that has [point-of-purchase] support than a product that does not.” (POPAI Consumer Buying Habits Study, Docket No. 516, Ex. 81 at IS07176863.) Insignia also notes that at-shelf products can be distinguished even from other in-store products like checkout coupons because the “three to seven seconds when someone notices an item on a store shelf’ is “the first moment of truth” and “one of [the] most important marketing opportunities” for a manufacturer. (At The In-Store Tipping Point, Docket No. 85 at NA07-2063424.) Finally, Insignia notes that the relevant market is properly limited to third-party vendors. In particular, Insignia notes that CPGs consider TPPs to be a distinct avenue for advertising because they provide access to retailer networks and offer technical printing, graphics, and distribution capabilities. (See Overstreet Report, Docket No. 516, Ex. 3 at 41, 97; Wilkolak Tr., July 2, 2008, Ex. 83 at 48:1-51:7.) NAMI counters that the relevant market should be defined as “all in-store advertising.” NAMI further claims that its share of that market is only 10%, which NAMI argues is insufficient as a matter of law to support a Section 2 claim. NAMI also asserts that Insignia’s proposed relevant market is unsupported by the facts. First, NAMI argues that the “third-party” and “in-store” limitations too narrowly define the market, as CPGs finance both in-store and out-of-store advertising with retailers and third parties from a single promotions budget. (Drill Dep. Tr., Docket No. 476, Ex. 8 at 105-06; Overstreet Dep. Tr., Docket No. 476, Ex. 6 at 435-37.) In addition, NAMI cites a Seventh Circuit case, Menasha Corp. v. News America Marketing In-Store, Inc., 354 F.3d 661 (7th Cir.2004), for the proposition that there is no market for in-store advertising. In that case, the Seventh Circuit addressed whether the plaintiffs presented adequate evidence to support an argument that the relevant market for antitrust purposes was defined as “at-shelf coupon dispensers.” Id. at 661. The Seventh Circuit affirmed the district court’s grant of summary judgment in favor of the defendants on the basis that “no reasonable juror could find that producing a large share of at-shelf coupon dispensers confers market power.” Id. at 662. In particular, the Seventh Circuit held that “[t]he number of ways to promote a product is large, and even a stranglehold over at-shelf coupon dispensers would affect only a tiny portion of these means.” Id. at 664. NAMI argues that Insignia’s proposed market must similarly fail. Here, both parties have brought forth evidence supporting their proposed relevant markets and, given that the facts defining the relevant market are disputed, summary judgment is inappropriate. Although Menasha dealt with somewhat similar circumstances, the district court in that case had determined that the plaintiff had not come forth with sufficient evidence supporting its proposed relevant market. Menasha Corp. v. News Am. Mktg. In-Store, Inc., 238 F.Supp.2d 1024, 1029-30 (N.D.Ill.2003). In contrast, Insignia has brought forth substantial evidence highlighting the claimed unique nature of an in-store, at-shelf, third-party advertising market. See Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (stating that within broader markets, submarkets may exist for antitrust purposes and that those sub-markets “may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors”). In addition, the Court does not find that Insignia has attempted to “define the elements of the relevant market to suit its desire for high [competitor] market share, rather than letting the market define itself.” PepsiCo, Inc. v. Coca-Cola Co., 114 F.Supp.2d 243, 249 (S.D.N.Y.2000). Rather, Insignia has carefully delineated the import of point-of-purchase advertising, as contrasted with out-of-store advertising. In short, there is at least a fact question regarding whether Insignia’s proposed relevant market excludes advertising tactics or methods that are “reasonably interchangeable by consumers for the same purposes.” See E.I. du Pont, 351 U.S. at 395, 76 S.Ct. 994. The Court also notes that the mere fact that a CPG has a single promotions budget for all of its advertising— in-store or out-of-store, with retailers or third parties' — is insufficient to support a holding as a matter of law that the relevant market must be defined as “in-store advertising.” When defining an antitrust product market, “[t]he circle must be drawn narrowly to exclude any other product to which, within reasonable variations in price, only a limited number of buyers will turn.” Times-Picayune Publ’g Co. v. United States, 345 U.S. 594, 612 n. 31, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). In the context of this dispute, the Court cannot find as a matter of law that CPGs would necessarily turn to checkout coupons or other forms of in-store advertising in the absence of the availability of at-shelf advertising. Cf. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 111, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (“[I]ntercollegiate football telecasts generate an audience uniquely attractive to advertisers and ... competitors are unable to offer programming that can attract a similar audience. These findings amply support [the court’s] conclusion that the NCAA possesses market power.” (footnote omitted)). Because a material fact dispute remains regarding the definition of the relevant market, the Court turns to the consideration of whether Insignia has at least adduced evidence indicating that NAMI has a dominant share of the market as Insignia has defined it. b. Market Power NAMI contends that it is entitled to summary judgment because Insignia has not calculated NAMI’s share of the relevant market. In particular, NAMI attacks Insignia’s calculation of NAMI’s share in certain local regions. NAMI argues that the ACV calculation ignores the fact that Insignia and other competitors are present in many of those retailers and that Insignia’s 90 percent share of at-shelf signage sales dwarfs NAMI’s. In these circumstances, however, given that Insignia’s expert has provided information relating to NAMI’s share of the relevant market amongst other TPPS, and has shown that share to be substantial for the relevant time period, (Overstreet Report, Docket No. 476, Ex. 3, tbl. 2, tbl. 22), summary judgment is unwarranted. 2. Willful Acquisition or Maintenance of Monopoly Power As an initial matter, NAMI does not dispute that it enters into exclusive contracts with retailers to be the sole provider of certain advertising tactics for the duration of that contract.' Given the Court’s finding that Insignia has at least produced evidence that NAMI has market power in the relevant market, the Court concludes that evidence of NAMI’s exclusive contracts with retailers adequately raises a fact issue about whether NAMI’s conduct excluded competition in an effort to acquire or maintain monopoly power. NAMI contends, however, that Insignia’s disparagement claims cannot establish any purposeful action on NAMI’s part to maintain monopoly power because “[commercial speech is not actionable under the antitrust laws.” See Sanderson v. Culligan Int’l Co., 415 F.3d 620, 624 (7th Cir.2005). NAMI cites a Seventh Circuit opinion for the proposition that “[antitrust law condemns practices that drive up prices by curtailing output.” Id. at 623. “False statements about a rival’s goods do not curtail output in either the short or the long run. They just set the stage for competition in a different venue: the advertising market.” Id. As a consequence, NAMI asserts that the Porco Letter and related representations to CPGs about Insignia compliance rates cannot constitute anticompetitive conduct. Insignia responds that the applicable standard is found in the Eighth Circuit case, International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255 (8th Cir.1980). In International Travel Arrangers, a plaintiff-airline alleged that the defendant airline, a competitor, violated Sections 1 and 2 of the Sherman Act by employing an ad campaign falsely claiming that the plaintiffs air service to Hawaii from the Twin Cities was unreliable. See id. at 1262-63. The Eighth Circuit affirmed the district court’s award of judgment and treble damages in the plaintiffs favor, finding that the use of false advertising constituted willful maintenance of monopoly power in violation of Section 2. Id. at 1270-72. In particular, the plaintiff had alleged that the defendant’s statements caused harm to competition because the defendant made the statements with the intent to prevent the plaintiff from becoming a competitive threat. Id. at 1257-58. Generally, case law supports the proposition that a defendant’s false or disparaging statements do not cause injury to competition, and are therefore not actionable under antitrust law. See Fair Isaac Corp. v. Experian Info. Solutions Inc., 645 F.Supp.2d 734, 752-53 (D.Minn.2009). As noted by the Court in Fair Isaac Corp. v. Experian Information Solutions Inc., however, the Eighth Circuit’s decision in International Travel Arrangers describes circumstances in which false or disparaging statements are actionable under antitrust law. Id. at 753-54. The Court finds that the circumstances in International Travel Arrangers are similar to the instant case. Here, Insignia produces evidence that NAMI distributed the compliance-rate audit results with the intent to eliminate competition. A rational trier of fact could conclude that NAMI’s allegedly false and misleading representations about Insignia and FGI in the Porco letter and in statements by NAMI sales representatives “contributed to the willful maintenance” of NAMI’s alleged monopoly power by preventing Insignia, FGI, and other competitors mentioned in the audit from being a competitive threat to NAMI. See Int’l Travel Arrangers, 623 F.2d at 1270. The Court notes that International Travel Arrangers may be distinguishable on its facts because the defendant in that case was an established market competitor that directed disparaging comments at a new entrant to the market. The Court finds, however, that because there is sufficient evidence NAMI had relatively few competitors in Insignia’s proposed market, NAMI’s alleged misrepresentation of those competitors’ compliance rates could cause harm to competition. Accordingly, NAMI’s allegedly disparaging statements may establish a claim under Section 2 of the Sherman Act. 3. Monopsony Power over Retailers The Court concludes, however, that NAMI is entitled to summary judgment on the question of monopsony power over retailers. “Monopsony power is market power on the buy side of the market. As such, a monopsony is to the buy side of the market what a monopoly is to the sell side and is sometimes colloquially called a ‘buyer’s monopoly.’ ” Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312, 320, 127 S.Ct. 1069, 166 L.Ed.2d 911 (2007) (citation omitted). Here, the Court agrees with NAMI that Insignia has not demonstrated that NAMI has monopsony power over retailers. Indeed, Insignia’s expert, Dr. Overstreet, indicated that he did not believe that NAMI had monopsony power, (Overstreet Dep. Tr., Docket No. 476, Ex. 6 at 266-67), and summary judgment must be granted as to Insignia’s monopsony claims. See Weyerhaeuser, 549 U.S. at 317-324, 127 S.Ct. 1069. 4. Attempted Monopoly To prevail on a claim of attempted unlawful monopolization, Insignia must prove “(1) a specific intent by the defendant to control prices or destroy competition; (2) predatory or anticompetitive conduct undertaken by the defendant directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success.” Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 801 (8th Cir.1987). “The specific intent element requires proof that the defendant intended his acts to produce monopoly power”; that is, that the defendant intended “to control prices or to restrain competition unreasonably.” Id. As an initial matter, the parties do not appear to substantively address the merits of Insignia’s attempted monopoly claims, but rather focus on the question of whether Insignia established a claim for monopoly. Regardless, for the reasons discussed supra, Insignia has adduced sufficient evidence that NAMI intended to damage competition and that NAMI engaged in anticompetitive conduct by entering into exclusive dealing arrangements with retailers and disseminating allegedly disparaging reports about its competitors’ compliance rates. (See generally Insignia Mem. in Opp’n to Mot. for Summ. J., Docket No. 515 at 33-35.) The Court concludes that there is sufficient evidence indicating that NAMI had a dangerous possibility of success: retailers were concerned about breaching exclusive contracts with NAMI, and retailers were withdrawing support for Insignia POPSigns based on alleged compliance issues. Accordingly, the Court denies NAMI’s motion to the extent it addresses Insignia’s attempted monopoly claims under Section 2 of the Sherman Act and Minnesota Statute § 325D.52. E. Unlawful Exclusive Dealing and Unlawful Boycott To establish a claim under Section 1 of the Sherman Act, Section 3 of the Clayton Act, or Minnesota Statute §§ 325D.51 and 325D.53, a plaintiff must demonstrate “(1) that there was a contract, combination, or conspiracy; (2) that the agreement unreasonably restrained trade under either a per se rule of illegality or a rule of reason analysis; and (3) that the restraint affected interstate commerce.” See Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 5 F.Supp.2d 694, 703 (D.Minn.1998) (Sherman Act § 1); see also Minn. Mining & Mfg. Co. v. Appleton Papers, Inc., 35 F.Supp.2d 1138, 1142-43 & n. 2 (D.Minn.1999) (analyzing claims under Section 3 of the Clayton Act and the Section 1 of the Sherman Act together); Howard, 636 N.W.2d at 557 (stating that Section 1 of the Sherman Act is analogous to Minnesota Statutes §§ 325D.51 and 325D.53). 1. Contract, Combination, or Conspiracy “The antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that [the defendant] and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). To demonstrate a contract, combination, or conspiracy under Section 1 of the Sherman Act or Section 3 of the Clayton Act, a party need only show that there was concerted, as opposed to unilateral, action. Minn. Ass’n of Nurse Anesthetists, 5 F.Supp.2d at 703. Here, NAMI concedes that it entered into contracts with retailers for retail exclusivity, which is sufficient to establish a contract or conspiracy for the purposes of Insignia’s exclusive dealing claims. See Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 208 F.3d 655, 660-61 (8th Cir.2000) (examining sole-source or exclusive dealing contracts under the rule of reason). Insignia contends that the practical effect of NAMI’s exclusive agreements with retailers is that “when a CPG buys an in-store advertising product from NAM, NAM’s retailer exclusivity will prevent that CPG from purchasing a competing product from Insignia or FLOORgraphics.” (Insignia’s Mem. in Opp’n to Mot. for Summ. J., Docket No. 515 at 27.) Here, NAMI does not distinguish the evidence necessary to establish a conspiracy for unlawful exclusive dealing from the evidence necessary to establish a conspiracy for unlawful boycott. Indeed, NAMI only states in its memorandum in support of its motion: “There is no evidence of unlawful conspiracy between News America and any retailer or group of retailers.... ” (Mem. in Supp. of Mot. for Summ. J., Docket No. 473 at 37.) NAMI then cites case law, and proceeds to conclude, “Insignia has presented no evidence that News America engaged in the alleged conduct or that any such conduct was not unilateral.” (Id. at 38.) Regardless, in addition to finding that Insignia may survive summary judgment on its claims relating to unlawful exclusive dealing, the Court finds Insignia has adduced adequate circumstantial evidence of a concerted agreement among NAMI and retailers. (Insignia Mem. in Opp’n to Mot. for Summ. J., Docket No. 515 at 23-25 (describing circumstantial evidence).) 2. Unreasonable Restraint on Trade and the Rule of Reason “Exclusive dealing contracts are analyzed under the rule of reason.” Minn. Ass’n of Nurse Anesthetists, 208 F.3d at 660. When assessing the legality of a restraint on trade under the rule of reason, the Court focuses on whether the defendant’s conduct had detrimental effects on competition. Flegel, 4 F.3d at 688; see also Eastman Kodak, 504 U.S. at 467, 112 S.Ct. 2072 (noting that a court’s rule of reason analysis focuses on the “particular facts disclosed by the record”) (internal quotation marks omitted). A plaintiff may demonstrate detrimental effects in two ways: by delineating “a relevant market and show[ing] that the defendant has enough market power to significantly impinge on competition” or by demonstrating “that the challenged practice has actually produced significant anti-competitive effects.” Minn. Ass’n Nurse Anesthetists, 5 F.Supp.2d at 706-07; see also F.T.C. v. Ind. Fed’n of Dentists, 476 U.S. 447, 460-61, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986) (“Since the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition, proof of actual detrimental effects, such as a reduction of output, can obviate the need for an inquiry into market power, which is but a surrogate for detrimental effects.” (internal quotation marks omitted)). “Either showing — market power or actual detrimental effects — shifts the burden to the defendant to demonstrate pro-competitive effects.” Flegel, 4 F.3d at 688. “If the defendant satisfies this burden, the burden then shifts back to the plaintiff to demonstrate that any legitimate objectives could be achieved through substantially less restrictive means.” Minn. Ass’n Nurse Anesthetists, 5 F.Supp.2d at 707. “The court then weighs the benefits and detriments to determine if the conduct is reasonable on balance.” Id. (internal quotation marks omitted). As discussed supra, there is a factual dispute regarding NAMI’s market power in the relevant market. Under this analysis, the burden therefore shifts to NAMI to demonstrate procompetitive effects of the exclusive contracts. NAMI argues that its exclusive contracts are procompetitive and therefore do not harm competition. Specifically, NAMI asserts that CPGs benefit from retail exclusivity because CPGs can ensure that, by contracting with TPPs that have exclusivity contracts with retailers, only the CPG’s product is promoted by a particular advertising tactic at a specific time in retail stores. (Simcox Dep. Tr., Docket No. 476, Ex. 9 at 32.) NAMI also argues that retailers benefit from retail exclusivity because it reduces clutter in their stores and creates administrative efficiencies by requiring the retailer to deal with only one provider. (Kroger Dep. Tr., Docket No. 476, Ex. 20 at 154.) Further, NAMI notes that entering into exclusive contracts with retailers is a standard and accepted industry practice, and that NAMI’s exclusive contracts comport with that practice. (See Overstreet Dep. Tr., Docket No. 476 Ex. 6 at 271-72 (noting that FGI also has exclusive contracts with retailers)); see also Trace X Chem., Inc. v. Canadian Indus., Ltd., 738 F.2d 261, 266 (8th Cir.1984) (“Acts which are ordinary business practices typical of those used in a competitive market do not constitute anti-competitive conduct[.]”). Insignia argues, however, that the pro-competitive benefits of the exclusive contracts are outweighed by the harm to competition. That is, Insignia claims that “the competition foreclosed by the contract ... constitute^] a substantial share of the relevant market.” See Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 328, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961). NAMI argues that Insignia has not established that NAMI’s competitors have been foreclosed from competing. NAMI argues that Insignia still competes against NAMI and wins business; that Insignia is able to place in-store tactics at stores that have “carve-out” provisions in their NAMI contracts; that Insignia may compete for retailers with which NAMI does not have contracts; and that Insignia remains free to compete for business with non-grocery retailers. Moreover, NAMI asserts that it is undisputed Insignia accounted for 90 percent of revenue generated in 2007 from sales of price signs like POPSigns and Price POPS. (Murphy Report, Docket No. 476, Ex. 1, at Ex. 3.) Finally, NAMI contends that Insignia’s calculations of foreclosure percentages, which are based on ACV, are misleading because ACV fails to account for situations in which both NAMI and Insignia do business in the same retail store. “The principle [sic] criteria used to evaluate the reasonableness of a contractual arrangement include the extent to which competition has been foreclosed in a substantial share of the relevant market, the duration of any exclusive arrangement, and the height of entry barriers.” Concord Boat, 207 F.3d at 1059. As the Third Circuit has noted, “[t]he test is not total foreclosure, but whether the challenged practices bar a substantial number of rivals or severely restrict the market’s ambit.” United States v. Dentsply Int’l, Inc., 399 F.3d 181, 191 (3d Cir.2005). Here, Insignia’s evidence that it and other competitors have been foreclosed is sufficient to survive summary judgment. Insignia points to evidence indicating that NAMI’s primary competitors, Insignia and FGI, are foreclosed from a substantial share of the relevant market. “Generally speaking, a foreclosure rate of at least 30 percent to 40 percent must be found to support a violation of the antitrust laws.” Minn. Mining & Mfg., 35 F.Supp.2d at 1143. Insignia contends that, as a function of ACV, NAMI’s retailer contracts foreclose competitors’ abilities to contract with retailers in up to 90 percent of grocery store opportunities in Tampa, Florida; 80 percent of grocery store opportunities in the Washington D.C. and Baltimore areas; and almost two-thirds of grocery store opportunities in Boston, Charlotte, Dallas, Los Angeles, New York, and Philadelphia. (Overstreet Rep. Docket No. 516, Ex. 3, tbl. 16.) Insignia further asserts that NAMI’s annual revenue for placements of in-store pro