Gulf States Reorganization Group, Inc. v. Nucor Corp. (822 F. Supp. 2d 1201, 2011)

MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

This matter is presently before the court on the Third Report and Recommendation of the Special Master Regarding Summary Judgment on Counts I and III of Gulf States Reorganization Group’s Amended Complaint (“Third Report”) (Doc. # 249), and the Report and Recommendation of the Special Master Regarding the Admissibility of Expert Testimony and Nucor’s Motion for Summary Judgment (“Fourth Report”) (Doc. # 305).

I. Introduction

A. Appointment of the Special Master

In light of the novelty of Plaintiffs theories in this case, and with the full consent of the parties (see Federal Rule of Civil Procedure 53(a)(1)(A)), the court appointed James F. Rill, Esq. as Special Master and referred certain matters' — including the motions addressed herein — to him for report and recommendation. (Doc. # 181). The parties had jointly proposed Mr. Rill as the best qualified candidate for Special Master. (Doc. # 180). Mr. Rill has served as Assistant Attorney General in charge of the U.S. Department of Justice’s Antitrust Division and as the Chairman of the ABA’s Antitrust Section. (Doc. # 180). He is without question one of the leading antitrust lawyers in the United States. The court is indebted to him for his high quality service and excellent work in this case.

B. Procedural History

In 2002, Gulf States Reorganization Group, Inc. (“GSRG” or “Plaintiff’) filed suit against Nucor Corporation (“Nucor”), Casey Equipment Corporation (“Casey”), and Gadsden Industrial Park, LLC (“Park”) alleging that they conspired to restrain trade and assist Nucor to monopolize the hot rolled coil steel industry. (See Doc. # 17). This court first dismissed this case upon Defendants’ motion to dismiss; however, on appeal, the Eleventh Circuit found that Plaintiff had pled a cognizable antitrust injury and had standing to bring suit. Gulf States Reorganization Group, Inc. v. Nucor Corp., 466 F.3d 961, 966-68 (11th Cir.2006).

Upon remand, the court permitted Plaintiff to amend its complaint. (See Doc. # 115). GSRG’s Amended Complaint alleges three counts. Count I alleges that Casey/Park and Nucor violated Section 1 of the Sherman Act by entering a contract or combination in restraint of trade. (Doc. # 115 at ¶¶ 39-42). Count II alleges that Nucor violated Section 2 of the Sherman Act by an “attempt to monopolize.” (Doc. # 115 at ¶¶ 43^45). Count III alleges that Nucor and Casey/Park violated Section 2 of the Sherman Act by a conspiracy to monopolize. (Doc. # 115 at ¶¶ 46-48). The First Amended Complaint makes no claim of “actual monopolization” in violation of Section 2 of the Sherman Act.

The Special Master reviewed the record and the briefs submitted by the parties, and entertained oral argument. Thereafter, the Special Master submitted his Reports and Recommendations. (Docs. #249, 305). After intense motions practice in this case, the court conducted a thorough review of the copious materials submitted in support of, and in opposition to, those motions.

The Special Master issued his First Report on Casey/Park’s Motion for Summary Judgment recommending summary judgment in favor of Casey/Park. (Doc. # 188). Thereafter, GSRG sought to have the Special Master consider supplemental evidence in connection with Casey/Park’s Motion. (Doc. # 199). The Special Master then re-considered Casey/Park’s motion in light of the supplemental evidence, and issued his Second Report and Recommendation affirming that summary judgment was still appropriate on Counts I and III even in light of the additional evidence. (Doc. #207). Thereafter, GSRG and Casey/Park resolved all issues between them. (Doc. # 208).

Remaining to be decided, however, was Nucor’s motion for summary judgment (or, rather, Nucor’s joinder in Casey/Park’s motion). (Docs. # 124, 210). On September 29, 2009, the Special Master issued his Third Report and Recommendation recommending that Nucor be awarded summary judgment on Counts I and III, the Section 1 and Section 2 conspiracy claims. (Doc. # 249).

The Special Master then considered the following motions: Nucor’s motion to exclude the testimony of Robert Crandall (Doc. #261); Nucor’s motion to exclude the testimony of Michael Locker (Doc. # 172); Nucor’s motion to exclude the testimony of John Correnti (Doc. # 175); GSRG’s motion to exclude the testimony of Andrew Dick (Doc. # 235); GSRG’s Motion to exclude the testimony of Dr. Seth Kaplan (Doc. # 237); and Nucor’s motion for summary judgment on all claims (Doc. # 269). In his Fourth Report, the Special Master recommended the following: Nu-cor’s motion to exclude the testimony of Robert Crandall (Doc. #261) be denied; Nucor’s motion to exclude the testimony of Michael Locker (Doc. # 172) be granted; Nucor’s motion to exclude the testimony of John Correnti (Doc. # 175) be granted; GSRG’s motion to exclude the testimony of Andrew Dick (Doc. # 235) be granted; GSRG’s Motion to exclude the testimony of Dr. Seth Kaplan (Doc. #237) be denied; and that Nucor’s Motion for Summary Judgment (Doc. # 269) be granted. (Doc. # 305).

Having now carefully reviewed and considered de novo all of the materials in the court file, including the Third Report and the Fourth Report, the objections, responses, and replies thereto, and oral argument by the parties on the objections to the Third Report, the court has made its own independent determination that the Third and Fourth Reports of the Special Master are due to be adopted and accepted. The court writes further to address some of Plaintiffs objections.

II. Standard of Review

This case is before the court on objections filed by GSRG as to the Reports filed by the Special Master. The court reviews de novo all objections to legal conclusions recommended by the Special Master. See Fed.R.Civ.P. 53(f)(4). A different standard of review applies to the Special Master’s decisions regarding procedural matters. Those rulings may only be set aside for an abuse of discretion. See Fed. R.Civ.P. 53(f)(5).

The principal legal issues presented here are the propriety of summary judgment and the admissibility and effect of certain expert witnesses proffered by GSRG.

A. Summary Judgment Standard

Summary judgment is appropriate when “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). “Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdiet for the non-movant.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir.1993)). In making this assessment, the court must view the evidence “in the light most favorable to the nonmoving party.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.2007) (citing Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir.1999)). But while that is the case, “[a] court need not permit a case to go to a jury ... when the inferences that are drawn from the evidence, and upon which the non-movant relies, are ‘implausible.’ ” Mize, 93 F.3d at 743 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 592-94, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Alternatively, there is no genuine issue of material fact if “the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which the party will bear the burden of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Consequently, the court “must view the evidence presented through the prism of the [movant’s] substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 5. Ct. 2505, 91 L.Ed.2d 202 (1986).

To respond, the non-moving party “may not rely merely on allegations or denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” Fed.R.Civ.P. 56(e)(2). Importantly, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

Contrary to GSRG’s suggestion, Rule 56 is no longer a disfavored procedural shortcut. Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548 (“Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ”) (quoting Fed.R.Civ.P. 1). This is true even in antitrust cases, “where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984).

The court candidly acknowledges that, historically, summary judgment was disfavored in antitrust litigation. For example, in Poller, the Supreme Court concluded that “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Id. at 473, 82 S.Ct. 486. However, the cases which indicated that summary judgment is disfavored in antitrust cases have been disavowed.

In 1986, the Supreme Court reversed the denial of summary judgment in a major predatory pricing decision, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The Supreme Court’s reversal was based on its conclusions: 1) that the predatory pricing conspiracy was so economically implausible that the defendants had no motive to engage in it; and 2) that the evidence of an agreement to enter into this conspiracy was indirect and ambiguous.” Instructional Systems Development Corp. v. Aetna Casualty & Surety Co., 817 F.2d 639, 646 (10th Cir.1987). Although Matsushita upheld the traditional view that on summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, the opinion is important because it held that “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348. Also it held that to survive a motion for summary judgment the plaintiff “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Id. (quoting Monsanto Co., 465 U.S. at 764, 104 S.Ct. 1464).

To be sure, while the summary judgment standard of Rule 56 to be applied in an antitrust suit is the same as that for any other action, the application of the rule to antitrust cases is somewhat unique: “[Ajntitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case ... conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citing Monsanto Co., 465 U.S. at 764, 104 S.Ct. 1464); see also Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317, 1323 (4th Cir.1995) (“[Ijnferences which may be drawn vary from one substantive area of the law to another____”). Thus, in the antitrust context, “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (citing Monsanto, 465 U.S. at 764, 104 S.Ct. 1464).

“[Sjummary judgment may be especially appropriate in an antitrust case because of the chill antitrust litigation can have on legitimate price competition.” McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1493 (11th Cir.1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989) (citing Matsushita, 475 U.S. at 595, 106 S.Ct. 1348). Therefore, an antitrust plaintiff must present evidence that tends, when interpreted in a light most favorable to plaintiff, to exclude the possibility that defendant’s conduct was consistent with permissible competition as with illegal conduct. Id. Indeed, Matsushita stands for the proposition that summary judgment in the antitrust context is equally as valid as in other types of cases.

B. Admissibility of Expert Testimony Standard

Federal Rule of Evidence 702 governs the admissibility of expert witness testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualifíed as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. The Supreme Court has instructed that Rule 702 compels the district court to act as a “gatekeeper” in determining the admissibility of expert scientific evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 n. 7, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (en banc). “This function ‘inherently require[s] the trial court to conduct an exacting analysis’ of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.” Frazier, 387 F.3d at 1260 (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.2002)).

The Eleventh Circuit employs a “rigorous three-part inquiry” in assessing whether to admit expert testimony: (1) the expert must be qualified to testify competently regarding the matters he intends to address, (2) the methodology must be reliable under Daubert, and (3) the testimony must assist the trier of fact through the application of scientific, technical, or specialized expertise to understand the evidence or determine a fact in issue. Hendrix ex rel., G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir.2010); accord Frazier, 387 F.3d at 1260. The proponent of the expert testimony bears the burden of proving that the testimony satisfies each prong by a preponderance of the evidence. Hendrix, 609 F.3d at 1194; Frazier, 387 F.3d at 1274.

In Daubert the Supreme Court provided a list of relevant factors to consider in making a determination that an expert’s methodology was reliable: (1) whether the theory or technique “can be (and has been) tested,” (2) “whether the theory or technique has been subjected to peer review and publication,” (3) “in the case of a particular scientific technique, ... the known or potential rate of error,” and (4) whether the theory or technique is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786; accord Frazier, 387 F.3d at 1262. Even so, this list is non-exhaustive and district courts have “substantial discretion” in determining how to test an expert’s reliability. Hendrix, 609 F.3d at 1194 (quotation marks omitted).

The admissibility of an expert witness’ testimony is undoubtedly a procedural matter governed by federal rules. Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir.1997); Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1207 (11th Cir.1995). Rule 53(f)(5) provides that “[ujnless the appointing order establishes a different standard of review, the court may set aside a master’s ruling on a procedural matter only for an abuse of discretion.” Fed.R.Civ.P. 53(f)(5). United States v. Douglas, 489 F.3d 1117, 1124 (11th Cir.2007) (when reviewing a district court’s ruling on the admissibility of expert testimony for an abuse of discretion and the circuit court will “defer to the district court’s ruling unless it is manifestly erroneous.”). Further, “[t]he subordinate role of the [special] master means that the trial court’s review for abuse of discretion may be more searching than the review that an appellate court makes of a trial court.” Fed.R.Civ.P. 53 Advisory Committee’s Note, 2003 amendments; Maine People’s Alliance v. Holtrachem Mfg. Co., LLC, 2009 WL 1844990, at *2 (D.Me. June 25, 2009).

III. Background

Plaintiffs allegations in this case have previously been set forth by this court (Doc. # 96) and summarized by the Eleventh Circuit. Gulf States Reorganization Group, Inc. v. Nucor Corp., 466 F.3d 961 (11th Cir.2006). “This is a Sherman Act antitrust case, alleging a contract and combination in restraint of trade and an attempt and conspiracy to monopolize the market for hot-rolled coil steel in the Southeastern United States.” (Doc. # 115). Specifically, GSRG maintains the following claims against Defendant Nucor Corporation in this case: (1) a claim that Nucor violated Section 1 of the Sherman Act by entering into a contract or combination in restraint of trade (Count I); (2) a conspiracy to monopolize claim under Section 2 of the Sherman Act (Count II); and (3) an attempted monopolization claim under Section 2 (Count III).

In his Third Report, the Special Master addressed Nucor’s potential liability on Counts I and III, despite Casey/Park’s dismissal from the case. (Doc. # 249). In that Third Report, the Special Master recommended that summary judgment be granted in favor of Nucor on Counts I and III of the Complaint. (Doc. # 249 at 3). The Special Master based this recommendation on his conclusion that the record was devoid of evidence that Casey/Park shared with Nucor a common objective to restrain trade, and that Casey/Park was neither aware of, nor acquiesced in, Nu-cor’s alleged anticompetitive intent. (Doc. # 249 at 12) .

In his Fourth Report, the Special Master considered various motions to exclude expert testimony and Nucor’s Motion for Summary Judgment on all of Plaintiffs claims. (Doc. # 305). The Special Master recommended: (1) that the testimony of Dr. Robert Crandall, GSRG’s expert, be allowed; (2) that the testimony of John Correnti and Michael Locker, GSRG’s experts, be excluded; (3) that the testimony of Andrew Dick, Nucor’s expert, be excluded; (4) testimony of Dr. Seth Kaplan, Nu-cor’s expert should be allowed. (Doc. # 305 at 29). Thereafter, considering only the expert testimony he believed properly admitted, including that of GSRG’s primary expert, the Special Master recommended that summary judgment be granted in favor of Nucor on all claims. (Doc. #305 at 38-45). The reasons for this recommendation set forth in the Fourth Report are in addition to the grounds that he previously recommended granting summary judgment on Counts I and III in his Third Report. (Doc. # 305 at 45).

IV. The Court’s Review of the Special Master’s Third Report

On December 12, 2007, Casey/Park moved for summary judgment on Counts I and III of GSRG’s First Amended Complaint, the Section 1 and Section 2 Conspiracy Claims. (Doc. # 118). Before considering the motion, the Special Master afforded the parties the opportunity to present any additional evidence and argument that they wished the Special Master to consider in issuing his report and recommendation. (Doc. #249 at 2). The parties presented oral argument to the Special Master on the motion on November 19, 2008. (Id.) The Special Master issued his First Report and Recommendation on Casey/Park’s motion on January 5, 2009 recommending summary judgment on Counts I and III. (Doc. # 188).

After the Special Master’s Second Report and Recommendation, GSRG and Casey/Park resolved all issues between them. (Doc. #208). Remaining to be decided however was Nucor’s Motion for Summary Judgment (or, rather, Nucor’s joinder in Casey/Park’s motion). (Docs # 124 and 210). GSRG briefed the issue of Nucor’s potential liability under Counts I and III despite Casey/Park’s dismissal, and the parties were afforded the opportunity to argue the issue to the Special Master on July 30, 2009. (Doc. #249 at 3). GSRG argued that Nucor could be held liable under Counts I and III despite Casey/Park’s dismissal. GSRG further presented a new theory of liability, ie., that Nucor could be held liable for Section 1 conspiracy based upon agreements with parties other than Casey/Park. (Doc. # 249 at 3). On September 29, 2009, the Special Master issued his Third Report and Recommendation recommending that Nucor be awarded summary judgment on Counts I and III, the Section 1 and Section 2 conspiracy claims.

A. GSRG’s Argument That Summary Judgment is Precluded by the Law of the Case Doctrine is Meritless

One of GSRG’s objections to the Special Master’s Reports on summary judgment is that his recommendations are foreclosed by the law of the case doctrine. In particular, GSRG argues that the Eleventh Circuit’s opinion issued prior to remand, Gulf States Reorganization Group, Inc. v. Nucor Corp., 466 F.3d 961 (11th Cir.2006), cert. denied, 551 U.S. 1103, 127 S.Ct. 2920, 168 L.Ed.2d 244 (2007), previously decided, on the merits, the issues which the Special Master addressed in his Reports. The argument is frivolous.

The law of the case doctrine “operates to create efficiency, finality, and obedience within the judicial system.” Allapattah Servs., Inc. v. Exxon Corp., 372 F.Supp.2d 1344, 1363 (S.D.Fla.2005) (quoting Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir.1987)). Under the doctrine, “the findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” This That & the Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 1283 (11th Cir.2006) (quoting Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir.1990)).

The law of the case doctrine encompasses issues previously “decided by necessary implication as well as those decided explicitly.” Wheeler v. City of Pleasant, 746 F.2d 1437, 1440 (11th Cir.1984) (quoting Dickinson v. Auto Center Mfg. Co., 738 F.2d 1092, 1098 (5th Cir.1983)) ; see also Schiavo v. Schiavo, 403 F.3d 1289, 1291 (11th Cir.2005) (“The doctrine operates to preclude courts from revisiting issues that were decided explicitly or by necessary implication in a prior appeal.”).

The issue addressed by the Eleventh Circuit panel prior to remand was whether GSRG had satisfied the requirement of demonstrating antitrust standing, Gulf States, 466 F.3d at 968, not whether Nu-cor and Casey/Park engaged in concerted activity that could violate Section 1, conspired to monopolize, or attempted to monopolize. Id. at 967-68. This court’s decision, which was reversed by the Eleventh Circuit, concluded that: “(1) The Group lacked Article III standing because it did not show that the defendants had caused its injury; (2) the Group lacked ‘antitrust standing’ because it failed to demonstrate ‘antitrust injury,’ that is to say injury of the sort that the antitrust laws are meant to redress; and (3) the defendants’ actions could not constitute a violation of the antitrust laws because they increased competition in the bankruptcy auction.” Id. at 965. What is abundantly clear, however, is that this court’s decision, which was reversed by the Eleventh Circuit, was based on the fact that GSRG’s injury was essentially self-inflicted. GSRG had the available cash to make a conforming cash bid to purchase the steel mill assets (“Assets”) at issue and chose to make a non-eon-forming bid, despite knowledge that such a bid would be rejected. The bankruptcy trustee even gave GSRG additional time to make a conforming bid. This court’s prior decision was issued at an early stage in the litigation after only limited discovery as to most of the factual issues that were eventually presented to the Special Master to consider.

The Eleventh Circuit panel considered only the issues of causality and antitrust injury. The issues addressed by the Special Master were not before the Eleventh Circuit-directly or indirectly. Indeed, as the Eleventh Circuit opinion made absolutely clear: “Our intention is to express no opinion at all with respect to the merits.... ” Id. at 969, n. 7; id. at 967 (“We decline to address the merits”). Notably, the Eleventh Circuit states that its opinion is based on “assertions” made by GSRG that “if it can prove” might establish that the effect of its conduct lessened competition. Id. at 967. Specifically, the Eleventh Circuit’s opinion states as follows:

The Group asserts the following: (1) Nucor is by far the dominant producer in the relevant market, enjoying a market share of 85%; (2) the Group wanted to and had the ability both to purchase the Assets and to compete with Nucor in the relevant market; (3) the Assets would constitute substantially all of the assets necessary for a potential entrant into the market to begin operations and compete; (4) Nucor was thus obliged not to bid against the Group, the preferred purchaser for the Assets; (5) Appellees violated the merger laws by having Nu-cor participate in the bidding by funding Park’s bid; and (6) Appellees’ conduct was a proximate cause of the Group’s failure to purchase the assets and its exclusion from the relevant market.

The Group contends that, if it can prove these assertions, this would mean that Nucor maintained its purported near-monopoly and denied consumers in the relevant market the benefit of the pressure to lower prices that would likely come about if the Group became a viable competitor, thus substantially lessening competition and violating the antitrust laws.

We decline to address the merits; that is, we decline to address whether the foregoing contentions of the Group wotild in fact substantially lessen competition in the relevant market and violate the antitrust laws. However, we conclude that the district court erred in concluding that the Group had failed to show antitrust standing.

Id. at 967 (emphasis added and footnote omitted).

And just to drive the point home, the Eleventh Circuit’s opinion included footnote 4 which states:

We decline to address the merits because the district court has not addressed this issue as it is properly framed, and because resolution of the issue will require further development of the record and further fact-finding with respect to whether the challenged acquisition had the effect of substantially lessening competition in the relevant market. Thus, we vacate the district court’s holding on the merits.

Id. at 968, n. 4 (emphasis added).

GSRG’s “law of the case” argument assumes that the Eleventh Circuit’s decision implicitly decided issues which the Court of Appeals, specifically and by the very terms of its opinion, did not address. Therefore, GSRG’s “law of the case” argument is off base.

B. Count I — GSRG’s Sherman Act Section 1 Claim

1. Legal Standards

Section 1 of the Sherman Act provides as follows:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations, is declared to be illegal.

15 U.S.C. § 1. Thus, by its own terms, Section 1 condemns every contract, combination, or conspiracy when these concerted actions are “in restraint of trade or commerce.” GSRG frequently uses the words “contract” and “combination” instead of “conspiracy.” However, as the Eleventh Circuit has noted that “[djespite the different terminology, there is no magic unique to each term. Courts use the words ‘contract,’ ‘combination,’ and ‘conspiracy’ interchangeably, and sometimes simply refer instead to an ‘agreement.’ ” Tidmore Oil Co. v. BP Oil Co./Gulf Products Div., 932 F.2d 1384, 1388 (11th Cir.1991) (citing 6P. Areeda, ANTITRUST LAW ¶ 1403 (1978)). Moreover, in his treatise, Professor Areeda notes that in virtually every case, it is not necessary to distinguish these terms from one another:

The courts sometimes speak of “combination,” sometimes of “conspiracy,” or sometimes simply of the non-statutory term “agreement.” They usually use these terms interchangeably, and the use of one term does not imply any distinction between them. When there is sufficient concert of action to implicate the purposes of the Sherman Act, the statute is applied without any need or attempt to classify that concerted action as a contract, a combination, or a conspiracy. This is the consistent course of the decisions, and generally it seems correct.

6 P. Areeda & H. Hovenkamp, Antitrust Law, (“Areeda”) ¶ 1403 at 20 (3d ed.2010) (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 445 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978) (“We perceive no distinction between the terms combination and conspiracy____”)).

To be sure, the Sherman Act distinguishes unilateral from concerted action. The Sherman Act contains a “basic distinction between concerted and independent action ... The conduct of a single firm is governed by § 2 alone and is unlawful only when it threatens actual monopolization ... Section 1 of the Sherman Act, in contrast, reaches unreasonable restraints of trade effected by a ‘contract, combination ... or conspiracy’ between separate entities. It does not reach conduct that is ‘wholly unilateral.’” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (citations and footnote omitted). Accordingly, while different courts have expressed the elements of a Section 1 claim in different (but not necessarily inconsistent) ways, this much is clear: an essential element of any Section 1 claim is a showing of concerted action. That is, Section 1 applies only to agreements between two or more businesses or persons; it does not cover unilateral conduct. Fisher v. City of Berkeley, 475 U.S. 260, 266, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986) (“Even where a single firm’s restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under § 1 in the absence of agreement.”). See also Monsanto Co., 465 U.S. at 761, 104 S.Ct. 1464 (noting that it is fundamental that a plaintiff establish an agreement between two or more persons to restrain trade; unilateral conduct is not prohibited by § 1); American Key Corp. v. Cole, 762 F.2d 1569, 1579 n. 8 (11th Cir.1985) (“conspiracy is an essential element of all Section 1 violations”); Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1455 (11th Cir.1991) (“Liability will only attach to agreements designed unreasonably to restrain trade in, or affecting, interstate commerce; thus, before analyzing the reasonableness of any alleged restraint on trade, courts must first ensure that an agreement to restrain trade exists.”). To be sure, the Supreme Court has cautioned lower courts that Section 1 “does not declare every combination between two ‘persons’ to be illegal,” but only those “ ‘hereby declared to be illegal.’ ” Copperweld Corp., 467 U.S. at 769 n. 15,104 S.Ct. 2731. Thus, concerted action within the meaning of Section 1 conspiracy “cannot be understood as it might be in ordinary parlance, to reach any and all forms of joint activity by two or more persons,” Virginia Vermiculite, Ltd. v. Historic Green Springs, 307 F.3d 277 (4th Cir.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1900, 155 L.Ed.2d 824 (2003), but “must be construed in a[ ] refined manner” and “defined consonant with its role in the antitrust analysis.” Id. at 281-82. To determine whether a given joint activity is an antitrust conspiracy, the Supreme Court has directed courts to “explain the logic underlying Congress’ decision to exempt unilateral conduct from [Section] 1 scrutiny, and to assess whether that logic similarly excludes the conduct” challenged by the plaintiff. Copperweld, 467 U.S. at 776,104 S.Ct. 2731.

The “logic” underlying the Section 1 ban on collusion between marketplace competitors is that such combinations “deprive[] the marketplace of the independent centers of decisionmaking that competition assumes and demands.” Id. at 768-69, 104 S.Ct. 2731. That is why Section 1 treats concerted activity between multiple actors “more strictly” than Section 2 treats single-party conduct — “[i]n any conspiracy, two or more entities that previously pursued their own interests separately are combining to act as one for their common benefit. This not only reduces the diverse directions in which economic power is aimed but suddenly increases the economic power moving in one particular direction.” Id. at 768-69, 104 S.Ct. 2731. The danger is obvious. When “parties combine (i.e., bring into concert) their resources, rights, or economic power in such a way as to counteract naturally competing interests that would otherwise set them at odds,” Virginia Vermiculite, 307 F.3d at 282, they are able “to avoid ... market choices that would set them at odds” in the asserted market, id. at 283 n. *, to the detriment of competition and consumers. The “core concern” of Section 1 thus is when “competitors cooperate to substitute common action for competition and thereby effect an anticompetitive restraint that could not otherwise be achieved.” Areeda, ¶ 1402a3, at 10.

Thus, for example, in Virginia Vermiculite, a non-profit historic preservation entity, which was the donee of a gift deed of land containing valuable vermiculite deposits, was the second party that allegedly “conspired” with another defendant that operated in the vermiculite market. 307 F.3d at 279-80. Judge Luttig, writing for the Fourth Circuit, held that such joint action did not satisfy the “concerted activity” requirement under Section 1, because, “[f]irst and foremost, [the donee’s] receipt of the gift did not reflect a merging of the two defendants’ rights, resources, or economic power.” Id. at 283. The court concluded that the mere act of accepting the donation did not create the concerted action required to support a Section 1 claim, because no evidence was presented that the organization — as opposed to the monopolist — had “exercised any form of right, resource, or economic power” of its own to implement the monopolist’s allegedly anticompetitive scheme. In so holding, the court “reaffirm[ed] what was made clear by Copperweld, that concerted activity susceptible to sanction by section 1 is activity in which multiple parties join their resources, rights, or economic power together in order to achieve an outcome that, but for the concert, would naturally be frustrated by their competing interests (by way of profit-maximizing choices).” Id. at 282; see Copperweld, 467 U.S. at 769, 104 S.Ct. 2731. In such circumstances there is no basis for antitrust conspiracy liability. Id.; see also Golden v. Kentile Floors, Inc., 475 F.2d 288, 290-91 (5th Cir.1973) (“Supreme Court precedents make clear that participation in a combination is illegal only when, at the minimum, it manifestly results from the family of procompetitive or anticompetitive objectives related to the relevant market.”). Here, just as in Virginia Vermiculite, Ltd., there is simply no showing that “the parties combine[d] (i.e., [brought] into concert) their resources, rights, or economic power in such a way as to counteract naturally competing interests that would otherwise set them at odds.... ” Virginia Vermiculite, Ltd., 307 F.3d at 282.

The clear prerequisites to avoiding summary judgment in antitrust conspiracy cases have been established by the Supreme Court and consistently applied by our circuit court. " See Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (“conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy”); Monsanto, 465 U.S. at 764, 104 S.Ct. 1464 (“the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that [the alleged conspirators] ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective’ ”) (quoting Edward J. Sweeney, 637 F.2d at 111).

These standards were summarized by the Eleventh Circuit in Seagood Trading Corp.:

The threshold requirement of every conspiracy claim, under both Section 1 and Section 2, is an agreement to restrain trade. To prove that such an agreement exists between two or more persons, a plaintiff must demonstrate “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). We recognize that it is only in rare cases that a plaintiff can establish the existence of a conspiracy by showing an explicit agreement; most conspiracies are inferred from the behavior of the alleged conspirators. DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1515 (11th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990). Antitrust law, however, limits the range of inferences that may be drawn from circumstantial evidence to prove an unlawful conspiracy. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To make out a conspiracy, and thus survive a motion for summary judgment, the circumstantial evidence must reasonably “tend[] to exclude the possibility” that the alleged conspirators acted independently. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). This means that “conduct as consistent with permissible [activity] as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348. For example, the mere opportunity to conspire among antitrust defendants does not, standing alone, permit the inference of conspiracy. Bolt v. Halifax Hosp. Medical Center, 891 F.2d 810, 827 (11th Cir.1990), cert. denied, 495 U.S. 924, 110 S.Ct. 1960, 109 L.Ed.2d 322 (1990). Thus, when the defendant puts forth a plausible, pro-competitive explanation for his actions, we will not be quick to infer, from circumstantial evidence, that a violation of the antitrust laws has occurred. Todorov v. DCH Healthcare Auth., 921 F.2d 1488, 1456 (11th Cir.1991).

Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573-74 (11th Cir.1991) (parallel citations omitted). See also U.S. Anchor, 7 F.3d at 1002 (“Federal antitrust law requires a plaintiff to introduce evidence that tends to exclude the possibility that the defendants acted independently or legitimately.”); Todorov, 921 F.2d at 1456 (“Thus, when the defendant puts forth a plausible, procompetitive explanation for his actions, we will not be quick to infer, from circumstantial evidence, that a violation of the antitrust laws has occurred; the plaintiff must produce more probative evidence that the law has been violated.”); Bolt, 891 F.2d at 819 (“When relying on circumstantial evidence to prove the existence of a conspiracy, a plaintiff must first show a non-legitimate motive for entering into such a conspiracy.”) These are precisely the evidentiary standards applied by the Special Master here. (See Doc. # 188 at 4-5, 16-19). Thus, the first element of a Section 1 claim is proof of an agreement to restrain trade, and significant probative evidence of a conspiracy is an essential element of all Section 1 violations. First National Bank v. Cities Service Co., 391 U.S. at 290, 88 S.Ct. 1575.

2. Analysis of GSRG’s Conspiracy Claim

As noted above, “[a] key inquiry in any case brought under Section 1 is whether the challenged conduct consists of concerted action or of the merely unilateral behavior of separate actors ...” William C. Holmes, Antitrust Law Handbook § 2:2 (2008-2009 Edition). “For an agreement to constitute a violation of Section 1 of the Sherman Act, a 'conscious commitment to a common scheme designed to achieve an unlawful objective’ must be established.” Toscano v. Professional Golfers Association, 258 F.3d 978, 983 (9th Cir.2001) (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. 1464). As the Special Master aptly noted “[t]he facts of this case present the infrequent, but not unprecedented, question of whether a company’s agent [here, Casey/Park] should be held liable for Section 1 conspiracy where the agent had some role in facilitating the restraint.” (Doc. #188 at 5). The Areeda treatise draws a distinction between “pawns” and “principal actors” due to the pawn’s “subordinate role in performing a discrete, designated task at the direction of [its] principal.” 7 Areeda ¶ 1474 at 308. As is the case here with Casey/Park, “[t]he pawn is not a competitor whose rivalry is being coordinated. Nor is the pawn a marketplace actor whose ... behavior is being constrained. Rather, the pawn is relevant to antitrust policy only because it assists the principal actor’s marketplace behavior.” Id. The Areeda treatise also explains why findings of pawn liability under Section 1 are rare.

In our economy sales through brokers or other intermediaries are ubiquitous, and they are not complicity in vertical restraints simply because they were employed in a transaction later challenged as anticompetitive.

Id. at ¶ 1474(c), p. 317.

Simply put, GSRG’s claim that Casey/Park conspired with Nucor does not trigger the “core concern” addressed by Sherman Act Section 1. That is the case because Casey/Park and Nucor do not compete with each other and Casey/Park lacks any economic interest in the state of competition in the relevant market. The Special Master correctly determined that Section 1 only prohibits “activity in which multiple parties join their resources, rights, or economic power together in order to achieve an outcome that, but for the concert, would naturally be frustrated by their competing interests (by way of profit-maximizing choices).” (Doc. # 188 at 7, quoting Virginia Vermiculite Ltd., 307 F.3d at 282). GSRG has expressly admitted that neither Casey nor Park have ever had an economic interest in any market for the sale of hot rolled coil steel or in the state of competition in any such market. (Doc. # 120 ¶¶ 3-15). And notwithstanding GSRG’s strained arguments that Casey contributed “resources” in the transaction with Nucor (Doc. # 190 at 6,16), there is no evidence that Casey or Park ever acted in a way that was inconsistent with their respective usual business activities or contributed resources that reflected any economic power or other interest in the purported relevant market. “[T]he Sherman Act does not prohibit unreasonable restraints of trade as such — but only restraints effected by a contract, combination, or conspiracy....” Copperweld Corp., 467 U.S. at 775, 104 S.Ct. 2731. The Special Master properly held that part of the proof of the “contract, combination, or conspiracy” requires proof of a “conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co., 465 U.S. at 764, 104 S.Ct. 1464. Under the circumstances of this case, the Special Master properly concluded that this required some showing of Casey/Park’s objective, separate and apart from the fact of entering into the facially neutral contract with Nucor. Eleventh Circuit precedent is in agreement, despite GSRG’s attempts to distinguish the relevant cases. See U.S. Anchor Mfg., 7 F.3d at 1002; Seagood Trading Corp., 924 F.2d at 1573-74. In both of these cases, evidence of written agreements between the alleged conspirators was insufficient to obviate the need for some proof of an objective to restrain trade on the part of the alleged pawn or subordinate. The same is true here as to Casey/Park’s objective. As the Third Circuit explained in Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 212 (3d Cir.1992), “the emphasis is upon the participant’s ‘commitment to [the] scheme [which is] designed to achieve an unlawful purpose’ which is crucial.” Thus, the Special Master properly recommended summary judgment based on the lack of proof of Casey/Park’s “commitment to the scheme.”

The court concludes that the Special Master applied the proper standards in assessing summary judgment, requirements that are firmly established by controlling Supreme Court and Eleventh Circuit precedent, and which call upon GSRG to present evidence (1) that tends to exclude the possibility that the alleged unlawful conduct of Casey and Park was the result of legitimate business activity rather than an unlawful conspiracy and (2) that demonstrates that those companies made a conscious commitment to a common scheme designed to achieve an unlawful objective. See, e.g., Matsushita, 475 U.S. at 588, 106 S.Ct. 1348; Seagood Trading, 924 F.2d at 1573-74.

Perhaps sensing the difficulty it would have in meeting the requirements of Monsanto and Matsushita^ GSRG makes the astounding argument that the written contract between Nucor and Casey/Park is itself direct evidence of concerted conduct causing anticompetitive harm. {See Doc. # 255 at 4-5). The Special Master rejected that argument and this court similarly finds that it is off the mark. That is, the court concludes that the contract at issue does not in itself restrain trade.

Again, in Seagood Trading, the Eleventh Circuit made clear that analyzing concerted action is the starting point in assessing a Section 1 claim:

The threshold requirement of every conspiracy claim, under both Section 1 and Section 2, is an agreement to restrain trade. To prove that such an agreement exists between two or more persons, a plaintiff must demonstrate “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.”

924 F.2d at 1573 (emphasis added) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946)).

As GSRG has indicated in its briefing, “[t]he primary legal issue in this case ... concerns how the requirement of proof of a common ‘objective’ should be applied” in the context of this case. (Doc. # 251 at 8). Plaintiff argues that the objective of the contract between Nucor and Casey/Park was anticompetitive, i.e., to exclude GSRG from the hot rolled steel coil market. (Id. at 8, 9). More specifically, GSRG argues that “the apparent objective of the NucorCasey contract was dismantling and export of the former Gulf States Steel plant. Where the objective of a contract is the elimination of nascent competition in the relevant market, Section 1 is properly invoked.” (Id. at 10). And it is that passage from GSRG’s written argument that demonstrates the critical flaw in its argument on this point. That is, GSRG has made a leap in logic that is simply not supported by the record because the contract’s purpose is to purchase goods, not eliminate competition or restrain trade.

In other words, the contract’s purpose was to define the relationship between Nu-cor and Casey regarding the acquisition of the steel mill assets, and the terms under which that asset acquisition would take place. That was the objective of the contract — the purchase of the steel mill assets. Nucor may well have had an ulterior objective in entering the contract — to exclude GSRG from the market. But there is nothing in the contract, its terms, or the circumstances of its agreement that indicates (much less presents substantial evidence that) Casey’s objective was anything other than the acquisition of steel assets for resale.

Obviously there is no requirement that GSRG establish “an intent on the part of the coconspirators to restrain trade or to build a monopoly” for a Section 1 conspiracy claim. Bolt, 891 F.2d at 819-20 (internal citation omitted). To avoid the swing of the summary judgment axe, however, GSRG is required to present “evidence that reasonably tends to prove” that Casey/Park and Nucor “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co., 465 U.S. at 764, 104 S.Ct. 1464. And while GSRG is certainly permitted to rely upon circumstantial evidence to support its Section 1 claim, Supreme Court precedent has limited the “range of inferences that may be drawn from circumstantial evidence to prove an unlawful conspiracy.” Seagood, 924 F.2d at 1574.

It bears repeating that “[cjonduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348. Indeed, “the mere opportunity to conspire among antitrust defendants does not, standing alone, permit the inference of conspiracy.” Seagood, 924 F.2d at 1574. As the Eleventh Circuit has also warned, “when the defendant puts forth a plausible, procompetitive explanation for his actions, we will not be quick to infer, from circumstantial evidence, that a violation of the antitrust laws has occurred.” Id. GSRG has not presented the required evidence that “tend[s] to exclude the possibility that the alleged conspirators acted independently.” Id. (quoting Monsanto, 465 U.S. at 764,104 S.Ct. 1464).

The Special Master succinctly articulated the essence of (and the flaw in) Plaintiffs argument regarding the contract between Nucor and Casey:

Plaintiff incorrectly adumbrates that somehow “contract, combination, and conspiracy” and “restraint of trade” are independent elements such that once an agreement regarding the economic event is shown, all that is needed for liability is evidence of one party’s illegal act affecting the economic event. The correct interpretation is that the joint meeting of the minds must incorporate the illegal restraint and, thus, those elements are inextricably intertwined.

(Doc. # 188 at 4). In this case, the only joint action agreed to by Casey/Park on the one hand, and Nucor on the other was an ordinary commercial brokerage arrangement. GSRG’s assertion that any “concerted activity” can be deemed a Section 1 violation without evidence of a conscious commitment to an unlawful objective is, quite simply, not just off the market’s not the law. One need look no further than the Eleventh Circuit’s Sea-good decision to understand this point. In Seagood, the alleged conspirators, Long John Silver’s (“LJS”) and MartinBrower (“M-B”), had entered into contracts for M-B to provide services to LJS. 924 F.2d at 1558-60. Nevertheless, applying the standards established in Matsushita and Monsanto, the court of appeals affirmed the grant of summary judgment for M-B, concluding that there was no direct evidence of the alleged conspiratorial conduct and that the inferences drawn by the plaintiff from circumstantial evidence were not sufficient to implicate M-B in the alleged unlawful conspiracy. Id. at 1573-76.

In U.S. Anchor Mfg., Inc. v. Rule Industries, Inc., one of the cases cited by GSRG, the Eleventh Circuit held that there was “insufficient evidence linking [the pawn] with Rule’s scheme to constitute a conspiracy under the substantive proof requirements of federal antitrust law” despite the existence of a contract between which was related to the alleged restraint of trade. 7 F.3d 986, 1002 (11th Cir.1993). Notwithstanding GCRG’s citation to it, U.S. Anchor simply does not support its argument. In U.S. Anchor, the plaintiff alleged that the principal defendant, Rule, allegedly had conspired with one of its suppliers, Tie Down, to drive Rule’s competitor out of the relevant market by predatory pricing. The focus of the conspiracy claim was a report from Tie Down to Rule regarding the plaintiffs costs of production, which allegedly was used by Rule to carry out its anticompetitive, below-costs pricing tactic. 7 F.3d at 989-90, 1002. Again, therefore, “joint action ... was a given.” The Eleventh Circuit, however, concluded that Tie Down was entitled to judgment as a matter of law, holding that there was insufficient evidence of the alleged conspiracy involving that company. Id. at 1001-02. As in Seagood, the court stated that “a section 1 claim and a section 2 conspiracy to monopolize claim require the same threshold showing — the existence of an agreement to restrain trade.” Id. at 1002 (quoting Seagood, 924 F.2d at 1576).

3. Analysis of the Contract

The contract at issue in this case does not, by its own terms, link the “pawn” with Nucor’s alleged scheme in order to establish a conspiracy. Accordingly, as the Special Master correctly noted, it is incumbent upon GSRG to present evidence in addition to the contract that tends to link Casey/Park to Nucor’s scheme to survive summary judgment. (Doc. # 249 at 11). Proof that Nucor alone may have had an intent to monopolize or restrain trade is not enough to establish the contract, combination or conspiracy in unreasonable restraint of trade. U.S. Anchor Mfg., Inc., 7 F.3d at 1002 (although there was sufficient evidence to show an intent to achieve an unlawful objective on Rule’s part, there was insufficient evidence linking the pawn to Rule’s efforts to support a finding of conspiracy between them).

In U.S. Anchor, the Eleventh Circuit further stated that “[federal antitrust law requires a plaintiff to introduce evidence that tends to exclude the possibility that the defendants acted independently or legitimately.” U.S. Anchor Mfg., Inc., 7 F.3d at 1002 (citing Bolt v. Halifax Hosp. Medical Ctr., 891 F.2d 810, 820 (11th Cir.1990), cert. denied, 495 U.S. 924, 110 S.Ct. 1960, 109 L.Ed.2d 322 (1990), appeal after remand, 980 F.2d 1381 (11th Cir.1993) and Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)) (emphasis added). There are a myriad of undisputed legitimate reasons for Casey/Park to enter into the agreement in question with Nucor. Don Casey has testified about his extensive involvement in evaluating the Gulf States Steel assets long before he had any contact with Nucor about those assets, and that he initially contacted Nucor about the possible purchase of those assets before he was later contacted by Nucor’s Vice President, Mr. Rutkowski. Mr. Casey also described Casey’s purchase of various assets from the Gulf States Steel plant and his company’s efforts to be involved in some manner in the liquidation of those assets. (Doc. # 12 at ¶¶ 23-30, 36-38, 40-41).

Moreover, the mere fact that Casey/Park entered into an agreement to perform its usual business, even if it was at a higher profit than usual, does not show that it conspired to do anything other than make money. GSRG argues that the profit margin should have alerted it to the fact that Nucor had ulterior motives in hiring Casey/Park, but that is not enough and there is no evidence that Casey/Park entered into the agreement with a shared objective to achieve those alleged unlawful ends.

Casey’s business is buying and selling used steel manufacturing equipment. It not only had prior dealings with Nucor, but also did business with most steel manufacturers in the United States. Casey’s business was in no way dependent on Nu-cor and, in fact, Casey had made its own independent efforts to be appointed by the Bankruptcy Judge and Bankruptcy Trustee to be the liquidator for the Gulf States equipment. Moreover, for approximately two years prior to the September 2002 bankruptcy auction, Casey had tried repeatedly to get a contract with Gulf States Steel and the Trustee to liquidate the Gulf States Steel property and equipment. (Doc. # 96 at 11). Casey inspected the Gulf States Steel property and equipment on a number of occasions in 2000 and 2001 and was very familiar with those assets. Mr. Casey attended the May 2001 auction on Casey’s behalf, bid on several items at the auction, and successfully purchased some of the Gulf States Steel assets that were auctioned. Casey also purchased additional assets from the Gulf States Steel bankruptcy estate before the May 2001 auction. (Doc. # 96). Here, there is no evidence at all (direct or otherwise) that Casey/Park knew of any objective of Nu-cor other than to participate in the purchase and resale of the Gulf States Steel assets in order to make a profit. And as GSRG admits, the two sides ultimately made a profit.

Furthermore, Casey/Park had an independent reason for wishing to sell off Gulf States’s assets: it would provide the financing to purchase the property and develop it into an industrial park, something that the record indicates Casey/Park is currently doing on a profitable basis. In light of these facts, GSRG simply has fallen short of the required showing that Casey/Park’s reasons for entering into the agreement with Nucor were anything other than legitimate. Here, Casey/Park’s “conduct [is] as consistent with permissible [activity] as with illegal conspiracy [and therefore] does not, standing alone, permit the inference of conspiracy.” Seagood Trading, 924 F.2d at 1574 (citations omitted). In its response to GSRG’s objections to the Special Master’s Third Report, Nucor outlines the reasons that Plaintiffs objections to the Rule 56 determinations made in the Report are without merit. (Doc. # 253 at 14-17). Nucor’s response is right on target. Moreover, in each instance, this is the critical failure in GSRG’s objections: Whether they are taken individually or together, Casey/Park’s acceptance of the contract provisions complained of by GSRG is explained just as much by its normal business practice as by GSRG’s assertions of anticompetitive objective. In this case, and in light of GSRG’s shotgun arguments, the legal point cannot be overstated: Where the evidence supporting a conspiracy claim is this equivocal, the Supreme Court has determined that it is insufficient to avoid summary judgment. Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (citing Monsanto and holding that “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy”).

Finally, GSRG’s repeated contention that Casey/Park “should have known” or “suspected” Nucor’s “apparent” objective (e.g., Doc. # 190 at 8, 11-12, 14-15, 20) is not only speculative but also invokes a negligence standard that is simply foreign to any requirement under the antitrust laws. To survive a Rule 56 challenge, GSRG must present evidence that Casey knew of and “consciously committed” to Nucor’s allegedly anticompetitive objective to monopolize a relevant antitrust market. There is simply no such evidence in the record.

C. To Whatever Extent It Has Attempted To Do So, GSRG May Not Assert a Brand New Theory of Section 1 Liability

The Special Master also recommended that the court find untimely any attempt by GSRG to assert a new theory of liability — namely, that GSRG can avoid summary judgment here by asserting that Nucor conspired with other actors besides Casey/Park. The court agrees with the Special Master that “[a]t this stage of the case, it would be manifestly un[fair] to entertain GSRG’s argument that Section 1 conspiracies could be found to exist with other actors.” (Doc. #249 at 4; Doc. # 305 at 4) (footnotes omitted). GSRG did not put forward its new theory until July 30, 2009, almost seven years after it filed this case. (Compare Doc. # 1, and Doc. # 115, with Doc. # 305, p. 4). There was never a single mention by GSRG of any additional conspirators or other contracts anywhere in the Complaint or Amended Complaint (see Docs. # 1, 115), nor in any of the summary judgment papers (see e.g., Docs. # 129, 216). Indeed, it was not until t