Full opinion text
MEMORANDUM OPINION AND ORDER J. RONNIE GREER, District Judge. I. Introduction This multidistrict class action case involves allegations by plaintiffs, independent dairy farmers, independent cooperative members and DFA member dairy farmers, both on behalf of themselves and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure against Dean Foods Company (“Dean”), National Dairy Holdings, L.P. (“NDH”), Dairy Farmers of America, Inc. (“DFA”), Dairy Marketing Services, LLC (“DMS”), Southern Marketing Agency, Inc. (“SMA”), Mid-Am Capital, LLC (“Mid-Am”), James Baird (“Baird”), Gary Hanman (“Han-man”) and Gerald Bos (“Bos”) (collectively referred to as “defendants”) seeking treble damages and injunctive relief for violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and a state law breach of contract claim against DFA. Several motions for summary judgment have been filed: (1) Defendants’ joint motion for summary judgment on Counts One through Five of the complaint, [Doc. 839]; (2) supplemental motions for summary judgment by SMA, [Doc. 829], Baird [Doc. 826], Bos, [Doe. 833], and Hanman, [Doc. 836]. DFA has also moved for summary judgment as to Count Six, the state law breach of contract claim, [Doe. 842], The plaintiffs have responded to all motions for summary judgment, the defendants have replied and supplemental briéfs have been filed by the parties as to certain questions raised at oral argument by the Court. Oral argument was heard on January 20, 2011, and April 21, 2011. An order was entered on May 12, 2011, [Doc. 1543], announcing the Court’s decision as to several of those motions. This memorandum opinion is entered for the purpose of setting forth more fully the Court’s analysis and conclusions with respect to the motions. II. Factual and Procedural Background As set forth above, plaintiffs’ allege violations of §§ 1 and 2 of the Sherman Act and breach of contract by DFA. More specifically, plaintiffs allege a conspiracy to monopolize and monopsonize against all defendants under § 2 (Count One), attempt to monopolize and monopsonize under § 2 (Count Two), a monopolization claim against DFA, DMS and SMA under § 2 (Count Three), monopsonization against Dean under § 2 (Count Four), and conspiracy to restrain trade against all defendants under § 1 (Count Five). Plaintiffs also pursue a breach of contract claim against DFA in Count Six. The plaintiffs are dairy farmers who produce or have produced during the relevant time period fluid Grade A milk within Federal Milk Market Orders (“FMMO” or “Order”) 5 and 7 which was sold, directly or through an agent, to Defendants or Co-conspirators in Orders 5 and 7. Defendants Dean and NDH purchase, process and ship fluid Grade A milk. Dean owns a number of bottling plants in the southeast and is the largest fluid Grade A milk bottler in the southeast. NDH owns several Grade A milk bottling plants in the southeast and is the second largest Grade A milk bottler in the southeast. DFA owns fifty percent of NDH. DFA is a dairy farmer cooperative which markets, processes and ships Grade A milk. DFA owns and operates hauling companies, processing plants and distribution centers and is the third largest fluid Grade A milk bottler in the southeast. DFA is also the largest dairy cooperative in the country. DFA is owned by its dairy farmer members and governed by a board of directors comprised of dairy farmer members. DFA markets milk produced by its dairy farmer members and distributes the net proceeds or profits from its operations to its dairy farmer members. DFA also markets milk on behalf of some non-members. DMS is a common marketing agency that markets milk on behalf of dairy farmers. DMS also performs milk marketing services for certain milk processors pursuant to outsourcing contracts. SMA is a common marketing agency that assists in marketing raw Grade A milk on behalf of its six member dairy cooperatives. SMA handles coordination of hauling and transportation of its member cooperatives’ raw Grade A milk from the farm to the processing plant and in recent years the coordination of the purchase and hauling of supplemental milk on behalf of its member co-ops. Mid-Am is a subsidiary of DFA and was formed by DFA and others to provide capital to, and make equity investments in, dairy processing and fluid Grade A milk bottling operations. Baird is the manager of SMA, an officer, director, and general manager of Lone Star Milk Producers, a dairy cooperative based in Texas, and the principal owner, officer and manager of Lone Star Milk Transport, Inc., BullsEye Transport, LLC, and BullsEye Logistics, LLC, Texas-based companies that transport Grade A milk for DFA and SMA. Baird is also the principal owner and manager of GSC, LLC, an entity designed to manage and/or coordinate the operations of defendants SMA, DMS and other entities. Hanman was DFA’s chief executive officer from its formation in 1998 until he retired on December 31, 2005. Hanman also served on the management committee of Dairy Management, LLC, the sole general partner of defendant NDH. Bos was DFA’s chief financial officer from its formation until his retirement on December 31, 2005. Bos also served on the management committee of Dairy Management, LLC. The plaintiffs allege that Baird, Hanman and Bos have participated in, authorized, directed and/or knowingly approved or ratified the illegal conduct alleged in their complaint. Plaintiffs allege that certain other milk marketers, milk purchasers, milk processors and other entities and individuals have participated as co-conspirators with the defendants in the violations alleged in their complaint and have performed acts and made statements in furtherance thereof. The third party co-conspirators include DairyCom, Inc., the Kroger Co., Prairie Farms Dairy, Inc., Robert W. Allen, Jay Bryant, Herman Brubaker, Gregg L. Engles, Michael J. McCloskey, Allen A. Meyer and Pete Shinkle. This Court would ordinarily set out relevant facts related to the issues raised by the summary judgment motions. That is virtually impossible in this case, however, given the voluminous nature of the pleadings and exhibits filed by the parties, espedally their statements of undisputed material facts. Both the statements of facts in support of the motions and plaintiffs’ responses thereto, as well as plaintiffs’ separate statement of facts, identify many “facts” which are irrelevant or, in reality, appear to be mainly arguments and/or conclusory statements advanced in support of their allegations. In reality, the material events related to the issues raised by these motions are largely undisputed, with the parties disputing only the inferences potentially to be drawn from those events by the finder of fact. Facts which are relevant to the Court’s determination of these issues will be discussed within the body of the memorandum opinion. III. Summary Judgment Standard Generally, summary judgment is proper where “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 moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); Canderm Pharmacol, Ltd. v. Elder Pharm., Inc., 862 F.2d 597, 601 (6th Cir.1988). Only factual disputes that might affect the outcome of a lawsuit under governing law are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be “genuine,” a dispute must involve evidence upon which a jury could find for the nonmoving party. Id. The burden is upon the moving party to show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thereafter, the nonmoving party must present significant probative evidence in support of the complaint to defeat the motion. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. The nonmoving party is required to show more than a metaphysical doubt as to the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In deciding the motion, “[t]he court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute.” Stephens v. Koch Foods, LLC, 667 F.Supp.2d 768, 779 (E.D.Tenn.2009) (citing Anderson). The parties in this case have devoted considerable of their briefing and oral argument to the question of whether or not antitrust plaintiffs must meet a different standard from that required of other civil plaintiffs. The burden on the plaintiff in an antitrust case is the same as it is on any other civil plaintiff. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468-69, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). As in other civil cases, courts addressing summary judgment motions in antitrust cases “must ... consider all facts in the light most favorable to the nonmovant and must give the non-movant the benefit of every reasonable inference.” Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, 930 (6th Cir.2005) (internal quotations and citations omitted). Some special rules do apply, however, with respect to the manner in which the court views certain ambiguous circumstantial evidence in a § 1 case. In conspiracy cases, “[t]he element of agreement, ... is nearly always established by circumstantial evidence, as conspirators seldom make records of their illegal agreements.” United States v. Short, 671 F.2d 178, 182 (6th Cir.1982). Both the Supreme Court and the Sixth Circuit have, however, made it clear that in a case based on circumstantial evidence, an antitrust plaintiff may not reach a jury where the evidence on which he relies to prove an agreement is, at best, ambiguous. (Matsushita, 475 U.S. at 588, 106 S.Ct. 1348) (“conduct as consistent with permissible competition as illegal conspiracy does not, standing alone, support an inference of agreement”); Wallace v. Bank of Bartlett, 55 F.3d 1166 (6th Cir.1995). An antitrust plaintiff bears the burden of presenting evidence that “tends to exclude the possibility that the [defendants] were acting independently.” Monsanto Co. v. Spray—Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). An antitrust plaintiff will be unable to demonstrate a conspiracy if, “using ambiguous evidence, the inference of a conspiracy is less than or equal to an inference of independent action.” See Riverview Investments, Inc. v. Ottawa Cmty. Imp. Corp., 899 F.2d 474, 483 (6th Cir.1990) (citing Matsushita, 475 U.S. at 588, 106 S.Ct. 1348). The Supreme Court reiterated that standard as recently as 2007 in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007): [P]roof of a § 1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); and at the summary judgment stage a § 1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 550 U.S. at 554, 127 S.Ct. 1955. This is consistent with the standard set forth by the Sixth Circuit in numerous cases. See Nat’l Hockey League Players Ass’n. v. Plymouth Whalers Hockey Club, 419 F.3d 462, 475 (6th Cir.2005) (Sherman Act conspiracy claim fails if evidence is “equally consistent with independent conduct”); Sancap Abrasives Corp. v. Swiss Industrial Abrasives, 19 Fed.Appx. 181, 187 (6th Cir.2001); Super Sulky, Inc. v. United States Trotting Ass’n, 174 F.3d 733, 740 (6th Cir.1999); Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1009-10 (6th Cir.1999); Bailey’s Inc. v. Windsor America, Inc., 948 F.2d 1018, 1028 (6th Cir. 1991); Nurse Midwifery Assoc. v. Hibbett, 918 F.2d 605, 616-17 (6th Cir.1990); City Communications, Inc. v. City of Detroit, 888 F.2d 1081, 1085 (6th Cir.1989). IV. Analysis and Discussion A. The Section 1 Claim-Unlawful Conspiracy Among Defendants To Foreclose Competition and Fix Prices (Count Five) Count Five of plaintiffs’ consolidated amended complaint (“complaint”) alleges a decade long, multi-faceted, far-reaching conspiracy among defendants and third-party co-conspirators “to eliminate competition for the purchase of fluid Grade A milk from dairy farmers in the southeast.” Plaintiffs allege that defendants have committed certain overt acts in furtherance of the conspiracy alleged, including the following acts: (a) The use of long term full supply agreements to control southeast area farmers’ access to fluid Grade A milk bottling plants; (b) depressing, fixing and stabilizing prices for fluid Grade A milk paid to dairy farmers; (c) requiring southeast dairy farmers to market their fluid Grade A milk to DFA controlled entities to gain access to bottling plants; (d) threatening to cut off and cutting off southeast dairy farmers’ access to bottling plants; (e) boycotting dairy farmers, cooperatives and Grade A milk bottlers; (f) “flooding” the southeast Grade A market to depress prices paid to farmers; (g) utilizing DFA-controlled entities to monitor prices for Grade A milk paid to independent dairy farmers and independent cooperative members; (h) “punishing” independent cooperatives and fluid Grade A milk bottlers that do not comply with defendants’ conspiracy in an effort to eliminate or control those entities as competitive outlets for milk; and (i) purchasing fluid Grade A milk bottling plants, closing down those plants and/or refusing to operate the plants with the purpose and intent of stifling competition from independent dairy farmers, cooperatives and fluid Grade A milk bottlers in the southeast. Section 1 of the Sherman Act provides in pertinent part: [e]very contract, combination ... or conspiracy in restraint of trade or commerce among the several states ... is declared to be illegal. 15 U.S.C. § 1. While § 1 appears to prohibit every restraint of trade, the Supreme Court has interpreted the statute as condemning only those combinations which constitute unreasonable restraints of trade. Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). In order to establish their claim under § 1 of the Sherman Act, the plaintiffs must prove that the defendants “(1) participated in an agreement that (2) unreasonably unrestrained trade in the relevant market.” Nat’l Hockey League Players’ Assoc., 325 F.3d at 718. Whether an agreement unreasonably restrains trade is determined under one of two approaches: the per se rule and the rule of reason. Worldwide Basketball and Sport Tours, Inc. v. National Collegiate Athletic Association, 388 F.3d 955, 959 (6th Cir.2004). In per se cases, evidence of actual effect on competition is not required because these actions are conclusively presumed to be unreasonable. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Northern Pacific Railway Company v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). A restraint on trade is per se illegal when “the practice facially appears to be one that would almost always tend to restrict competition and decrease output.” National Collegiate Athletic Association v. Bd. of Regents of Univ. Of Oklahoma, 468 U.S. 85, 100, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (citations omitted). Examples of practices which are per se illegal are horizontal price fixing, market allocation, group boycotts or tying arrangements, activities which are considered inherently anti-competitive. Copperweld Corp., 467 U.S. at 768, 104 S.Ct. 2731; Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 19-20, 99 5.Ct. 1551, 60 L.Ed.2d 1 (1979); Northern Pacific Railway Company, 356 U.S. at 5-6, 78 S.Ct. 514. “Restraints imposed by agreement between competitors have traditionally been denominated as horizontal restraints, and those imposed by agreement between firms at different levels of distribution as vertical restraints.” Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 729-30, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). There is often no bright line separating per se from rule of reason analysis. NCAA, 468 U.S. at 104, n. 26, 104 S.Ct. 2948. A per se rule is inappropriate where the effects of a particular restraint are unclear, even where aspects of the restraint may appear to be facially anti-competitive. Meijer, Inc. v. Barr Pharmaceuticals, Inc., 572 F.Supp.2d 38, 47 (D.D.C.2008). Per se analysis should not be extended “to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious .... ” Balmoral Cinema, Inc. v. Allied Artists Pictures Corp., 885 F.2d 313, 316 (6th Cir.1989) (quoting FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986)). Furthermore, “there is a presumption in favor of a rule-of-reason standard,” Business Elec., 485 U.S. at 726, 108 S.Ct. 1515. Under the rule of reason analysis, the plaintiff bears the burden of establishing that the conduct complained of “produces significant anticompetitive effects within the relevant product and geographic markets.” NHL Players’ Assoc., 325 F.3d at 718; Worldwide Basketball and Sport Tours, 388 F.3d at 959 (quoting Nat’l Hockey League Players, 325 F.3d at 718). Although defendants raise numerous arguments in favor of summary judgment, each of which will be addressed hereinafter, the defendants argue that the case can be disposed of in their favor on a more simple basis. Defendants argue that all of plaintiffs’ claims require definition of a relevant market, and, since plaintiffs cannot establish the relevant geographic market, all of plaintiffs’ claims fail. Plaintiffs respond that not all of their claims and, more particularly, their conspiracy claims do not require that they establish the relevant geographic market. Put more simply, with respect to Count Five, the defendants claim that the allegations of violation of § 1 are subject to rule of reason analysis requiring plaintiffs to establish the relevant geographic market while plaintiffs argue that their § 1 claim is for a horizontal, per se illegal agreement in restraint of trade. The parties also differ on the question of whether or not to apply the rule of reason analysis or per se analysis to the conspiracy alleged is a question of law for the Court to decide or a question of fact for the jury. 1. Question of Law or Fact? The question of whether the appropriate rule of law to be applied to the conspiracy alleged by the plaintiffs in their complaint is to be determined by the Court or is a question of fact for the jury has not been precisely answered in the Sixth Circuit. This Court concludes, however, that the weight of authority supports defendants’ argument that determination of the appropriate rule of law to be applied is a question of law to be decided by the Court and that approach also appears to be consistent with the Sixth Circuit’s application of the legal rules involved. As defendants note in their brief, a leading antitrust treatise recognizes that the selection of the mode of analysis is a question of law for the court: While applying any one of antitrust’s modes of analysis might involve many fact questions, the selection of a mode is entirely a question of law. To be sure, the Supreme Court stated in Maricopa that “the rule of reason requires the factfinder to decide whether under all the circumstances of the case the restrictive practice imposes an unreasonable restraint on competition.” But that statement was not meant to indicate that the fact finder should determine whether the per se rule or the rule of reason applied to a particular set of facts. Rather, it meant that once the court decided that the rule of reason should apply, disputed factual questions about reasonableness should be left to the jury. In a footnote the court made clear that determining the rule of decision was a question of law. XI Herbert Hovencamp, Antitrust Law ¶ 1909b at 279 (2d Ed. 2005) (citing Perceptron, Inc. v. Sensor Adaptive Mach., Inc., 221 F.3d 913 (6th Cir.2000)). This statement is also consistent with other decisions of the Sixth Circuit. For instance, in Expert Masonry, Inc. v. Boone County, Kentucky, 440 F.3d 336 (2006), the Sixth Circuit said: “In the first instance, courts must distinguish between some types of unlawful anticompetitive restraints that [are] ... per se illegal under the antitrust laws, and the far-larger type of restraints that should be analyzed under the rule of reason approach .... ”). Id. at 342 (emphasis added). Likewise, in United States v. Cooperative Theatres Of Ohio, Inc., 845 F.2d 1367 (6th Cir. 1988), although a criminal case, the district court held as a matter of law that the alleged conduct constituted a per se violation of the Sherman Act, a ruling affirmed by the Sixth Circuit. See also Care Heating & Cooling, Inc. v. American Standard, Inc., 427 F.3d 1008, 1012 (6th Cir.2005) (“if a court determines that a practice is illegal per se, further examination of the practice’s impact on the market or the procompetitive justifications for the practice is unnecessary for finding a violation of antitrust law,” suggesting that the decision as to whether a practice is illegal per se is one committed to the court). The approach is likewise consistent with that taken by the United States Supreme Court and other circuit courts of appeals. The Supreme Court has repeatedly noted that the per se rule should be applied to conduct only after courts have had “considerable experience with certain business relationships.” United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). Since it seems quite clear that the per se rule should be applied to conduct only after it has been examined carefully by the courts, not juries, it also seems rather clear that the question of whether allegedly unlawful conduct is subject to per se analysis or rule of reason analysis is a legal question for the court, not a question for the jury. See also Northern Pacific Railway Company, 356 U.S. at 5, 78 S.Ct. 514 (suggesting that the court must first determine whether the conduct alleged to be unlawful is the type of conduct that has a “pernicious effect on competition and lacks any redeeming virtue ...,” to be considered illegal per se); Copy-Data Systems, Inc. v. Toshiba America, Inc., 663 F.2d 405 (2d Cir.1981) (where the district judge had held, after hearing argument from both sides, that Toshiba had imposed a horizontal, illegal per se territorial restriction on Copy-Data, a holding reversed by the Second Circuit on appeal as a matter of law). 2. Horizontal or Vertical? Per Se or Rule of Reason? It is beyond question that plaintiffs present their claim as a horizontal, per se illegal conspiracy to restrain trade and fix prices on the part of the defendants, [see complaint, Doc. 87, ¶ 162], arguing only alternatively that the agreements at issue violate § 1 of the Sherman Act under rule of reason analysis. In addition, plaintiffs repeatedly referred to their claim as a horizontal, per se claim in their pleadings and repeatedly referred to the agreements at issue during oral argument as horizontal agreements. The labels attached to the conduct by the plaintiffs are not determinative, however, i.e. that plaintiffs repeatedly state that the conspiracy they allege is a horizontal, per se illegal conspiracy to fix prices and allocate markets does not make it so. In fact, the Supreme Court has recognized just this. California Dental Ass’n. v. Federal Trade Commission, 526 U.S. 756, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999). The Sixth Circuit has succinctly defined the two major types of antitrust conspiracies, as follows: Courts have identified two major types of antitrust conspiracies to restrain trade: horizontal and vertical. Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988). Horizontal conspiracies involve agreements among competitors at the same level of market structure to stifle trade, such as agreements among manufacturers or among distributors to fix prices for a given product, and therefore may constitute per se violations of antitrust law. Id.; see also Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.1978). Vertical conspiracies, on the other hand, involve agreements among actors at different levels of market structure to restrain trade, “such as agreements between a manufacturer and its distributors to exclude another distributor from a given product and geographic market.” Crane & Shovel Sales Corp., 854 F.2d at 805. Care Heating & Cooling, 427 F.3d at 1013. Vertical restraints are analyzed under the rule of reason. Id. (citing Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 57-58, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977)). To the extent there was any lingering doubt about whether vertical restraints are subject to per se or rule of reason analysis, that suggestion was quashed by the United States Supreme Court in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (vertical restraints to be judged according to the rule of reason). See also Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430 (6th Cir.2008). As an initial matter then, the Court must determine whether or not the agreement alleged by the plaintiffs is horizontal in nature, which may constitute a per se violation of antitrust law, or vertical in nature, which must be analyzed under the rule of reason. In making this determination, as set forth above, the labels used by the plaintiffs are largely irrelevant and the decision will be made against a backdrop of several well established principles. First of all, “[t]here is an automatic presumption in favor of the rule of reason standard.” Care Heating & Cooling, 427 F.3d at 1012 (citing Business Electronics Corp., 485 U.S. at 726, 108 S.Ct. 1515; Continental T.V., Inc., 433 U.S. at 49, 97 S.Ct. 2549). Secondly, the category of agreements to be analyzed under a per se analysis has been shrinking over the last few years. See Leegin. Finally, the per se rule should be applied only in “clear cut cases” of trade restraints that are so unreasonably anticompetitive that they present straightforward questions for reviewing courts. NHL Players Assoc., 325 F.3d at 718 (citing Sylvania, 433 U.S. at 49-50, 97 S.Ct. 2549). See also Balmoral Cinema, 885 F.2d at 316 (“per se analysis should not be extended ‘to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious As noted above, plaintiffs allege a horizontal conspiracy to restrain trade among the named defendants and certain non-defendant co-conspirators identified in the complaint. These include some processors of raw milk (Dean, NDH, DFA, Kroger, Prairie Farms), membership cooperatives (DFA, Prairie Farms), common marketing agencies (SMA, DMS) and individuals, (Hanman, Bos, Baird, etc.). This diverse group of actors are not just horizontal competitors but a collection of actors in the milk industry whose roles run the gambit of activities from gathering and marketing of raw milk from the farm to processing and marketing of processed milk at the retail level. This does not appear on its face to be a horizontal conspiracy, despite plaintiffs’ argument that defendants were horizontal competitors in both milk bottling and procurement of milk prior to the alleged illegal agreements to allocate markets. They also point to record evidence that certain witnesses admitted under oath that Suiza/Dean, NDH and DFA viewed each other as competitors in both markets. Apparently recognizing the flaw in their position, defendants appear to argue in their pleadings that the conspiracy involved Dean, NDH and DFA/DMS/SMA as horizontal competitors and that the various other defendants and non-defendant co-conspirators, some of whom the defendants apparently acknowledge as vertical entities, simply joined in the horizontal agreement. In making this argument, plaintiffs appear to rely primarily on two Seventh Circuit cases. In Denny’s Marina, Inc. v. Renfro Productions, Inc., 8 F.3d 1217 (7th Cir.1993), a marine dealer brought antitrust claims against its competitors, and the competitors’ trade association and a boat show producer, challenging its exclusion from boat shows. The alleged illegal agreement was entered into by the marine dealers’ competitors and the competitors’ trade association, who, it was alleged, conspired to force Denny’s out of boat shows because it was a price cutter. The operator of the premises where the boat shows were conducted, it was alleged, joined the conspiracy, by allowing Denny’s competitors and their trade association to accomplish their illegal goals. The Seventh Circuit held that the fact that the conspiracy was joined by the operator of the premises where the boat shows were held did not transform the illegal agreement between Denny’s competitors and their trade association into a vertical agreement. In Toys “R” Us, Inc. v. Federal Trade Commission, 221 F.3d 928 (7th Cir.2000), the court examined agreements between retailers and toy manufacturers in which each manufacturer promised to restrict distribution of its products to low priced warehouse club stores on condition that other manufacturers would do the same. Toys “R” Us, a toy retailer, invited manufacturers to stop selling toys to wholesale toy clubs which competed with Toys “R” Us and the manufacturers complied. The Seventh Circuit acknowledged that the agreements between Toys “R” Us and the manufacturers were vertical agreements but determined that the FTC’s finding of the horizontal agreement among the manufacturers was warranted under the circumstances, based on evidence in the form of statements by the manufacturer’s executives that each manufacturer had agreed to the Toys “R” Us proposal on condition that its competitors do the same. It seems to the Court that the Denny’s Marina and Toys “R” Us cases are distinguishable from the factual situation at issue here. In the present case, although plaintiffs make an allegation of an explicit agreement to fix prices, they in reality claim concerted action on a host of non-price restrictions by vertically situated actors in furtherance of that conspiracy. See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430 (6th Cir.2008). In addition, these two Seventh Circuit cases have not been widely cited for the proposition advanced by the plaintiffs and, indeed, the Denny’s Marina case does not appear to have been cited at all for the proposition advanced by plaintiffs. The Court thus concludes that the alleged agreements challenged by the plaintiffs are vertical in nature, not horizontal, and therefore not subject to per se analysis. Even if the Court were to determine that the agreements are horizontal in nature, however, the Court would conclude that these agreements do not involve the kind of “naked restraint” subject to per se analysis, as argued by the defendants. As set forth above, per se analysis is reserved for a very limited category of activities. The practice must be one which facially appears to be one that would always or almost always tend to restrict competition and decrease output. As noted above, not all horizontal price fixing is the kind of naked restraint of trade subject to a per se analysis. See Care Heating & Cooling, 427 F.3d at 1013 (horizontal conspiracies “may constitute per se violations of antitrust law.” (emphasis added)). In order to overcome the automatic presumption in favor of the rule of reason standard applied in the Sixth Circuit, the case must be a clear cut case of trade restraint that is so unreasonably anticompetitive as to present straightforward questions for reviewing courts. Id. at 1012. As set forth above, the plaintiffs in this case allege a decade long, wide-ranging conspiracy to fix prices and allocate markets, activities which are traditionally per se illegal. In support of their claim, they point to a number of largely undisputed acts by the defendants which they argue are in furtherance of the alleged conspiracy. These overt acts, including the use of exclusive supply agreements, most favored nation pricing, alleged DFA control of NDH, agreements to require farmers to join SMA, simultaneous decisions by Dean and NDH to terminate non-DFA suppliers, DFA’s non-disclosed control of DMS, “flooding”, pooling, outsourcing agreements, and the like, are activities or conduct which are not manifestly anti-competitive, do not always or almost always tend to restrict competition or decrease output, do not always have an adverse impact on the market and are not, in and of themselves, illegal. The essence of plaintiffs’ argument here is that defendants have used a series of legal, potentially competitive practices to accomplish an unlawful effect on prices and markets. Such a claim of necessity requires the Court to examine both the history of the restraint and the restraint’s effect on competition, or traditional rule of reason analysis. In other words, plaintiffs will be required to prove not only that defendants combined, contracted or conspired but also that the agreements produced adverse anti-competitive effects within the relevant product and geographic markets, that the conduct was illegal, and that the contract formed was a proximate cause of plaintiffs’ injury. Int’l Logistics Group Ltd. v. Chrysler Corp., 884 F.2d 904, 907 (6th Cir.1989) (citing Crane & Shovel Sales Corp., 854 F.2d at 805). 3. The Relevant Market Having decided that the plaintiffs’ conspiracy claims are subject to a rule of reason analysis, the Court must determine whether or not the plaintiffs have established a relevant geographic market within which defendants have conspired with the resulting adverse anti-competitive effects. Plaintiffs argued in their complaint, and continue to argue, that the relevant geographic market is Federal Milk Market Orders 5 and 7. Before reaching the merits of an antitrust claim, it is necessary to identify the relevant market. Potters Medical Center v. City Hosp. Ass’n, 800 F.2d 568, 574 (6th Cir.1986); Smith v. Northern Michigan Hospitals, Inc., 703 F.2d 942, 954 (6th Cir.1983). The plaintiffs bear the burden of defining “the relevant market within which the alleged anticompetitive effects” of the defendants’ actions occur. See Kentucky Speedway, LLC v. National Ass’n of Stock Car Auto Racing, Inc., 588 F.3d 908, 916 (6th Cir.2009); Worldwide Basketball & Sport Tours, Inc., 388 F.3d at 962 (“Failure to identify a relevant market is a proper ground for dismissing a Sherman Act claim.”) (quoting NHL Players’Assoc., 325 F.3d at 719-20). A relevant market consists of both a product component and a geographic component. Kentucky Speedway, 588 F.3d at 916 (citing NHL Players’ Assoc., 325 F.3d at 719). Dr. Gordon Rausser was hired by the plaintiffs to define the relevant market in this case. The parties agree that the relevant product market is raw Grade A milk and that there is no reasonable interchangeability with a substitute product. Spirit Airlines, Inc. v. Northwest Airlines, Inc. 431 F.3d 917, 933 (6th Cir.2005). Therefore, the Court will turn to the issue of the relevant geographic market as defined by Dr. Rausser. In his report, Dr. Rausser concludes that the “relevant geographic market for Southeast dairy farmers is the area compromising Orders 5 and 7 because those Orders are treated as a common market, milk marketed in both orders is collectively pooled to arrive at an average blend price for both Orders, and Southeast farmers have severely limited options to move milk out of those Orders.” Rausser Rpt. p. 8. The relevant geographic market is “the area of effective competition.” Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961). That means “the market area in which the seller operates, and to which the purchaser can practicably turn for supplies.” Id.; see also White & White, Inc. v. Am. Hosp. Supply Corp., 723 F.2d 495, 503 (6th Cir.1983). Market definition is a highly fact-based inquiry. Foundation For Interior Design Educ. Research v. Savannah Coll. of Art & Design, 244 F.3d 521, 531 (6th Cir.2001). The Sherman Act applies with equal force to buyer side conspiracies, commonly referred to as monopsony. The Supreme Court has recognized that a conspiracy against buyers to stifle competition is as unlawful as one among sellers. Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co., 334 U.S. 219, 235, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). Where, as here, the plaintiffs allege a buyer-side conspiracy, the market is defined differently, requiring the Court “to reverse all of the factors involved in light of the buyer-side nature of the alleged activity.” Todd v. Exxon Corp., 275 F.3d 191, 201-02 (2d Cir.2001) (citing IIA Phillip E. Areeda, et al., Antitrust Law: an Analysis of Antitrust Principles and Their Application, ¶ 574 at 302 n. 12 (referring to a buyer-side analysis as the “mirror image” of the traditional seller-side market analysis)). In the context of a buyer-side conspiracy, “the market is not the market of competing sellers but of competing buyers. This market is comprised of buyers who are seen by sellers as being reasonably good substitutes.” Id. (quoting Roger D. Blair & Jeffrey L. Harrison, Antitrust Policy and Monopsony, 76 Cornell L.Rev. 297, 324 (1991)). Defendants correctly argue that courts consistently reject overly narrow geographic markets that ignore the “commercial realities” facing buyers and sellers or that unduly limit the “relevant area of effective competition.” Nilavar v. Mercy Health Sys., 244 Fed.Appx. 690, 698 (6th Cir.2007). They argue that the undisputed record here shows that at least 40% of the milk pooled in Orders 5 and 7 was produced elsewhere and that, in effect, Professor Rausser ignored the commercial realities by excluding these producers of raw milk from his analysis because they are within “the relevant area of effective competition” and impact significantly the supply of, demand for and price of raw milk in Orders 5 and 7. Defendants further argue that a relevant market may not be defined by reference to federal order boundaries, which were established for administrative purposes, and that defendants have not themselves treated Orders 5 and 7 as a relevant market. Plaintiffs respond with alternative arguments. First, they argue that the relevant market must be analyzed by reference to the available buyers in the relevant geographic market, not by reference to the available sellers of raw milk, and, secondly, even if it is required that determination of the relevant geographic market includes consideration that 40% of the raw milk is produced outside the relevant market as one of the commercial realities required to be considered, Professor Rausser has done so. Plaintiffs further argue that the federal milk marketing orders are relevant and a factor to be considered in determining the relevant geographic market and they further argue that defendants have, in fact, treated Orders 5 and 7 as a relevant geographic market. In short, plaintiffs argue that there are genuine issues of material fact to be decided by the jury which preclude a finding concerning the relevant market as a matter of law. Defendants, on the other hand, argue that there is no genuine issue of material fact, that Professor Rausser has not considered all of the economic realities in formulating his opinion, and that the Court should grant judgment as a matter of law. Although significant questions have been raised about Professor Rausser’s approach, especially the possible, and maybe total, lack of consideration by him of the raw milk flowing into Orders 5 and 7 from elsewhere, genuine questions of material fact do exist requiring the question of the relevant market to be submitted to the jury. As this Court has noted in other orders, plaintiffs may not be able to carry their burden of proof and convince the jury that the relevant market is Orders 5 and 7; however, that is not the question before the Court. Plaintiffs have established a jury question on the issue of the relevant geographic market. B. Monopolization, Monopsonization and Attempted Monopolization and Monopsonization — Counts Two, Three and Four Count Three of plaintiffs’ complaint alleges that DFA and DFA controlled entities possess monopoly power in the market for marketing and sales of fluid Grade A milk to fluid Grade A milk bottling plants in the southeast. Plaintiffs allege that DFA has maintained and enhanced its market dominance by unreasonably restraining trade, artificially and anti-competitively reducing the price of fluid Grade A milk purchased from plaintiffs and members of the class, eliminating competition from rival cooperatives and independent dairy farmers, and foreclosing and excluding competitors from access to fluid Grade A milk bottling plants by engaging in predatory and unlawful conduct. More specifically, plaintiffs allege that DFA has gained monopoly power through the very same acts alleged to have been engaged in by defendants in furtherance of their alleged § 1 conspiracy, [Complaint, ¶ 146]. Plaintiffs define the relevant geographic market as the southeast United States, comprised of Federal Milk Market Orders 5 and 7. They define the relevant product market as the market for sales or marketing of fluid Grade A milk to fluid Grade A bottling plants and the market for purchase of fluid Grade A milk by fluid Grade A milk bottling plants. They allege in their complaint that defendants control 77% of the fluid Grade A milk bottling capacity in the southeast, over 80% of the Grade A milk marketed in the southeast and 90% of the fluid Grade A milk produced in the southeast. In Count Four, plaintiffs make almost identical allegations against Dean and non-defendant co-conspirator bottlers for unlawful monopsonization. Count Two of the plaintiffs’ complaint alleges that the same defendants named in Counts Three and Four of the complaint have attempted to monopolize and monopsonize. Section 2 of the Sherman Act, 15 U.S.C. § 2, makes it illegal to “monopolize, (monopsonize), or attempt to monopolize (monopsonize) or combine or conspire to monopolize (monopsonize) any part or the trade or commerce among the several states ...” The offenses of monopolization/monopsonization, attempt to monopolize/monopsonize and conspiracy to monopolize/monopsonize are distinct causes of action and require different proofs. To establish a monopoly or monopsony under § 2 of the Sherman Act, plaintiffs must establish two elements: “1) possession of monopoly (or monopsony) power in the relevant market; and 2) willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 481, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). A claim for attempted monopolization (or monopsonization) requires: “(1) a specific intent to monopolize (or monopsonize); (2) anti-competitive conduct; and (3) a dangerous probability of success.” Tarrant Service Agency, Inc. v. Am. Standard, Inc., 12 F.3d 609, 615 (6th Cir.1993). Market strength that approaches monopoly (or monopsony) power, meaning the ability to control prices and exclude competition, is a necessary element for showing a dangerous probability of achieving monopoly (or monopsony) power in an attempt case. Tarrant Serv. Agency, 12 F.3d at 615; see also Smith Wholesale Co., Inc. v. Philip Morris USA, Inc., 219 Fed.Appx. 398, 409 (6th Cir.2007). In order to succeed on either a monopolization or attempt to monopolize claim, plaintiffs must establish the relevant market in which they compete [or do business] with the alleged monopolizer. See, e.g., Grinnell, 384 U.S. at 571-73, 86 S.Ct. 1698; Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 395-99, 396 n. 23, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 611-12, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). The relevant market consists of two components: product and service market and geographic market. Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The relevant product market is not at issue in this motion. A geographic market is “an area of effective competition.” Re/Max Int’l., 173 F.3d at 1016. The area is not defined by “metes and bounds,” but “is the locale in which consumers of a product or service can turn for alternative sources of supply.” Id.; see also White and White, Inc. v. American Hosp. Supply Corp., 723 F.2d 495, 501 (6th Cir.1983) (“[T]he area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies.”) (quoting Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961)). Thus, “[t]he first step in any action brought under § 2 of the Sherman Act is for the plaintiff to define the relevant product and geographic markets in which it competes with the alleged monopolizer, and with respect to the monopolization claim, to show that the defendant, in fact possesses monopoly power.” Conwood Co. v. United States Tobacco Co., 290 F.3d 768, 782 (6th Cir.2002) (citing Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 268-69 (2d Cir.1979)). The Supreme Court has defined monopoly power as “the power to control prices or exclude competition.” E.I. du Pont de Nemours & Co., 351 U.S. at 391. A plaintiff may establish that a defendant holds monopoly power by presenting either 1) direct evidence of actual control over prices or actual exclusion of competitors, or 2) circumstantial evidence showing a high market share within a defined market. Re/Max Int’l, Inc., 173 F.3d at 1016. Neither the Supreme Court nor the Sixth Circuit has adopted a uniform standard as to a percentage of market power that triggers monopoly (or monopsony) power for purposes of § 2. See e.g., Smith Wholesale Co., Inc., 219 Fed.Appx. at 409. The standard for monopoly power appears to be very high, and market share is typically a determining factor. See Grinnell, 384 U.S. at 570, 86 S.Ct. 1698. While market share might, in many instances, lead to an inference of monopoly (or monopsony) power, it is not, in and of itself, the only factor to consider. Amer. Council of Certified Podiatric Physicians and Surgeons v. Amer. Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 623 (6th Cir. 1999) (“[M]arket share is only a starting point for determining whether monopoly power exists, and the inference of monopoly power does not automatically follow from the possession of a commanding market share.”). In the Sixth Circuit, it appears that market share is a “starting point” in assessing market power and that the threshold is, indeed, very high. See Byars v. Bluff City News Co., Inc., 609 F.2d 843, 850 (6th Cir.1979) (finding that 75-80 percent or greater is a “starting point” in assessing monopoly power). See also Smith Wholesale Co., 219 Fed.Appx. at 409 (56% market share insufficient); Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1443 (6th Cir.1990) (19-29% market shares insufficient and “there is substantial merit in a presumption that market shares below 50 or 60% do not constitute market power” (quoting Areeda & Hovenkamp, Antitrust Law, Section 578.3 (1988 Supp.)); even a high market share, however, does not appear to be sufficient alone to determine a firm’s capacity to achieve monopoly or monopsony. Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 826 (6th Cir.1982) (citations omitted). The real test is whether defendants possess sufficient market power to achieve their aims. Id. at 826. “Market power is the power to force a purchaser (or seller) to do something that he would not do in a competitive market,” and it entails the “ability of one seller (or purchaser) to restrict output or raise prices.” PSI Repair Servs., Inc. v. Honeywell, Inc., 104 F.3d 811, 817 (6th Cir.1997) (quoting Eastman Kodak Co., 504 U.S. at 464, 112 S.Ct. 2072). In order for a Sherman Act claim to lie against a defendant, there must be a finding of market power. Hand v. Central Transp., Inc., 779 F.2d 8, 11 (6th Cir.1985). Defendants claim that plaintiffs cannot establish that DFA possessed, or had a dangerous probability of acquiring, monopoly power in the relevant market; that Dean possessed, or had a dangerous probability of acquiring, monopsony power in the relevant market; and that plaintiffs’ claim of shared monopoly fails as a matter of law. Plaintiffs predictably respond by arguing that both Dean and DFA have the necessary market power and they also make the somewhat strained argument that these counts “are not limited solely to Dean and DFA,” claiming that Court Two is a claim for attempt to monopolize and monopsonize “against all defendants acting in concert with other of the defendants,” (a somewhat nonsensical statement) and that Count Four is a claim for unlawful monopsony against Dean, NDH and DFA collectively. 1. Does DFA Possess, or Have a Dangerous Probability of Acquiring, Monopoly Power in the Relevant Market? As plaintiffs correctly argue, a plaintiff can demonstrate the possession of, or dangerous probability of acquiring, monopoly power in one of two ways. “The first is by presenting direct evidence showing the exercise of actual control over prices or the actual exclusion of competitors.” Re/Max Int’l v. Realty One, Inc., 173 F.3d at 1016. “The second is by presenting circumstantial evidence of monopoly power by showing a high market share within a defined market.” Id. Defendants argue that plaintiffs have neither direct nor circumstantial evidence that DFA possesses unilateral monopoly power. This Court agrees with defendants and the monopolization claim, Court Three, against DFA will be dismissed. As an initial matter, plaintiffs’ attempt to salvage their unilateral conduct claims by aggregating the market shares of various defendants is misplaced. “Market power under § 2 of the Sherman Act is ‘the ability of a single seller to raise prices and restrict output.’ ” Smith Wholesale Co., 219 Fed.Appx. at 409 (quoting Virgin Atl. Airways, Ltd. v. British Airways, 257 F.3d 256, 265 (2d Cir.2001)). Likewise, the Sixth Circuit has rejected the argument that market power may be measured by considering a combination of the market shares of more than one company. See Smith Wholesale Co., 219 Fed.Appx. at 409 (“[considering a combination of market shares of more than one company is an inappropriate measure of [ ] market power.”) (citing Arthur S. Langenderfer, 917 F.2d at 1433). Thus it seems quite clear, at least in the Sixth Circuit, that it is the ability of a single actor, exercising unilateral market power which is the relevant inquiry in a monopolization case. The plaintiffs appear to rely largely on the first method of demonstrating the possession of, or dangerous probability of acquiring, monopoly power. To prove monopoly power by presenting circumstantial evidence, it is the defendants’ market share which is the relevant inquiry, Re/Max Int’l., 173 F.3d at 1016, although “[mjarket share, standing along, is insufficient to establish market power as a matter of law and is only the starting point for determining whether monopoly power exists.” Smith Wholesale Co. v. Philip Morris USA, Inc., 2005 WL 1981452, at *8 (E.D.Tenn. August 17, 2005). Plaintiffs’ expert witness, Dr. Rausser, conducted no analysis of DFA’s market share or market power and indeed testified at his deposition that he held no opinion on these issues. Plaintiffs also argue, however, that they have direct evidence of DFA monopoly power. Plaintiffs point to evidence that DFA sets the price that both other cooperatives and independent dairy farmers receive for their milk and DFA’s use of fully supply contracts as direct evidence of DFA’s monopoly power. As plaintiffs acknowledge, DFA’s actions are not, in and of themselves, a violation of § 2. While the evidence is clear that DFA is a hard-nosed actor in the market, the evidence establishes only that DFA has market power, not that it has unlawful monopoly power. Thus, there is no material question of fact regarding DFA’s monopoly power. 2. Does Dean Possess, or Have a Dangerous Probability of Acquiring, Monopsony Power in the Relevant Market? Defendants make essentially the same arguments with respect to Dean’s possession of monopsony power in the market to buy raw milk that it makes with respect to the alleged monopolization by DFA of the market for raw milk. Once again, plaintiffs shared or combined market arguments fail with respect to the monopsonization claim for the same reason they fail with the respect to the monopolization claim. This Court also agrees with defendants that plaintiffs have not created an issue of material fact with respect to whether or not Dean possessed, or had a dangerous probability of acquiring, monopsony power in the relevant market. Plaintiffs have, in fact, attempted to show through circumstantial evidence Dean’s monopsony power by calculating its share of bottling capacity in Orders 5 and 7 at various points and times. While the various experts have reached different conclusions, it appears that the experts have calculated that Dean’s share of bottling capacity is around 40%. Even assuming that an examination of bottling capacity is relevant on the question of Dean’s share of the market alleged, i.e. purchases of raw Grade A milk by processing plants, it appears that these market share estimates are insufficient to establish monopsony power. Plaintiffs’ class expert, Dr. John C. Beyer, estimated Dean’s share of bottling capacity in Orders 5 and 7 as approximately 26% in 2002 and 41% in 2007. Dr. Rausser estimated Dean’s share of bottling capacity to be approximately 41.5% and Dr. Scott estimated Dean’s share at 43.4%, respectively, as of 2007. As set forth above, these percentages of market share, even assuming that they measure the correct market, do not meet the threshold of what it takes to establish monopoly or monopsony power. See Byars, 609 F.2d at 850 (finding that 75-80% or greater is a “starting point” in assessing monopoly power); Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, 935 (6th Cir.2005) (noting Judge Learned Hand’s explanation of when market share becomes large enough to constitute a monopoly: “over ninety ... percent [ ] is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough ... ”); Smith Wholesale Co., 219 Fed.Appx. at 409 (56% market share insufficient). Furthermore, the undisputed evidence is that existing competitors have expanded and new rivals have appeared during the relevant time period in Orders 5 and 7. Once again, plaintiffs also appear to rely on an argument that there is direct evidence that Dean possessed monopsony power in the market to buy raw milk or had a dangerous probability of acquiring such power. First, plaintiffs point to testimony from representatives of Dean’s main supplier, DFA, and its main competitor, NDH, to support its argument that Dean has the ability to control prices paid to sellers in the market. DFA’s director of customer relations, Frank Johns, testified that Dean would be a “deal breaker” in terms of implementing any price increase. Similarly, they point to testimony of NDH President Meyer who testified that NDH wouldn’t accept an over-order premium unless assured that Dean and other processors were accepting the same over-order premium. Specifically, he testified that “If Dean wouldn’t accept a premium, I wouldn’t accept the premium.” This testimony, however, tends only to establish that Dean is a major player, perhaps a leader, in the market, and that Dean has a degree of market power. It does not establish, however, that Dean has the ability to set prices at an anti-competitive level, despite Professor Rausser’s opinion to the contrary. Plaintiffs also point to proof which they say establishes that Dean excludes competition from the market, mainly evidence related to the Red Oak plant in Georgia and the acquisition and shut down of eight bottling plants in the southeast. These acquisitions and shut downs, however, do not necessarily constitute evidence of excluding competition and plaintiffs point to no evidence that Dean actually shuttered plants in order to prevent price competition. For these reasons, the Court finds that there is no genuine issue of material fact as to whether or not Dean possessed, or had a dangerous probability of acquiring, monopsony power in the relevant market and summary judgment will be granted as to Court Four. 3. Jointly Acquired Market Power As noted above, Court Two of plaintiffs’ complaint asserts a claim under § 2 of the Sherman Act for attempt to monopolize and monopsonize. Specifically, paragraph 134 of the complaint alleges: “DFA, both by itself and in combination with DFA-controlled market agencies DMS and SMA, has attempted to and continues to attempt to possess market power in the marketing and sales of fluid Grade A milk to fluid Grade A milk bottling plants in the southeast market and maintains a dominant position in the market for the purchase of fluid Grade A milk by fluid Grade A milk bottling plants in the southeast,” clearing alleging a scheme to monopolize. The complaint further alleges, in paragraph 137, that “Defendants have attempted to and continue to attempt to obtain market power in the purchase of fluid Grade A milk by fluid Grade A milk bottling plants in southeast market and they have acted with the specific intent to obtain a monopsony and use their market dominance in the bottling of fluid Grade A milk ...alleging a scheme on the part of defendants to monopsonize. Plaintiffs now recharacterize their Count Two claim as “a claim for attempt to monopolize and monopsonize against all defendants acting in concert with other of the defendants.” As set forth above, a claim for attempted monopolization requires specific intent to monopolize, anti-competitive conduct and dangerous probability of success. Tarrant Serv. Agency, 12 F.3d at 615. Apparently recognizing that they are unable to show sufficient market share on the part of any defendant to establish monopoly or monopsony power, plaintiffs appear to attempt in this count to aggregate market share in an effort to do what they cannot otherwise do. Such an approach, however, flies in the face of clear Sixth Circuit precedent. Although plaintiffs attempt rather feebly to distinguish the case, the Sixth Circuit has, by clear implication, rejected the “shared monopoly” theory of the plaintiffs. In the Smith Wholesale case, one which originated in this Court, the Sixth Circuit specifically held, when considering an attempted monopolization claim under § 2 of the Sherman Act, that “a combination of market shares of more than one company is an inappropriate measure of [ ] market power and that market power under § 2 relates t