Full opinion text
MEMORANDUM OPINION AND ORDER DAVID H. COAR, District Judge. Plaintiffs have filed suit on behalf of a class of sulfuric acid consumers against several producers of the commodity (collectively “Defendants”) for violations of § 1 of the Sherman Act, 15 U.S.C. § 1. Plaintiffs allege that Defendants engaged in anticompetitive behavior by conspiring to reduce the output and fix the price of sulfuric acid in Canada and the United States. In furtherance of the conspiracy, American Defendants GAC Chemical Corporation (“GAC”), Boliden Intertrade Holdings, Inc. (“Boliden”), Pressure Vessel Services, Inc. (“PVS”), Koch Industries Inc. (“Koch”), E.I. du Pont de Nemours and Company (“DuPont”), Marsulex, Inc., (“Marsulex”), and Chemtrade Logistics, Inc. (“Chemtrade”) allegedly shut down or curtailed production in their respective facilities in favor of purchasing acid from Canadian Defendants Noranda, Inc. (“Noranda”) or Falconbridge Ltd. (“Falcon-bridge”). Plaintiffs also allege that Defendants Noranda, Falconbridge, and DuPont operated an illegal price fixing and output restriction agreement under the label of Noranda DuPont, LLC (now “Norfalco”), a joint venture. Plaintiffs’ cases were consolidated and transferred to this Court by the Multidistrict Litigation Panel on July 1, 2003. The Court certified Plaintiffs’ class on March 21, 2007, 2007 WL 898600. Before this Court are motions for summary judgment brought by Defendants GAC [413], Noranda [418], Boliden [422], Falconbridge [426], PVS [430], Norfalco [433], and Koch [439], All Defendants join in each other’s motions. For the reasons stated below, the motions of Defendants Noranda, Boliden, PVS, Norfalco, and Koch are DENIED. Defendant Falcon-bridge’s motion is DENIED in part and GRANTED in part. The Court GRANTS Defendant GAC’s motion for summary judgment. FACTS The instant action centers on allegedly anticompetitive behavior that took place in the sulfuric acid market in Canada and the United States from 1988 through 2001. A. Parties 1. The named Plaintiffs are Ohio Chemical Services, inc., Independent Chemical Corporation, National Alum Corporation, Producers Chemical Company, Old Bridge Chemicals, Inc., and AG RX. Each claims to have purchased sulfuric acid directly from one or more of the Defendants or their alleged co-conspirators. 2. The Defendants are Norfalco, Noranda, Faleonbridge, PVS, GAC, and Koch. Defendants Noranda and Faleonbridge, both located in Canada, were at all relevant times in the mining business, and were involuntary producers of sulfuric acid as a consequence of their metal smelting activities. The other Defendants were at various times in the business of manufacturing, marketing, selling, or distributing sulfuric acid in the United States. 3. Defendants who have already reached settlement with Plaintiffs include DuPont, Marsulex, and Chemtrade. B. Jurisdiction 4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337 and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26. 5. Plaintiffs also allege that personal jurisdiction over the defendants comports with the United States Constitution. Plaintiffs allege that venue is proper in this District pursuant to Sections 4 and 12 of the Clayton Act, 15 U.S.C. § 15(a) and 22, and 28 U.S.C. § 1391(b), (c) and (d) based upon their allegations that Defendants resided, transacted business, were found or had agents in this District and because of their allegations that a substantial part of the events giving rise to their claims occurred, and a substantial portion of the allegedly affected interstate trade and commerce was carried out, in this District. C. Procedural History 6. Sulfuric acid consumers filed a variety of suits in United States federal courts, many of which were consolidated and transferred to this court by the Multidistrict Litigation Panel on July 1, 2003. On motion of the Plaintiffs, this Court certified a class on March 21, 2007, made up of: All persons (excluding federal, state, and local governmental entities and political subdivisions, the Defendants, and their respective parents, subsidiaries and affiliates) who purchased sulfuric acid in the United States directly from one or more of the Defendants or their parents, subsidiaries, affiliates, or joint ventures during the period January 1, 1988 through January 16, 2003. 7. Plaintiffs allege they purchased sulfuric acid directly from one or more of the defendants in this case. D. Sulfuric Acid Industry Generally 8. Sulfuric acid is an extremely corrosive chemical used in many industrial processes. The largest use of sulfuric acid in North America is to manufacture fertilizer, which is made by combining acid with phosphates. Sulfuric acid is also an input in numerous industrial products and manufacturing processes. For example, it is used in kraft pulp bleaching to make chlorine dioxide, a bleaching agent, and to make titanium dioxide. (Falcon-bridge Rule 56.1 Statement of Facts (“SOF”) ¶¶ 4,13,14) 9. Sulfuric acid is generally produced in one of two ways: voluntarily, in a process of burning elemental sulfur, or involuntarily, as a by-product from the smelting of ores into metals such as copper and zinc. (Noranda SOF ¶ 4.) 10. The marginal cost to a voluntary producer of sulfuric acid is generally the cost of the sulfur and the cost of operating the plant, net of a credit for any by-product energy generated during the manufacturing process. (Noranda SOF ¶ 7.) 11. The process of smelting ores into metals generates sulfur-containing gases, which environmental laws require to be recaptured, resulting in the “involuntary” production of sulfuric acid. There is a dispute as to how to characterize the marginal cost to smelters of producing involuntary sulfuric acid. (PI. Response, Noranda SOF ¶ 8.) 12. Because there are no commercially viable methods for disposing of or storing sulfuric acid, smelting operations producing acid have no reasonable alternative to selling it. A smelter runs the risk of a forced shut down of its smelting operations if it is unable to sell enough sulfuric acid to avoid exceeding its storage capacity. (Falconbridge SOF ¶¶ 7, 8,10.) 13. The costs of shutting down a smelter are quite high. (Falconbridge SOF ¶ 11.) 14. The cost of transporting sulfuric acid is large compared to its value. (Falconbridge SOF ¶ 12.) 15. The demand for sulfuric acid is driven for the most part by the demand for the products in which it is used as an input. There are frequently no close substitutes for acid in these products. (Falcon-bridge SOF ¶¶ 15,16.) 16. However, the demand for acid is not always responsive to the price of acid. Also, the value of sulfuric acid in relation to the value of the product in which it serves as an input is small. (Falconbridge SOF ¶¶ 16,17.) 17. In the 1980s, environmental legislation designed to prevent acid rain forced smelting companies to capture an increased amount of sulfuric acid as a result of their smelting processes. (GAC SOF ¶ 21.) 18. Acid pricing eroded in the early 1990s due to the abundance of smelter acid in the market. (GAC SOF ¶ 46.) E. Noranda’s Sulfuric Acid 19. Noranda’s core smelting operations produce base metals, such as nickel, copper, or zinc. Sulfuric acid is not part of Noranda’s core business. (Noranda SOF ¶ 9, 18, 20.) 20. During the 1980s, Noranda had to deal with an increased amount of sulfuric acid from its smelting processes, due in part to stricter environmental regulations for the prevention of acid rain. Regulations required the recapture of sulfur containing gases from the smelting process, which were converted to sulfuric acid. (Falconbridge SOF ¶ 18.) 21. In the mid-1980s, Noranda made plans for a new sulfuric acid plant at its Horne smelter, designed to produce hundreds of thousands of additional tons of sulfuric acid per year. (Noranda SOF ¶ 16.) 22. The supply of acid in Eastern Canada, where Noranda’s smelters were located, was greater than the local demand. (Falconbridge SOF ¶ 19.) 23. Noranda retained an outside consultant to investigate the market opportunities for the new sulfuric acid recovery system to be built at its Horne smelter. The result was a June 1985 report by Manderson Associates, Inc., entitled Sulphur & Sulphuric Acid: Long Range Outlook for World and Regional Supply, Demand, Costs, and Prices with Emphasis on the Market Opportunities for By-Product Sulphuric Acid that May be Produced at Noranda’s Smelter at Noranda, Quebec. (Noranda Ex. 6 (“Manderson Report”).) 24. The Manderson Report noted that, because of freight costs, the net-back price from the sale of sulfuric acid from Noranda’s new Horne sulfuric acid recovery plant to the U.S. market would be lower than the netbacks of “most (and possibly all) other locations that produce and market smelter acid in the U.S.” (Manderson Report at 182.) 25. As used in the industry, the term “netback” or “Net Back” refers to the return on a sale net of freight costs. 26. The Report also stated that the likelihood of low net-backs from sales to the United States “suggests that Noranda would, at best, be only temporarily successful by cutting prices to gain market entry, especially against other producers of non-discretionary sulphuric acid. Moreover, there is the added danger that predatory pricing of Canadian acid would cause U.S. producers to lodge a complaint of dumping, which (if sustained) could trigger the assessment of an import tariff or other restrictions on acid movements from Canada into the U.S.” (Id. at 182-83.) 27. The Report concluded that “the most prudent marketing approach would be for Noranda to work with existing U.S. producers of discretionary (sulphur-based) acid who, because of declining margins or other reasons, are willing to shut or throttle down their existing acid production in exchange for purchasing smelter acid. DuPont recently followed this tactic in the Chicago market — by closing its local plant in Chicago Heights and becoming a marketer of smelter acid from Arizona. Such a move helps to preserve the existing price structure, because the existing local marketer(s) would continue not only to maintain contact with the customer(s) but also to provide delivery and related services.” (Id. at 188.) 28. In estimating the sales prospects in the United States for Noranda’s new Horne sulfuric acid plant, the Manderson Report “assumed that Noranda would pursue a sales philosophy of working with local acid marketers-producers, who would supplement part or all of their acid requirements through outside purchase. Their idled plants would therefore serve as standby, if disruptions in supply of smelter acid take place.” Id. at 16. The Report noted the Midwest and North Central U.S. as potentially attractive areas for the sale of acid. (Id. at 183.) 29. On October 18, 1985, the Canadian federal government solicited a meeting with Noranda to discuss a variety of topics with Noranda and the author of the Manderson Report. The topics included Noranda’s “marketing strategy” for sulfuric acid, and whether there were “producers-sellers” that were “likely candidates” for the arrangements discussed in the report. (Noranda SOF ¶ 30.) F. Noranda’s entrance into U.S. markets 30. U.S. trade laws sanction imports that compete with American products if the American producers can make a case that prices are too low, a condition called “dumping.” (Noranda SOF ¶ 31.) 31. Noranda was concerned that selling its acid directly to end-user consumers in the United States would put it at risk of an anti-dumping action brought by voluntary producers of sulfuric acid. (Noranda SOF ¶ 31.) 32. Noranda knew that certain voluntary producers in the U.S. had old and inefficient production facilities. As of the mid-1980s, “[m]ost of the acid plant capacity outside of the southeastern U.S. [was] from units which [were] fifteen years or older.” (Manderson Report at 12.) 33. Noranda Sales Corporation, Noranda’s wholly-owned sales and marketing subsidiary, proposed a strategy called “displacement by agreement,” whereby Noranda would sell sulfuric acid to voluntary producers at a price lower than the costs of manufacturing the acid. (Def. Response, PL SOF ¶ 12.) 34. There is significant dispute as to promises and understandings beyond the face of Defendants’ sales contracts. The primary dispute among the parties is whether Noranda required producers to shut down or curtail acid production as a condition of entering these agreements, and whether the purpose of these agreements was to stabilize prices, control industry output, and prevent competition. 35. During the relevant time, Noranda also sold through resellers and to end-user customers in the United States. (Noranda SOF ¶ 41.) G. PVS Involvement 36. Plaintiffs allege that Noranda and PVS entered into agreements to shut down PVS’s sulfuric acid production facilities in Copley, Ohio, and Bay City, Michigan, thereby reducing the total amount of acid in the marketplace by 100,000 metric tons annually. (Compl. ¶¶ 38, 44.) 37. PVS operated a sulfur burner in Copley, Ohio, that had been built in the early 1970s. (PL Response, PVS SOF ¶ 16.) 38. In 1987, PVS conducted a make-or-buy analysis to determine whether to continue producing sulfuric acid at Copley or obtain its requirements from another source. (PVS SOF ¶ 20.) In addition to Noranda, PVS considered Phelps Dodge, Kennecott, Monaca, and Asarco as potential suppliers. (PVS SOF ¶ 25.) 39. PVS ultimately determined that it would shut down the Copley plant’s sulfuric acid manufacturing process and purchase the sulfuric acid it needed to service its customers. (PVS SOF ¶ 26.) 40. PVS executive, Donald Sosnoski, wrote regarding the prospect of a distribution contract with Noranda: “As I understand the market circumstances in Ohio, our choices are not between running the plant or proceeding with the unit train proposal. Rather, they are apparently between proceeding with the unit train proposal or gradually shutting down the plant and getting out of the sulfuric acid market in Ohio. Apparently, the Noranda acid is destined for the Ohio market, and if we don’t control it, someone else will. The latter would apparently result in depressed prices and make it uneconomical to operate the plant.” Noranda Ex. 36 (3/1/88 Sosnoski Mem.) at 3. 41. PVS and Noranda entered into a contract whereby PVS agreed to purchase an estimated 60,000 tons of sulfuric acid annually from Noranda. (PVS SOF ¶ 40.) 42. The agreement between Noranda and PVS-Copley includes a revenue sharing provision. (PVS Ex. 31, Copley Contract at ¶ 13.) 43. PVS acquired its Bay City, Michigan sulfuric acid plant on or around April 30, 1976, in order to supply one principal customer, Dow Chemical, in Midland, Michigan. The plant was built many years before then. (PVS SOF ¶ 42.) 44. After the loss of Dow Chemical as a customer, the Bay City sulfuric acid facility principally supplied PVS in Detroit, Michigan. (PVS SOF ¶ 44.) 45. The additional freight costs of transporting acid over more than 100 miles to Detroit, combined with the plant’s old age and inefficiency, made the Bay City operations economically unsound. (PVS SOF ¶¶ 44, 45.) 46. At some point, PVS considered purchasing its sulfuric acid requirements from smelting companies, rather than continuing to manufacture acid at Bay City. (PVS SOF ¶ 47.) 47. PVS assessed the possibility of purchasing acid from Phelps Dodge, Asarco, Kennecott, Inco, Noranda, or Falconbridge. (PVS SOF ¶ 47.) 48. A formal analysis conducted in June 1990 favored purchasing acid from Noranda. (PVS SOF ¶¶47, 48.) 49. On August 1, 1990, PVS entered into a contract with Noranda for the sale and delivery of PVS’s sulfuric acid requirements to its Detroit facility, in the amount of 40,-000 tons of acid annually. (PVS SOF ¶ 54.) 50. The Bay City plant shut down in 1990. (PVS SOF ¶ 52.) H. GAC Involvement 51. Plaintiff alleges that Delta Chemicals, Inc. (“Delta”) coordinated with Noranda to shut down its sulfuric acid plants. The shutdowns allegedly removed 60,000 to 70,000 tons of annual capacity from the sulfuric acid market. (Compl. ¶ 40.) 52. Delta operated two acid plants at its Searsport facility from which it manufactured acid for sale to customers. (GAC SOF ¶ 7.) 53. At some point in the 1980s, when sales of sulfuric acid began to outpace Delta’s manufacturing ability, the company began purchasing acid from third parties like Noranda to satisfy customer demand (GAC SOF ¶ 9, 28.) 54. Delta had environmental problems at the Searsport sulfuric acid facility starting as early as 1977. (GAC SOF ¶¶ 10,11.) 55. In light of the costs required for environmental compliance, Delta performed a make-or-buy analysis to determine whether it would be more economical to continue producing sulfuric acid at Searsport, or instead buy 100% of Delta’s acid requirements from a third party. (GAC SOF ¶ 15.) 56. Negotiations began between Delta and Noranda over the purchase of Delta’s acid requirements. (GAC SOF ¶ 12.) On October 6,1989, the companies entered into a contract for the sale by Noranda to Delta of “the total requirement of sulphuric acid by internal consumption at and sales from [Delta’s] Searsport facility.” (GAC SOF ¶ 39, 40; GAC Ex. 23 at p. 2.) 57. The Delta Contract stated that purchases would begin “no later than November 1, 1989, and continue to December 31, 1996, and thereafter from year after year subject to the right of termination.... ” (GAC Ex. 23 at p. 6.) 58. The “revenue sharing” provision between Noranda and Delta provides that “any increase or decrease in Gross Margin [on Delta’s sales to its customers] ... shall be shared equally” by Noranda and Delta. 59. By their terms, the revenue-sharing agreements relate only to the distribution of Noranda’s product. 60. Delta shut down of the Searsport facility in 1988. (GAC SOF ¶ 42.) 61. On or about March 8, 1994, GAC purchased the assets of Delta for $8.02 million, subject to certain adjustments, pursuant to an Asset Purchase Agreement of that date. (GAC Ex. 26.) 62. Delta and GAC survived as separate entities. (GAC Ex. 26 ¶ 1.2, 1.3, 2.2,11.1,11.2.) 63. Paragraph 2.2 of the Asset Purchase Agreement provides that, except for certain specific “Assumed Liabilities,” GAC “shall in no event assume or be responsible for any liabilities, liens, security interests, claims, obligations, or encumbrances of [Delta].” (GAC Ex. 26 ¶ 2.2.) 64. When GAC acquired Delta’s assets, the Searsport facility was not valued in or considered as part of the acquisition. Delta’s Searsport plants were inoperable and incapable of producing sulfuric acid. Many of its components had rusted or were missing. (GAC SOF ¶ 54, 55.) 65. On or about March 19, 1995, Noranda and GAC agreed to revise the pricing for the balance of their 1995 sales, as well as develop a long-term, post-1995 contract. (GAC SOF ¶ 59.) 66. On March 1, 1996, GAC entered into a new sulfuric acid supply contract with Noranda. (GAC SOF ¶ 60; GAC Ex. 28.) 67. The GAC Contract does not have any “revenue sharing” provisions, customer allocation provisions, or territorial restriction provisions. (GAC SOF ¶ 61; GAC Ex. 28.) 68. At some point, GAC later contracted with the Noranda DuPont Joint Venture for the supply of sulfuric acid. PL SOF ¶ 38. I. Koch Involvement 69. Plaintiffs allege that, pursuant to agreements with Noranda, Koch Sulfur Products Company or Koch Sulfur Products Company, LLC (collectively “Koch”) closed or scaled back production its sulfuric acid plants, thus removing supply from the market. (Compl. ¶ 41.) 70. Koch operated various sulfuric acid production facilities until 2002, when it completed its exit from the sulfuric acid business. Koch also marketed another company’s sulfuric acid by-product and operated terminals for the receipt and storage of acid purchased for resale or produced internally. (Koch SOF ¶¶ 7, 8.) 71. Koch operated at a relatively small scale compared to the total amount of U.S. sales of sulfuric acid. (Koch SOF ¶ 13.) Its production of sulfuric acid fluctuated every year at each of its facilities. (Koch SOF ¶ 9.) 72. From 1988 to 1990, Koch sought to expand its sulfuric acid trading business. It was able to do so by purchasing additional sulfuric acid from other sources (both voluntary producers and involuntary smelter producers, including those located in Europe) and reselling it in the marketplace. (Koch SOF ¶¶ 10, 23.) 73. Koch closed two sulfuric acid plants during the 15-year putative class period. (Koch SOF ¶ 17.) 74. Koch purchased the Acme, North Carolina plant in 1990 and closed it in 1991. (Koch SOF ¶ 18.) 75. Koch leased the DeSoto, Kansas facility from the United States Army. The DeSoto plant ceased manufacturing sulfuric acid at in June 1999. (Koch SOF ¶¶ 20, 21, 29.) 76. At some point, Koch internally discussed and compared its cost of production to its cost of purchasing sulfuric acid from others, including Noranda. (Koch SOF ¶ 24.) 77. Discussions took place in 1998 and 1999 between Koch and the Noranda DuPont Joint Venture, in which Koch negotiated to buy sulfuric acid from the joint venture. (Koch SOF ¶ 27.) 78. The explicit terms of any of Koch’s agreements with Noranda or Noranda DuPont never included revenue sharing provisions, territorial allocations, customer restrictions, conditions that Koch purchase all its requirements from the seller, or any restrictions on what Koch would charge in the event it resold the acid it purchased. (Koch SOF ¶ 14.) J. Noranda/Falconbridge Ownership 79. Falconbridge’s core products were nickel and copper, not sulfuric acid. (Noranda SOF ¶ 19.) 80. Alex Balogh, previously of Noranda Copper, became President of Falconbridge in 1989. (Falconbridge SOF ¶ 21.) 81. From 1994 through 2001, Balogh served as both the Chairman of Falconbridge’s Board of Directors and the Deputy Chairman of Noranda’s Board of Directors. (Falconbridge SOF ¶ 25.) 82. From 1989 through 2003, Noranda had more members on Falcon-bridge’s Board of Directors than any other single entity. (Falcon-bridge SOF ¶ 24.) 83. From 1989 until June 1994, Noranda owned 50% of Falconbridge. Trelleborg AG (“Trelleborg”) owned the other half. (Falcon-bridge SOF ¶ 43, Noranda SOF ¶ 3.) 84. In 1994, Trelleborg sold a large percentage of its shares to the public. Its holding in Falconbridge was reduced to 28%, leaving Noranda (with 46.4%) as Falcon-bridge’s largest shareholder. (Falconbridge SOF ¶ 22.) 85. Between 1994 and 2000, Noranda owned between 46.3% to 54.9% of the company, though it only became a majority shareholder after July 19, 2000. (PI. Ex. 9, 268.) During this period, the remaining shares of Falconbridge were publicly owned with no significant shareholder other than Noranda. (Falconbridge SOF ¶ 23.) 86. Between 2000 and 2003, Noranda’s ownership interest ranged from 54.9% and 59.5%, with no other shareholder owning a significant interest. (Falconbridge SOF ¶ 26.) 87. Since July 1, 1994, Falconbridge’s financials have been fully consolidated in Noranda’s consolidated financial statements. (Falconbridge SOF ¶ 28.) 88. In 2000, Noranda and Falcon-bridge began to integrate a number of departments and business units in order to achieve managerial and operational cost-efficiencies. (Falconbridge SOF ¶ 29.) 89. In June 2005, Noranda and Falcon-bridge merged and the former Noranda and Falconbridge now form one company, under the name of Falconbridge Limited. (Falcon-bridge SOF ¶ 30.) 90. Noranda and Falconbridge were viewed by the market as one single entity. (Falconbridge SOF ¶ 31.) K. Noranda/Falconbridge Sales Relationship 91. Due in part to stricter environmental regulations during the 1980s, Falconbridge also had to contend with increased amounts of sulfuric acid from its smelting operations. (Falconbridge SOF ¶ 18.) 92. Falconbridge did not have experience in selling sulfuric acid to end users. (Falconbridge SOF ¶ 34.) 93. Noranda had experience marketing its metals directly, as well as in marketing its sulfuric acid in the United States through a group of distributors. Noranda conducted these marketing activities through Noranda Sales Corp., its wholly-owned sales and marketing subsidiary. (Falconbridge SOF ¶ 35.) 94. On March 1,1990, Falconbridge appointed Noranda Sales to be its sales agent for the sale of zinc, copper, gold, silver, cadmium, and zinc and copper concentrates. (Falconbridge SOF ¶ 36.) 95. ' In April 1991, Falconbridge appointed Noranda as its sole sales agent responsible for the sales, marketing and distribution of the sulfuric acid that Falconbridge produced as a consequence of its smelting activities. (Falconbridge SOF ¶ 37.) 96. After the agency appointment, Noranda handled the sales and marketing of Falconbridge’s sulfuric acid until the agency relationship for the sale of acid in the United States terminated in 1998 with the formation of the Noranda DuPont Joint Venture. (Falconbridge SOF ¶ 38.) 97. This agency agreement streamlined the marketing and sale of sulfuric acid produced by the Noranda/Falconbridge system. It was also desirable because Falconbridge did not have a marketing organization for its own acid. (Falconbridge SOF ¶ 39.) 98. In the agency arrangement between Noranda and Falconbridge, Falconbridge retained the title to and ownership of the acid, including the ultimate risk of non-sale of the acid. (Falconbridge SOF ¶ 42.) L. Noranda DuPont Joint Venture 99. In an effort to optimize the distribution of Noranda-Falconbridge sulfuric acid, the companies considered forming a joint venture with a distributor. The companies believed that the arrangement would eliminate third-party commissions and increase certainty that their by-product acid would be shipped and sold. (Norfalco SOF ¶¶ 10, 12, 13.) 100. Noranda considered several existing distributors as potential joint venture candidates, assessing them for attention to safety, environmental standards, distribution expertise, infrastructure, and access to markets. (Norfalco SOF ¶ 14.) 101. Concerned about antidumping actions by American acid producers, Noranda also considered whether the potential joint venture partner could offer protection from an antidumping action. (Norfalco SOF ¶ 15.) 102. DuPont was the candidate that received the highest overall ranking in Noranda’s evaluation of the strength of potential joint venture partners. (Norfalco SOF ¶ 16.) 103. DuPont saw a joint venture with Noranda as an opportunity to grow its business, by gaining access to substantially higher volumes of product than DuPont could achieve on its own. (Norfalco SOF ¶ 17.) 104. Noranda and Falconbridge hoped to achieve numerous efficiencies through a joint venture with DuPont, including an opportunity to generate savings on freight costs and to supply customers from plants in multiple locations. (Norfalco SOF ¶¶ 19, 20.) 105. A “white paper” drafted by DuPont projected that DuPont would contribute leased transportation equipment, terminal agreements, market access, and technical and business expertise to the Joint Venture, while Noranda would contribute transportation equipment and technical and business expertise. Both partners would contribute their output of non-fuming sulfuric acid. (Norfalco SOF ¶ 18, 2/6/98 DuPont White Paper, Ex. 15.) 106. In the fall of 1997, Noranda and DuPont hired the independent accounting firm Deloitte & Touche to assist in evaluating the potential economic benefits of a joint venture. The firm was hired so that each party’s competitively sensitive information would be kept from the other party. (Norfalco SOF ¶ 24.) 107. Noranda and DuPont asked Deloitte & Touche to estimate the value gained by forming a direct sales joint venture instead of paying intermediaries (i.e., resellers) to distribute sulfuric acid. Deloitte & Touche foresaw “an average gross [profit] margin of U.S. $9.49 per short ton for direct shipments and U.S. $5.95 per short ton for shipments through terminals.” (Norfalco SOF ¶ 25, 12/1/97 D & T Letter, Ex. 19.) 108. On April 13, 1998, Noranda and DuPont executed a Letter of Understanding regarding the formation of the joint venture, to be named Noranda DuPont LLC (“Noranda DuPont” or “Joint Venture”). Therein, Noranda and DuPont proposed to “assign certain agreements to [the] LLC, including but not limited to reseller agreements, railcar leases, terminal agreements, vessel charter parties, barge leases and truck destination agreements, and to transfer certain other assets to” the Joint Venture. (Norfalco SOF ¶ 26, 4/13/98 Letter of Understanding, Ex. 21. at ND00087881.) 109. On April 15, 1998, the Joint Venture’s Certificate of Formation as a limited liability company was filed in the office of the Secretary of the State of Delaware. (Norfalco SOF ¶ 27.) 110. On June 22, 1998, Noranda and DuPont entered into a short-form Limited Liability Company Agreement. Shortly thereafter, Noranda and DuPont entered into an Amended and Restated Limited Liability Company Agreement, under which Noranda and DuPont each received a fifty-percent interest in the joint venture in exchange for their respective contributions to the Joint Venture of certain assets and cash in the amount of $5,000. (Norfalco SOF ¶ 28.) 111. The LLC Agreement states that “[t]he sole purpose of the Company is to engage in the business of purchasing, transporting, distributing, marketing and selling Acid produced in the United States and Canada, and to engage in any and all lawful activities necessary or advisable in connection therewith or incidental thereto.” (Norfalco SOF ¶ 30, 7/1/98 Amended LLC Agreement, § 3.1 Ex. 24.) 112. The Agreement provides that the Joint Venture “shall do all things necessary to maintain its limited liability company existence separate and apart from each Member and any Affiliate of any Member, including holding regular meetings of the Members and maintaining its books and records on a current basis separate from that of any Affiliate of the Company or any other Person.” (Norfalco SOF ¶ 31, 7/1/98 Amended LLC Agreement at § 3.3, Ex. 24.) 113. The Agreement provides that Noranda DuPont LLC shall not commingle its funds with the participants or maintain joint bank accounts that could be independently accessed by its participants. (Norfalco SOF ¶ 31, 7/1/98 Amended LLC Agreement at § 3.3, Ex. 24.) 114. Noranda and DuPont each agreed to advance the Joint Venture up to $2 million to cover cash deficits. (Norfalco SOF ¶ 29.) 115. The Joint Venture’s profits were split between Noranda and DuPont. The Joint Venture was also set up so that Noranda and DuPont would share in any losses resulting from the operation of the joint venture. (Norfalco SOF ¶ 34.) 116. Noranda and DuPont received a percentage of the estimated margin made by Noranda’s resellers prior to the formation of the Joint Venture based upon the volume of acid that the Joint Venture was able to sell. (Norfalco SOF ¶ 35.) 117. Falconbridge was a non-voting member of the Joint Venture, but participated on the Board and functioned as a full member. (Norfalco SOF ¶ 32.) 118. It was agreed that Falconbridge would participate in Noranda’s share of any distributions from, or contributions to, the Joint Venture on the basis of Falconbridge’s prorata supply of sulfuric acid relative to that of Noranda. (Norfalco SOF ¶ 36.) 119. The Joint Venture’s Board, or “Members’ Committee” included representatives from Noranda and DuPont, as well as a non-voting member from Falconbridge. The Committee met on a regular basis and the management of the joint venture would submit reports on their progress. (Norfalco SOF ¶ 51.) 120. The Joint Venture had a variety of leases assigned to it by involved parties. (Norfalco SOF ¶ 39.) For example, DuPont assigned to the Joint Venture its leases for railcars, barges and tank trucks used to transport sulfuric acid to the joint venture. (Norfalco SOF ¶ 38.) 121. The Joint Venture contracted with DuPont for the services of its sales force and the use of DuPont’s technological support, customer support infrastructure, rail cars, customer contacts and sales experience, and overall logistic and distributional experience. Contracted services included (a) accounting and invoicing, tax, treasury, credit and collection; (b) information systems and network services; (c) risk management; (d) sales; (e) customer service; (f) safety; (g) human resources; and (h) logistics services, such as maintenance of equipment, transportation rate negotiations, freight services, tracking services, leasing of transportation services, contracts with carriers. The Joint Venture compensated DuPont for these services and had financial responsibility for the cost of DuPont’s sales force. (Norfalco SOF ¶¶ 46, 47.) 122. The Joint Venture contracted with Noranda for certain logistics and transportation-related services, including rate negotiations with rail and truck carriers. The Joint Venture compensated Noranda for these services. (Norfalco SOF ¶ 48.) 123. Noranda, Falconbridge, and DuPont contributed man-power to the Joint Venture by “seconding” employees to operate the new company. This method allowed the employees to preserve their benefits and pension status they were paid by the respective principals. The companies invoiced the Joint Venture for the salaries and benefits of the seconded employees. It was the job of the seconded employees first and foremost to look out for the best interest of the joint venture. (Norfalco SOF ¶ 43.) 124. Noranda and Falconbridge contributed personnel to the Joint Venture with experience in acid sales and transportation logistics and management. Seconded personnel included Kim Ross, formerly the head of Noranda’s sulfuric acid business; Geoff Cowell, formerly marketing manager of Noranda’s sulfuric acid department; Paul Shaw, brought in to improve business relationships; Tom Kim, who had sales experience; and Joseph Plut. Ross served as president of the Joint Venture from 1998-2000, after which Shaw took over. Falconbridge seconded John Pellegrini, who was involved in supply chain and inventory management for the Joint Venture. (Norfalco SOF ¶ 44.) 125. DuPont employees seconded to the Joint Venture included John Hammond, formerly vice president of marketing and operations for DuPont’s sulfuric acid business; James Pawloski, who had prior experience at DuPont with business development; and Mark Myers, who served as a business analyst for DuPont. Pawloski was involved in marketing for the Joint Venture and Myers served as a product manager, Myers had price authority for acid sales and worked with the sales force for to identify new customers and maintain existing ones. (Norfalco SOF ¶ 45.) 126. Noranda, DuPont and Falcon-bridge each entered into separate sulfuric acid supply agreements with the Joint Venture. Noranda and Falconbridge each agreed to sell 100% of their respective acid productions to the Joint Venture. For its part, DuPont agreed to sell all of the acid it manufactured it its plants with certain specified exceptions for acid produced for internal DuPont consumption. (Norfalco SOF ¶ 49.) 127. Under their respective supply agreements with the Joint Venture, Noranda, DuPont, and Falconbridge each retained the right to increase or decrease the amount of sulfuric acid available for delivery to the Joint Venture at any or all of their plants, and to acquire or construct additional sulfuric acid production facilities. (Norfalco SOF ¶ 50.) 128. The Joint Venture began operations on January 1, 1999. Though it had been in existence since July 1998, servicing the pre-existing distribution contracts assigned to it, the bulk of the pre-existing contracts ended and the new ones began at the beginning of 1999. (Norfalco SOF ¶ 52.) 129. The Joint Venture had its own office in Chadds Ford, Pennsylvania, which was leased by the Joint Venture and not owned by any of the participants. The Joint Venture also had an office in Mississauga, Ontario. (Norfalco SOF ¶ 53.) 130. The Joint Venture entered into contracts under its own name. (Norfalco SOF ¶ 54.) 131. The Joint Venture was responsible for setting the resale price of the sulfuric acid it purchased from Nor anda, DuPont, and Falcon-bridge. (Norfalco SOF ¶ 55.) 132. On average, sulfuric acid contract and transaction prices fell after the formation of the Joint Venture. (Norfalco SOF ¶¶ 66, 71.) The cause of the decline is disputed. 133. The Joint Venture was able to negotiate favorable rail and transportation contracts, and was successful in lowering transportation costs. (Norfalco SOF ¶ 60.) 134. The Joint Venture relied on DuPont’s national sales force, which handled a variety of chemical products. The Joint Venture argues that its sulfuric acid customers benefítted from the “one stop shopping” it was able to provide. (Norfalco SOF ¶¶ 57, 59, 61.) 135. The Joint Venture also contends that their supply of acid was less susceptible to events like strikes and maintenance shut downs. DuPont’s capabilities as a voluntary producer of sulfuric acid gave the Joint Venture “backup capability” if the supply of by-product acid was held up. (Norfalco SOF ¶ 58.) 136. As a new entrant, the Joint Venture competed with other distributors of sulfuric acid for business that previously had not been the subject of competition. (Norfalco SOF ¶ 65.) 137. Documents in the files of other companies engaged in the marketing and distribution of sulfuric acid reflect a perception that the Joint Venture was lowering prices. (Norfalco SOF ¶ 67.) 138. Koch’s Samuel Murray wrote in a February 1999 memorandum that PVS had “indicated that the JV is lowering pricing by $8-10/ton.” (Norfalco SOF ¶68, 2/99 Murray Memo, Ex. 46.) 139. At some facilities, Plaintiff National Alum purchased sulfuric acid from the Joint Venture at a price that was $5 less per ton than the price for which it had purchased sulfuric acid from its previous supplier. (Norfalco SOF ¶ 69.) 140. Plaintiff Old Bridge purchased sulfuric acid from the Joint Venture at a price that was lower than the price for which it had purchased sulfuric acid from its previous supplier. (Norfalco SOF ¶ 70.) 141. In the early months of 1999, the Joint Venture experienced a short term inventory bubble. Several factors contributed to the short term inventory bubble, including the following: (1) the Joint Venture’s attempts to initiate its acid delivery operations and integrate the assets contributed by Noranda, Falconbridge and DuPont; (2) severe winter weather conditions preventing the shipment of acid from Canada and the return of rail cars that were needed to ship acid from the smelters; (3) vigorous competition and an effort to lock up customers by other sellers of acid in response to the announcement of the formation of the Joint Venture; and (4) an oversupply of acid in the marketplace, particularly from overseas. (Norfalco SOF ¶ 72.) 142. The Joint Venture took several steps to control this inventory problem that were unrelated to affecting production, including: (1) making efforts to secure additional short term space and maximize existing storage facilities; (2) trying to unload and return railcars as expeditiously as possible; and (3) lowering prices to make additional sales. (Norfalco SOF ¶ 73.) 143. Rather than manufacturing acid that the Joint Venture could not sell or store, DuPont reduced production at one or, at most, two of its sulfuric acid plants. (Norfalco SOF ¶ 75.) 144. Accordingly, DuPont reduced its sulfuric acid production by a maximum of 20,000 to 25,000 tons over a two-month period. (Norfalco SOF ¶ 76.) 145. The Joint Venture decided that it would, on a temporary basis, ship acid that it had purchased from Noranda and Falconbridge to customers that had previously received acid procured from DuPont. The Joint Venture consulted with DuPont regarding this decision. (Norfalco SOF ¶ 74.) 146. The Joint Venture was successful in its efforts to address the temporary inventory bubble. (Norfalco SOF ¶ 77.) 147. In May 2001, Noranda redeemed DuPont’s interest in the Joint Venture. DuPont withdrew due to dissatisfaction with the Joint Venture’s financial results. DuPont also had concerns about the large “environmental footprint” associated with the Joint Venture’s transportation of over 3 million tons of a hazardous product. (Norfalco SOF ¶ 79.) 148. Immediately after Noranda redeemed DuPont’s interest in the Joint Venture, the operating entity continued in the form of NorFalco LLC, a company owned by Noranda and Falconbridge. (Norfalco SOF ¶ 80.) M. Boliden Involvement 149. From 1989 until 1994, Trelleborg owned 50% of Falconbridge. (Falconbridge SOF ¶ 43.) 150. Trelleborg also owned 100% of Boliden Intertrade, a world-wide marketer and trader of sulfuric acid. (Falconbridge SOF ¶ 44.) 151. In 1990, Boliden purchased Tennessee Chemicals Company (“TCC”), a manufacturer and marketer of sulfuric acid. (Falcon-bridge SOF ¶ 44.) 152. TCC had a sulfur-burning acid plant located in Copperhill, Tennessee, and Boliden had considerable infrastructure and expertise in marketing sulfuric acid in the southeastern United States. (Falconbridge SOF ¶ 45.) 153. In 1992, Noranda Sales entered into an agreement with Boliden by which Boliden distributed Falcon-bridge acid to customers in the United States. (Falconbridge SOF ¶ 47.) 154. Under the agreement, Falcon-bridge paid Boliden a commission on sales of Falconbridge acid to Boliden customers. Falconbridge received whatever price the customer paid for the acid less Boliden’s, commission. Falconbridge also paid for the freight costs to deliver the acid to the customer. (Falconbridge SOF ¶ 48.) 155. Boliden was insulated from price changes in the marketplace because it received its commission per ton regardless of the price to the consumer. (Falconbridge SOF ¶ 49.) 156. In March, 1992, Boliden installed a new sulfur burner at Copperhill, Copperhill’s nameplate production capacity for sulfuric acid production with this new sulfur burner increased to approximately 900,-000 tons of sulfuric acid per year. (Falconbridge SOF ¶ 52.) 157. In early 1995, Boliden told Noranda and Falconbridge that it may increase its production at its Copperhill facility to actually achieve its stated nameplate capacity of 900,000 tons of acid per year. (Falconbridge SOF ¶ 53.) 158. In May 1995 Boliden reached its production capacity at its Copper-hill facility achieved its stated nameplate capacity of 900,000 tons of acid per year. (Falconbridge SOF ¶ 54.) N. Zone Contracts 159. Falconbridge traditionally relied on Boliden and Marsulex to sell its output of sulfuric acid. (Falconbridge SOF ¶ 57.) However, Noranda grew dissatisfied and concerned about Marsulex’s performance. (Falconbridge SOF ¶¶ 58, 59.) 160. In or around 1995, Noranda, as Falconbridge’s agent for the sale of sulfuric acid, restructured Falconbridge’s method of distribution in the United States. (Falcon-bridge SOF ¶ 56.) 161. Noranda divided the northeastern half of the U.S. into 16 geographic zones, and invited certain prequalified resellers to offer to sell Falconbridge acid delivered within those zones. (Falconbridge SOF ¶ 60.) 162. Noranda offered the opportunity to bid on the zone contracts to distributors that Noranda believed “had efficiencies and goodwill for marketing acid in different geographic areas or infrastructure different areas [sic].” (Falcon-bridge SOF ¶ 62, Ross Dep. at 171:1-12, Ex. 17.) 163. Noranda established a number of criteria in determining which distributors would be prequalified to bid. The criteria “included things like a reseller’s safety history, their infrastructure that they had in place that would be used to resell Noranda-Falconbridge sulfuric acid, their sales experience, [and] their knowledge of [Noranda and Falconbridge’s] products.” (Falconbridge SOF ¶ 60, Thomas Dep. at 131:19-132:10, Ex. 11.) 164. The zone contracts did not prevent the resellers from selling sulfuric acid in any geographic location that the reseller wished. (Falconbridge SOF ¶ 66.) 165. The zone contracts contained no restrictions whatsoever with regard to sales of sulfuric acid manufactured by companies other than Noranda or Falconbridge. (Falconbridge SOF ¶ 67.) 166. Marsulex, PVS, Boliden, and DuPont worked with Noranda under zone contracts. (Falconbridge SOF ¶¶ 64, 69.) 167. Plaintiffs allege that negotiations surrounding the zone contracts amount to collusive conduct aimed at allocation of customers so as to avoid competition. (Compl. ¶¶ 46, 47.) O. Timeline 168. Fertecon is a widely-distributed trade publication that dates to the 1980s is widely read by participants in the sulfuric acid industry. (Boliden SOF ¶ 4.) 169. Representatives of many of the Plaintiffs would read publications such as Chemical Marketing Reporter, Chemical Week, and Purchasing Magazine to stay knowledgeable about the sulfuric acid industry. (Boliden SOF ¶¶ 5-9.) 170. Noranda and PVS entered into a contract regarding facilities in Copley, Ohio that became effective on March 11, 1988. The March 11, 1988 contract between Noranda and PVS regarding facilities in Copley, Ohio was terminated by December 31, 1998. (Boliden SOF ¶ 11.) 171. Noranda and Delta entered into a contract regarding facilities in Searsport, Maine that became effective on October 6, 1989. The October 1989 contract between Noranda and Delta was no longer in effect as of March 1,1996, when Noranda entered into a separate contract with GAC, which had bought Delta’s assets on March 9, 1994. (Boliden SOF ¶ 12.) 172. On August 1, 1990, Noranda and PVS-Nolwood Chemicals, Inc. (“PVS Nolwood”) entered into a contract regarding facilities in Bay City, Michigan. (Boliden SOF ¶ 13.) 173. Noranda and Koch entered into a purchase contract on June 27, 1990. (Boliden SOF ¶ 14.) 174. Noranda and Boliden entered into a contract that was effective on January 1.1992. The January 1, 1992 contract between Noranda and Boliden was terminated by December 31, 1998. (Boliden SOF ¶ 15.) 175. Noranda and DuPont entered into a contract regarding facilities in Grasselli, New Jersey that became effective on or about April 1, 1992. The April 1992 contract between Noranda and DuPont was terminated by December 31, 1998. (Boliden SOF ¶ 16.) 176. From 1986 through 1999, it was widely acknowledged and understood throughout the sulfuric acid industry and its publications that large volumes of smelter sulfuric acid were entering the American market from Canada. It was also acknowledged and understood that Noranda was actively involved in developing relationships with companies involved in the American sulfuric acid regarding this development. (Boliden SOF ¶¶ 17-77.) 177. In January 2003, the first Canadian media reports appeared regarding an investigation by the U.S. Department of Justice into anticompetitive activities involving sulfuric acid. The articles arose after the Royal Canadian Mounted Police and Competition Bureau raided Noranda and Falconbridge offices, seizing thousands of documents. (PI. SOF ¶¶ 171-173.) LEGAL STANDARD Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252, 106 S.Ct. 2505. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir.2003); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). At summary judgment, the “court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact.” Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir.2008). ANALYSIS Plaintiffs claim that Defendants violated the Sherman Act by engaging in collusive and anticompetitive behavior between 1988 and 2001. According to Plaintiffs, Noranda and Falconbridge negotiated agreements in which eo-Defendants could access cheaper Noranda-Falconbridge acid if they shut down or curtailed their own voluntary production of sulfuric acid. Profit-sharing arrangements allegedly served to distribute the proceeds of this collusion. Dominant producers Noranda, Falcon-bridge, and DuPont later formed a joint venture that virtually controlled the merchant market supply of sulfuric acid. DuPont allegedly restricted its production at the Joint Venture’s direction. Overall, Plaintiffs allege that these arrangements enabled Defendants to control and reduce the industry-wide supply of sulfuric acid; stabilize, raise, or otherwise fix prices; and allocate market share, customers, and profits among themselves to eliminate competition. Defendants contend that closing sulfuric acid production facilities was not, as Plaintiffs argue, a condition of any agreements to purchase Noranda-Falconbridge acid. Defendants generally argue that older facilities were shut down because the capital costs of maintaining them or complying with environmental regulations made continued voluntary production economically unfeasible. Noranda and Falconbridge further argue that DuPont’s production was only temporarily reduced to deal with a short-term inventory bubble. I. Choice of Law As an initial matter, the Court must identify the governing law in this case. 28 U.S.C. § 1407 authorizes the Judicial Panel on Multidistrict Litigation to consolidate, by transfer of venue to a single district, civil actions pending in different federal courts. When cases are based on diversity of citizenship, the transferee court must apply the state laws that the transferor forums would have, according to that forums’ choice-of-law rules. See In re Data General Corp. Antitrust Litigation, 510 F.Supp. 1220, 1227-28 (J.P.M.L.1979) (quoting In re Air Crash Disaster at John F. Kennedy International Airport on June 21, 1975, 407 F.Supp. 244, 246-47 (J.P.M.L.1976); In re Air Crash Disaster Near Chicago, 644 F.2d 594, 610 (7th Cir.1981)). This practice parallels the principle set forth in Van Dusen v. Barrack, which teaches that, under 28 U.S.C. § 1404(a), the law of the transferor forum accompanies a transfer. Just as Erie R.R. v. Tompkins aimed to prevent forum-shopping by compelling federal courts to apply the law of the state in which they sit, the Supreme Court in Van Dusen sought to “ensure that the ‘accident’ of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed.” 376 U.S. 612, 638, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); see also Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). With cases based on federal question jurisdiction, however, adopting the law of multiple transferor circuits poses problems. As the D.C. Circuit observed in In re Korean Air Lines Disaster, “because there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory.” 829 F.2d 1171, 1175 (D.C.Cir.1987). For this reason, circuits considering the issue since Korean Air have held that, in federal question cases consolidated under § 1407, the law of the transferor court warrants “close consideration” but does not bind the transferee court. Id. at 1176; see also, e.g., Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993); In re Temporomandibular Joint Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir.1996). Although the Seventh Circuit has yet to decide which law governs federal claims in cases transferred under 28 U.S.C. § 1407, it has adopted the rationale of Korean Air when resolving the question under 28 U.S.C. § 1404(a), which authorizes district courts to transfer cases for reasons of convenience. See McMasters v. U.S., 260 F.3d 814, 819 (7th Cir.2001); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir.1993), cert. denied, 510 U.S. 1073, 114 S.Ct. 883, 127 L.Ed.2d 78 (1994). Under § 1404(a), a transferee court in the Seventh Circuit is “free to decide [federal claims] in the manner it views as correct without deferring to the interpretation of the transferor circuit.” McMasters v. U.S., 260 F.3d at 819 (quoting Korean Air, 829 F.2d at 1174). This is because, in contrast to the multifarious and localized nature of state laws, “[a] single federal law implies a national interpretation .... [E]ach court of appeals considers the [federal] question independently ... without regard to the geographic location of the events giving rise to the litigation.” Eckstein, 8 F.3d at 1126. The law of the transferor forum is only applied when the federal law in question is intended to be geographically non-uniform. Id. at 1127. Because the Sherman Act is intended to apply uniformly throughout the territorial United States, it does not trigger this exception. Taking its cue from the foregoing cases, this Court holds that Seventh Circuit law applies to the present multidistrict litigation. II. Statute of Limitations Before proceeding to the merits of Defendants’ motions, the Court must address their assertion that all Sherman Act claims fail due to the expiration of the statute of limitations. Antitrust claims are subject to a four-year statute of limitations period. 15 U.S.C. § 15b. Generally, an antitrust claim “accrues and the statute begins to run when a defendant commits an act that injures a plaintiffs business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). However, the Seventh Circuit has held that, “in the absence of a contrary directive from Congress,” antitrust actions are subject to the “discovery rule, which ‘postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured.’ ” In re Copper Antitrust Litigation, 436 F.3d 782, 789 (7th Cir.2006) (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990)). In other words, a plaintiffs claim accrues not when the conduct or injury occurs, but when the plaintiff, through the exercise of due diligence, “discovers that he has been injured and who has caused the injury.” Id. (internal citations and quotation marks omitted) (emphasis in original). Defendants assert that the Seventh Circuit’s interpretation is contrary to Supreme Court precedent, and that the proper standard for accrual of the statute of limitations in antitrust suits is the incident of injury, rather than the discovery of the harm. Under Defendants’ approach, most of Plaintiffs’ claims are time-barred because all but one of the challenged contracts expired more than four years before Plaintiffs acted. Defendants’ reading of Supreme Court jurisprudence cannot change the fact that, as discussed above, Seventh Circuit precedent governs this multidistrict litigation. It is for the Seventh Circuit or the Supreme Court to overturn that precedent, not this Court. Therefore, Defendants’ initial argument fails. Assuming for the sake of argument that the discovery rule does not apply to antitrust claims, genuine issues of material fact would remain as to whether Plaintiffs’ accrual dates should be tolled on the grounds of fraudulent concealment. In an antitrust case, the doctrine of fraudulent concealment “presupposes that the plaintiff ... should have discovered[ ] that the defendant injured him, and denotes efforts by the defendant ... to prevent the plaintiff from suing in time.” Copper Antitrust, 436 F.3d at 791 (quoting Coda, 920 F.2d at 451). The doctrine requires Defendants to take affirmative steps after the original wrongdoing to divert attention, mislead, or prevent discovery. See Tornera v. Galt, 511 F.2d 504, 510 (7th Cir.1975); Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 456 n. 4 (7th Cir.1987). Failure to actively disclose illegal conduct, or mere denial of wrongdoing, does not qualify as an affirmative act of concealment. Clow Corp. v. Witco Chemical Corp., No. 82 C 1287, 1984 WL 876, at *5 (N.D.Ill. June 20, 1984); see also Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir.1978); King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147, 1155 (10th Cir.1981). However, “hiding” the misconduct, “throwing up a smokescreen” or “misrepresentation” of facts comprising the cause of action can toll the limitations period. Trecker v. Scag, 679 F.2d 703, 708 (7th Cir.1982). As grounds for tolling under fraudulent concealment, Plaintiffs point to announcements made by Defendants throughout the 1990s that go beyond mere failures to disclose or denials of -wrongdoing. See PI. Ex. 30; PI. Ex. 75; PI. Ex. 154; PI. Ex. 155; PI. Ex. 157. These statements go so far as to offer alternative, and allegedly false, explanations for Defendants’ decisions to shut down facilities or raise prices. While Defendants contend that their announcements are honest disclosures supported by market data, the Court must draw all reasonable inferences in Plaintiffs’ favor where matters are disputed. Defendants’ public statements create triable issues of fact as to whether Defendants, through misleading public statements, affirmatively concealed agreements to reduce industry-wide output or fix prices. See Copper Antitrust, 436 F.3d at 792 (evidence that defendant publicly offered “innocent alternative explanations to explain away events related to the price-fixing conspiracy, knowing that they were misleading,” among other deceptive acts, was enough to show a dispute of material fact as to defendant’s fraudulent concealment); United Nat. Records, Inc. v. MCA, Inc., 609 F.Supp. 33, 36 (D.C.Ill.1984) (evidence that defendant publicly released “alternative explanations” for parallel price increases created genuine issues of fact as to whether defendants affirmatively concealed price-fixing arrangement). Determinations of fact are therefore necessary to ascertain whether Plaintiffs may benefit from equitable tolling, and if so, when a diligent inquiry would have revealed evidence supporting the present cause of action. Fraudulent concealment aside, Defendants contend that this action remains time-barred because a reasonably diligent plaintiff should have been aware of all relevant aspects of the alleged anticompetitive behavior early on. See Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir.1994) (under the discovery rule, a court determines when a plaintiff should have discovered its injury according to an objective standard). Throughout the late 1980’s and early 1990’s, Defendants’ resale contracts, zone contracts, and the Noranda DuPont Joint Venture had all received publicity in various trade publications. Defendants thus maintain that Plaintiffs had constructive notice of Defendants’ injurious acts several years prior to the earliest permissible accrual date. In re Copper Antitrust Litigation (“Copper Antitrust”) guides the Court’s