In re Polyurethane Foam Antitrust Litigation (152 F. Supp. 3d 968, 2015)

United States District Court for the Northern District of Ohio 2015-02-09

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER RE: SUMMARY JUDGMENT

JACK ZOUHARY, District Judge.

INTRODUCTION

More than four years have passed since law enforcement authorities on two continents executed raids of some of the world’s largest manufacturers of flexible polyurethane foam, on suspicion that some or all of the raided firms were active in a price-fixing conspiracy. Details of the search warrant and affidavit used in" the United States raids became known after an inadvertent public filing on a federal court docket.

Dozens of lawsuits followed, filed by direct arid indirect purchasers of foam products, who range from a person who purchased a foam pillow to large, corporations like Ford Motor and Serta Mattress. The cases were consolidated in this Court for pretrial proceedings. .

Millions of pages of discovery, hundreds of fact and expert witness depositions, and extensive motion ■, practice ensued. This Court certified a nationwide class of direct purchasers (“Direct Purchasers”). The Carpenter Defendants, Leggett & Platt, Vitafoam, Inc. (“Vitafoam USA”), and Vita-foam Products Canada Ltd. (‘Vitafoam Canada”) settled with Direct Purchasers. Defendant Woodbridge Foam Fabricating, Inc. (“Woodbridge Fabricating”) and two related non-defendant entities pled guilty to federal criminal charges for price-fixing in violation of the Sherman Act.

In six Motions for Summary Judgment (five individual motions and one joint motion), the non-settling Defendants (“Defendants”) now seek to end the Direct Purchasers’ case (Docs. 1321-22, 1324-25, 1328-29). In more than four hundred pages of briefing, the parties argue the legal conclusions that must be drawn from a summary judgment record that overflows seven bankers boxes. This Court heard oral argument on the Motions (Doc. 1458). Its ruling'follows.

Standard of Review

Summary Judgment Standard

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is.entitled to judgment as a matter of law.” Federal Civil Rule 56(a). This Court must “consider all facts in the light most favorable to the non-movant and must give the non-movant the benefit of every reasonable inference.” Spirit Airlines, Inc. v. Niv. Airlines, Inc., 431 F.3d 917, 930 (6th Cir.2005) (internal quotation marks omitted). It may not weigh the evidence or make credibility judgments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But, “[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.” Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 341 (6th Cir.2006) (internal quotation marks omitted).

It would be “imprecise” to describe the summary judgment standard,. applied to an antitrust case, as “stringent.” Hyland v. HomeServs. of Am., Inc., 771 F.3d 310, 318 (6th Cir.2014). “[I]n defending against summary judgment, [Direct. Purchasers] need not ‘eliminate all possible independent justifications [offered] by [Defendants],’ so that ‘only evidence of concerted action would be left in the record.’ They need, rather, to produce ‘evidence that tends to exclude the possibility of independent action.’” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1365 (3d Cir.1992) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)) (brackets and emphasis omitted). “[I]n this circuit, courts are generally reluctant to use summary judgment dispositions in antitrust actions due tó the critical role that intent and motive have in antitrust claims ánd the difficulty of proving conspiracy by means other than factual inference.” In re Se. Milk Antitrust Litig., 739. F.3d 262, 270 (6th Cir.2014) (internal quotation marks omitted).'

Not just any evidence will create a triable' issue, however. “[A] conspiracy may be demonstrated by direct or circumstantial evidence.” Re/Max Intern., Inc. v. Realty One, Inc., 173 F.3d 995, 1009 (6th Cir.1999). Cf Monsanto, 465 U.S. at 768, 104 S.Ct. 1464. Distinctions in Direct Purchasers’ evidence of conspiracy are important.

Direct evidence of a- conspiracy is evidence that is “tantamount to an acknowledgment of guilt.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 662 (7th Cir.2002). Such evidence will generally preclude summary judgment. See In re Publication Paper Anti trust Litig., 690 F.3d 51, 63-64 (2d Cir.2012) (collecting cases). Given the critical role of such evidence, this Court must carefully assess Direct Purchasers’ alleged “direct” evidence to ensure it fits the legal description for such evidence: it “must be evidence that is explicit and requires no inferences to establish the proposition or conclusion being asserted.” Hyland, 771 F.3d at 318 (citing In re Baby Food Antitrust Litig., 166 F.3d 112, 118 (3d Cir.1999)).

“[Everything else including ambiguous statements” is circumstantial evidence of conspiracy. In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 662 (emphasis omitted). “[Antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An antitrust plaintiff must “present evidence that tends to exclude the possibility that the alleged conspirators acted independently ... [I]n other words, [an antitrust plaintiff] must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.” Id. (internal quotation marks omitted). The “tends to exclude” standard “simply represents an explication of th[e] requirement, [that inferences of conspiracy drawn from the evidence be “reasonable”]; it does not represent a new hurdle. In other words, evidence creates the requisite reasonable inference of conspiracy if it tends to exclude the possibility that the alleged conspirators acted independently.” Williamson Oil Co. v. Philip Morris, USA, 346 F.3d 1287, 1303 (11th Cir.2003) (internal quotation marks omitted). “[D]eterminations as to the reasonableness of the inferences "that c[an] be drawn from the evidence ... [are]-threshold legal determinations ... appropriately” made by a district court. Id. at 1304.

Courts “have been cautious in accepting inferences from' circumstantial évidence in cases involving allegations of horizontal price-fixing among oligopolists” because the “theory of interdependence” in such markets holds that oligopolists may engage in parallel pricing behavior-even price at supracompetitive levels— without an express or tacit price-fixing agreement. In re Flat Glass Antitrust Litig., 385 F.3d 350, 358-59 (3d Cir.2004) (some internal quotation marks omitted) (collecting cases). Still, as the Sixth Circuit recently explained:

Evidence of “conscious parallelism” ... can support [a price-fixing] claim based upon circumstantial evidence. As the district court put it, “When competitors in a concentrated market establish their prices, not by agreement, but rather in a consciously parallel fashion, this may provide probative evidence of an understanding between competitors to fix prices.” However, that is not necessarily the case: Because of their mutual awareness, oligopolists’ decisions may be interdependent although arrived at independently. Thus, the law is settled that proof of consciously, parallel business behavior is ■ circumstantial evidence from which an agreement, tacit or express, can be inferred but that such evidence, without more, is insufficient unless the circumstances under which it occurred make the inference of rational, independent choice less attractive than that of concerted action.

This court has set out the following considerations, sometimes referred to as “plus factors,” in determining when circumstantial evidence amounts to a finding of concerted action: 1) whether defendants’ actions, if taken independently, would be contrary to their economic interests; 2) product uniformity; 3) whether the defendants have been uniform in their actions; 4) whether the defendants have exchanged or have had the opportunity to exchange information relative to the alleged conspiracy; and 5) whether the defendants have a common motive to conspire or have engaged in a large number of communications. However, circumstantial evidence alone cannot support a finding of conspiracy when the evidence is equally consistent with independent conduct.

Hyland, 771 F.3d at 319-20 (internal citations and some quotation marks omitted).

The parties’ respective tasks at summary- judgment may also be affected by a related feature of antitrust law: “broader inferences are permitted [with respect to circumstantial evidence], and the ‘tends to exclude standard’ is more easily satisfied, when the conspiracy is economically sensible for the alleged conspirators to undertake and ‘the challenged activities could not reasonably be perceived as procompetitive.’” In re Publication Paper Antitrust Litig., 690 F.3d at 63 (quoting In re Flat Glass Antitrust Litig., 385 F.3d at 358). See also Matsushita Elec., 475 U.S. at 588-92, 106 S.Ct. 1348.

Generally, Direct Purchasers’ conspiracy theory is not “economically senseless.” Rather, “[t]he charge is of a garden-variety price-fixing conspiracy.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 661. It makes “perfect sense” for Defendants to join with other dominant producers of slabstock and underlay to agree on the timing and amount of foam price increases. If successful, the conspiracy would allow each Defendant to enter customer-specific price negotiations with (at least) two powerful tools, to affect prices: (1) an assurance that all Defendants offered similar price increases; and (2) a higher announced price increase than would be produced if, in the absence of an agreement, each Defendant had independently crafted price increase letters. See Ezzo’s Investments, Inc. v. Royal Beauty Supply, Inc., 94 F.3d 1032, 1036 (6th Cir.1996).

As this Court applies these principles to Direct Purchasers’ evidence, it also must avoid certain “traps” common in antitrust summary judgment practice: it must reject Defendants’ invitations to weigh or credit evidence; it must hot “suppose that if no single item of evidence presented by the plaintiff points unequivocally to conspiracy, the evidence as a whole cannot defeat summary judgment”; and it must “distinguish between the existence of a conspiracy and its efficacy.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 655-56. An antitrust plaintiff is entitled to the full force of its evidence, considered as a whole. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). An antitrust defendant is likewise entitled to a careful assessment of the evidence as it relates to that defendant. In re Vitamins Antitrust Litig., 320 F.Supp.2d 1, 19 (D.D.C.2004).

Sherman Act

Section 1 of the Sherman Act prohibits “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Not all alleged restraints of trade are analyzed the same. “[W]hen a restraint is found to be proscribed per se, the plaintiff need only prove that (1) two or more entities engaged in a conspiracy, .■.: (2) to effect a restraint or combination prohibited per se ..., (3) that was the-proximate cause of the plaintiffs antitrust -injury.” Expert Masonry, Inc., 440 F.3d at 342 (internal citations omitted). Horizontal price-fixing conspiracies have long been deemed per se violations. See, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647, 100 S.Ct. 1925, 64 L.Ed.2d 580 (1980) (per curiam). Depending on the nature of the alleged anticompetitive conduct, Calif. Dental Ass’n v. F.T.C., 526 U.S. 756, 770-71, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999), a restraint that is not a per se violation receives traditional rule-of-reason or quick-look treatment, Realcomp II, Ltd. v. F.T.C., 635 F.3d 815, 825 (6th Cir.2011),

“[Selection of a mode of [antitrust] analysis is entirely a question of law.” But “numerous factual questions,” like-the:.“terms of the allegedly anticom-petitive agreement,” underpin- that “purely legal decision.” In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d 728, 733-34 (8th Cir.2014) (internal quotation marks and brackets omitted). If, after drawing all reasonable inferences in Direct Purchasers’ favor, there is no triable issue on the conspiracy as alleged, a different analysis might apply. See Cont. Cablevision of Ohio, Inc. v. Am. Elec. Power Co., 715 F.2d 1115, 1118-19 (6th Cir.1983) (explaining that “the dissemination of price information is not itself a per se violation of the Sherman Act” and is permissible absent a “purpose or effect to restrain competition, or some other evidence of an actual agreement to restrain competition”) (quoting in part United States v. Citizens & S. Nat'l Bank, 422 U.S. 86, 113, 95 S.Ct. 2099, 45 L.Ed.2d 41 (1975)). First things first. This Court assesses the evidence of conspiracy to determine whether the record supports jury-triable horizontal-price-fixing claims.

Proof of Conspiracy

The parties agree that, as a general matter, a jury would apply the same principles of conspiracy law whether this case were a criminal prosecution or a civil proceeding (see, e.g., Doc. 1325-1 at 13 n. 5; Doc. 1343 at 60-65). Direct Purchasers must produce “direct or circumstantial • evidence that reasonably tends to prove that [Defendants] ... had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto, 465 U.S. at 768, 104 S.Ct. 1464. “To join a conspiracy ... is to join an agreement, rather than a group.” United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). “No formal agreement is necessary to constitute an unlawful conspiracy. ... The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in any exchange of words.' Where the circumstances are such as to warrant a jury in finding that the conspirators had a. unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.” Am. Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946) (internal citation omitted). Direct Purchasers must pose a jury question as to whether each Defendant knew of “the essential nature of the plan and their connection[] with it.” Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947).

A jury can infer agreement to join the conspiracy from a defendant’s actions. United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir.1990). But, “the importance of the [Defendant’s] connection [with the conspiracy] need not be great.” United States v. Betancourt, 838 F.2d 168, 174 (6th Cir.1988). “Once the existence of a conspiracy is shown, the evidence linking an individual defendant to that conspiracy need only be slight.” United States v. Pritchett, 749 F.3d 417, 431 (6th Cir.2014) (brackets and internal quotation marks omitted). If a plaintiff establishes a defendant’s membership in a conspiracy, withdrawal from the conspiracy is an affirmative defense. See United States v. Brown, 332 F.3d 363, 374 (6th Cir.2003).

Direct Purchasers allege “one conspiracy to increase the prices of flexible foam,” a “conspiracy [that] included slab-stock and underlay” (Doc. 1348 at 132) (emphasis in original). “[A] single conspiracy is not converted into multiple conspiracies merely because there may be some changes in persons involved or because they play different roles.” United States v. Rugiero, 20 F.3d 1387, 1391 (6th Cir.1994). Nor does a single conspiracy fragment into multiple conspiracies because a member does not “know every other member” or “know of or become involved in all of the activities in furtherance of the conspiracy.” . United States v. Warner, 690 F.2d 545, 549 (6th Cir.1982).

Antitrust Injury

Direct Purchasers “must show more than a conspiracy in violation of the antitrust laws; they must show an injury to them resulting from the illegal conduct.” Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348. Direct Purchasers must create genuine disputes of material fact regarding “injury-in-fact and proximate caus[ation].” They must make the same showing with respect to “[antitrust injury,” or “injury of the type the, antitrust laws were intended to prevent ... [and which] flows from that which makes defendants’ acts unlawful.” In re Cardizem CD Antitrust Litig., 332 F.3d 896, 909 (6th Cir.2003) (internal quotation marks omitted).

However, the thrust of Defendants’ antitrust-injury arguments is not that Direct Purchasers’ injury is not of a type the antitrust laws were intended to prevent. Rather, Defendants argüe that, even assuming the jury could reasonably find knowing participation in a conspiracy, Direct Purchasers fail to produce admissible (or common) proof of injury. As part of that argument, Defendants attack Direct Purchasers’ principal source of impact evidence, the expert testimony of Dr. Jeffrey Leitzinger. For the second time in this litigation, Defendants argue Leitzinger’s testimony is so unreliable that it should be excluded under - Federal Evidence Rule 702. Defendants similarly attack the testimony of Dr. Abba Krieger, a statistician retained by Direct Purchasers to comment on Leitzinger’s model. (Because Krieger’s testimony does not alter this Court’s decision on the Motions, this Court does not resolve the Daubert Motion'to the extent it targets Krieger.) ' This Court previously set'forth the standard for resolving a Rule 702 motion in its Memorandum Opinion and Order denying Defendants’ first motion to exclude Leitzinger’s testimony (see Doc. 1101 at 2-4).

Fraudulent Concealment

“Any action to enforce any cause of action under [the Clayton Act] .., shall be forever barred unless commenced within four years after the cause of action accrued,” 15 U.S.C. § 15b, measured from the date a plaintiff suffers injury, Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Section 15b therefore bars recovery for any antitrust claims that'accrued before December 2006, four years prior to the filing of the lawsuits later collected in the Consolidated Amended Class Action Complaint. But, the limitations period can be tolled if Direct Purchasers prove by a preponderance of the evidence that Defendants fraudulently concealed the basis for their claims. .

“To toll a limitations period on this basis, a plaintiff must show .(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the basis of [the plaintiffs] cause of action within the limitations period; -and (3) plaintiffs due diligence until discovery of the facts.” Hamilton County Bd. of Comm’rs v. NFL, 491 F.3d 310, 315 (6th Cir.2007) (internal quotation marks omitted). “[Affirmative concealment must be shown; mere silence or unwillingness to divulge wrongful activities is not sufficient.” Browning v. Levy, 283 F.3d 761, 770 (6th Cir.2002) (internal quotation marks omitted). Actions that would “deceive' a reasonably diligent plaintiff will toll the statute; but those plaintiffs who delay unreasonably in investigating circumstances that should put them on notice will be foreclosed from filing, once the statute has run.” Id. If a plaintiff has “[information sufficient to alert a reasonable person to the possibility of wrongdoing,” the plaintiff faces “a duty to inquire into the matter with due diligence.” Au Rustproofing Ctr., Inc. v. Gulf Oil Corp., 755 F.2d 1231, 1237 (6th Cir.1985). “[I]n evaluating the due-diligence element, the court should evaluate ... acts of active concealment as a factor in determining whether the plaintiffs investigation was reasonable under the circumstances.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 447 (6th Cir.2012). “Fraudulent concealment ... may be established through the acts of co-conspirators.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 538 (6th Cir.2008).

Discussion

Direct Purchasers’ Price-Fixing Theory

Direct Purchasers’ conspiracy theory is that Defendants and their co-conspirators communicated and reached agreements and understandings on the percentage amount and effective date of price increases for both slabstock and underlay. Periodic increases in the primary raw materials used to make flexible foam (polyols, TDI, and MDI — “chemicals”) served as a pretext for price coordination with respect to slabstock. Similarly, increases in the primary raw material used to make underlay (scrap foam) served as a pretext for price coordination with respect to underlay. Direct Purchasers argue Defendants generally coordinated and revealed price increases using price increase announcements (“PIAs”) that (1) -attributed the foam price increase to a recent or projected increase in chemicals or scrap pricing, (2) announced a flat percentage price increase for all foam products, for slabstock products, or for underlay products, and (3) identified the date on which the percentage price increase would become effective. Then, after releasing PIAs to customers, Defendants would exchange published PIAs during the “implementation period” — the time between the PIA’s publication date and the date on which the PIA stated the percentage price increase would take effect — as a means of verifying that coordination had taken place. Coordinated price increases provided Defendants a higher, unified starting point for the eus-tomer-by-customer price negotiations that followed release of a PIA than would have resulted if each Defendant independently set price increases (Doc. 1343 at 25, 33).

In response, all or some Defendants argue the following propositions:

• there is no evidence of an “express” or “global” and “overarching” agreement to coordinate the content and timing of PIAs, and any circumstantial evidence of communications between competitors or of market structure does not tend to exclude the possibility that Defendants acted independently in writing PIAs;

• the testimony of the Cooperating Defendants either does not implicate any Defendant or reflects only episodic, bilateral understandings between Defendants with respect to a few PIAs;

• Direct Purchasers posit that the flexible foam industry is oligopolistic in nature (or at least resembles an oli-gopolistic industry), with almost all costs of production concentrated (in the case of slabstock) in chemical pricing or (in the case of underlay) scrap pricing and the cost of certain binding agents; . .

• any observed parallelism, in PIA terms is a natural, lawful feature of an oli-gopolistic industry, one in which price decisions depend on supply and demand factors, as well as strategic considerations of competitors’ likely pricing decisions;

• PIAs did not always (or even often) translate into increases in actual “transaction prices,” meaning the amount a particular customer would pay; . '

• because transaction prices are negotiated on a .customer-by-customer basis, it would be impossible for the members of the alleged price-fixing conspiracy to monitor transaction prices, rendering the alleged conspiracy implausible in the absence of any ability to detect cheating or enforce the terms of the agreement; . .

• Defendants intensely competed for foam business or otherwise acted in ways inconsistent with membership in a price-fixing conspiracy — some De- ■ fendants (like Flexible Foam) expanded their foothold in the.market, other Defendants (like Foamex — later FXI) lost market share, other Defendants (like Future Foam) played only small roles in certain segments of flexible foam industry throughout the Class Period, and still other Defendants (like Mohawk and Woodbridge) never produced or sold products that Direct Purchasers allege were part of the conspiracy.

In opposing summary judgment, Direct Purchasers point to several categories of evidence, which provide, the structure for this Court’s review of the summary judgment record:

1. Purported “direct evidence” of conspiracy;

2. Evidence of parallel business behavior;

3. Price ‘discussions between Defendants, which account for much of the volume of Direct Purchasers’ evidence, including: Defendants’ own e-mails and faxes; discussions between Defendants facilitated by scrap brokers; the testimony of employees of Canadian flexible foam producers who admit direct involvement in competition law violations affecting sales in the United States and (Direct Purchasers argue) implicate Defendants in the same conspiracy; and the guilty plea of Woodbridge Fabricating and two related non-defendant entities;

4. Claims that Defendants’ price discussions with one another ran counter to their independent economic interest’s;

5. Other “plus factors” evidence, in- .. eluding, market structure, opportunities Defendants had to conspire during the Class Period, and Defen- . dants’ motives to enter into a price-fixing conspiracy; and

6. Certain current and former Defendant employees’ Fifth Amendment invocations during depositions.

Direct Evidence of Conspiracy

Direct Purchasers assert (Doc. 1343 at 70): .

[T]here is overwhelming direct evidence of a conspiracy among Defendants and their co-conspirators to increase the prices of foam. There are numerous documents memorializing direct communications among executives of. Defendants-in furtherance of the conspiracy, as demonstrated by the Appendices.

Defendants have admitted specific conspiratorial acts [including- Domfoam, Valle Foam, the Vitafoam Defendants, and Woodbride Fabricating].... Phone records included in these Appendices detail numerous calls among Defendants during price increase announcement periods, ' vario'us witnesses have testified that Defendants communicated with each other about prices, arid other witnesses 'have invoked their Fifth Amendment right in response to questions about this conspiracy.

However,- none- of this material is “direct evidence” of conspiracy as to the moving Defendants.

Direct Purchasers’ evidence of competitor communications and opportunities to communicate is (at best) circumstantial evidence of conspiracy (see, e.g., id. at 40) (discussing Doc. 1343-14 at 21, an e-mail in which a Flexible Foam salesman tells his Regional Vice President of Sales that the salesman has other competitors’ PIAs without explaining the provenance of such letters). When scrutinized closely (as this Court has done), the so-called Cooperating Defendant evidence reveals no admissions of guilt on the part of the Defendants who now move for summary judgment. See In re Publication Paper Antitrust Litig., 690 F.3d at 64. Though Defendants sometimes recounted in e-mails the substance of phone calls with competitors, the dozens of call logs included in the summary judgment record simply show that, on a certain day and time, one senior Defendant employee called another. With no additional context, such evidence standing alone is as consistent with lawful conduct (e.g., a call to discuss purchase of a Defendant’s flexible foam plant) as it is with collusion (e.g., a call to discuss coordination of the next round of PIAs). Nor does a Defendant employee’s- Fifth Amendment- assertion lead, without any connecting inference, to the conclusion that the witness -or Defendant joined in an antitrust conspiracy (see Doc; 1343-at 65-66). Finally, this Court has • reviewed the 32-volUme Opposition Appendices. Direct evidence- of conspiracy does not hide there, either.

Except for ' Woodbridge Fabricating, each of the non-settling Defendants denies it engaged in any form of price-fixing, and Woodbridge' argues this lone guilty plea disproves Direct Purchasers’ theory. In sum, Direct Purchasers point to no specific “evidence that is explicit and requires no inferences to establish the ... conclusion” that any of these Defendants erigagéd in price-fixing. See Hyland, 771 F.3d at 318 (internal quótation marks omitted). This Court “must therefore analyze [Defendants’] motion[s] for summary judgment under the standards articulated” in Monsanto, Matsushita, and related cases. In-terVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 163 (3d Cir.2003).

Parallel Pricing

Without direct evidence of agreement, Direct Purchasers’ claiiris depend on circumstantial evidence and á'theory of parallel pricing behavior resulting from coordination among competitors. Therefore, Direct Purchasers must show questions of fact that Defendants engaged in parallel business behavior. See Apex Oil Co., 822 F.2d 246, 253 (2d Cir.1987). Defendants attempt to show th'ey did not price in parallel by emphasizing differences in PIA publication dates, effective dates, or announced percentage price increases (see, e.g., Doc. 1328-1 at 15-16). Direct Purchasers, on the other hand, assemble and compare Defendants’ PIAs on a quarterly basis (see, e.g., Doc. 1328-3 at 121-22). Direct Purchasers also note that Defendants-did not move in the alternative for partial summary judgment, claiming (for example) that a jury could not find a conspiracy-existed prior to.the 2005 Hurricane season.

While a jury may find Defendants’ more discriminating review of PIA parallelism more persuasive than Direct Purchasers’ quarterly analysis, Direct Purchasers’ evidence creates questions of fact that Defendants priced ■ in parallel. The quarterly analysis reveals outliers in announced percentage price increases, and though all Defendants did not issue PIAs in each price-increase quarter^ the same analysis of pricing parallelism reveals substantial similarity in slábstock and underlay PIAs with respect to the non-settling Defendants (particularly in the later portions of the Class Period, when Defendants’ communications with each other became more frequent). In a significant number of quarters, all announcing Defendants issued identical or near identical price increases. And, Defendants do not point to any principle of antitrust law establishing that this substantial similarity in business behavior, standing alone, entitles them to judgment as a matter of law. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (explaining that “price-fixing includes more than the mere establishment of uniform prices”); In re Currency Conversion Fee Antitrust Litig., 773 F.Supp.2d 351, 368 (S.D.N.Y.2011). Cf. Cason-Merenda v. Detroit Med. Ctr., 862 F.Supp.2d 603, 625-29 (E.D.Mich.2012).

Plus Factors

Price Discussions between Defendants.' Evidencé of communications between competitors can serve as circumstantial evidence of price-fixing. See, e.g., Apex Oil Co., 822 F.2d at 254; In re Plywood Antitrust Litig., 655 F.2d 627, 634 (5th Cir. Unit A 1981); Gainesville Util. Dep’t v. Fla. Power & Light Co., 573 F.2d 292, 301 (5th Cir.1978). But, “communications between competitors do not permit an inference of an agreement to fix prices unless those communications rise' to the level of an agreement, tacit or, otherwise.” In re Baby Food Antitrust Litig., 166 F.3d at 126 (internal quotation marks omitted). The range of inferences that can be drawn from evidence of competitor communications depends in part on whether drawing an inference of conspiracy would attach.antitrust liability to pro-competitive behavior. See In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 445 (9th Cir.1990) (hereafter “In re Petrol. Prods. Antitrust Litig.’’); Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1357 (9th Cir.1982). An exchange of price information “can- in certain circumstances increase economic efficiency and render markets more, rather than less, competitive.” United States v. U.S. Gypsum Co., 438 U.S. 422, 443 n. 16, 98 S.Ct. 2864, 57 L.Ed.2d 854. (1978). Whether, such evidence (alone, or together with other evidence) tends, to exclude the possibility of independent, lawful action depends on:- (1) who communicated with.whom; (2) when those conversations occurred and the type of information exchanged; (3) how the exchanges occurred; and (4) the legitimate reasons that may be offered for exchanging the information.

When' a plaintiff charges that defendants fixed prices for their products, discussions about pricing' or market conditions between low-level salesmen who lack pricing authority is not probative of conspiracy. See In re Baby Food Antitrust Litig., 166 F.3d at 125-26. Contrast that low-level chatter with the “far different situation where upper level executives [with pricing authority] have secret conversations-about price”; such discussions may support an inference of conspiracy. In re Flat Glass Antitrust Litig., 385 F.3d at 368-69. Similarly, an exchange of information regarding completed - sales is less probative of an agreement to fix prices than an exchange of information regarding current or future pricing. Com pare Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028, 1034 (8th Cir.2000) (en banc) (discussion of completed sales), with In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 681 F.Supp.2d 141, 176 (D.Conn.2009) (discussion of future pricing decisions). A direct and secret price discussion between competitors is more probative of a conspiracy than are indirect and public communications, ostensibly undertaken by the conspiring competitors to “signal” to one another. Williamson Oil Co., 346 F.3d at 1306 (signaling evidence not capable of supporting inference of coordinated action).

Finally, context can be key in determining the range of inferences that a jury may draw from competitor communications. For example, as sometimes is the case in the foam industry, the communicating firms may wear two hats — they may compete in the sale of certain products, while at the same time carrying on a supplier-customer relationship or a joint venture with respect to other products. A defendant may then attempt to explain the communications as nothing more than a supplier and customer discussing the price .of a product that one hopes to sell to the other, or partners communicating about their joint venture business. In re Dairy Farmers of Am., Inc., Cheese Antitrust Litig., 60 F.Supp.3d 914, 957-58 (N.D.Ill.2014). In other words, context matters.

Who is Talking Price with Whom. This Court has reviewed the more than seven thousand pages of e-mail and fax correspondence Direct Purchasers submitted in opposition to summary judgment. Though careful not to confuse quantity of evidence with quality of evidence, this extensive summary judgment record reveals a fairly dense web of communications between high-level competitor employees,' almost all of who had pricing authority for the foam product that was the subject of discussions.

The record reveals the price discussions themselves, as memorialized in e-mails and faxes between Defendants and their co-conspirators, and documents and deposition testimony recounting the nature of these discussions (see, e.g., Doc. 1343-50 at 42) (Don Coleman of Hickory Springs passing along to his senior staff details of price discussions with Bob Magee of Woodbridge). When such discussions occurred, they generally saw one Defendant pass to another (including through conduits) draft or published PIAs, or Defendants discuss impending or recent price increases without also exchanging PIAs. This Court notes a sampling of these eom-petitor-to-competitor discussions about pricing in an Appendix to this Memorandum Opinion and Order. These discussions tend to cluster around periods in which PIAs were issued.

Mostly, Defendants exchanged “published PIAs,” or PIAs that bore a date on or before the date of the competitor-to-competitor communication. However, in a significant number of instances Defendants exchanged “draft PIAs,” which can be identified in several ways. First, the Defendant employee would inform his counterpart that the PIA was “draft,” “proposed,” had not been sent to customers, or would be sent to customers on a particular date. Second, the Defendant employee would share a PIA that bore a date after the date of the e-mail or fax exchange (a jury could reasonably infer that a Defendant would not have sent a PIA dated January 3, 2015 to a customer on January 1, before sending the same PIA to a competitor Defendant on January 2). Third, the Defendant employee would share a PIA in a form that would not likely have first been sent to customers (e.g., a red-lined PIA).

These record exchanges occurred between Defendants’ most senior employees. To name just a few of each Defendant: Flexible Foam’s Chief Operating Officer (Rich Whitling) and its Vice Presidents of Sales and Marketing (Jeff Briney and Mike Crowell) joined in the conversations. So did Future Foam employees with pricing authority, including the company’s Director of Operations for Carpet Cushion (Marc Vitale) and a Regional Manager (Á1 Diamond). Hickory Springs’ President (Don Coleman), its Corporate Director of Administration (Don Simpson), its Eastern Division Vice President (Buster Mann, responsible for most pricing decisions in that region), and the lead Hickory Springs employee at the Olympic Products joint venture (Todd Councilman, Flat Block Business Director) also took part. Mohawk’s President, Jack Lens, was a repeated party to e-mails with competitor employees and scrap brokers. And almost all of Woodbridge’s brass — its President (Robert Magee), its Vice President (Frank Dona-to), and its lead slabstock employee (Peter Farah) — engaged in extensive communications with competitors.

When these senior employees spoke with one another, they exchanged what a jury could conclude is sensitive business information-draft PIAs, published PIAs (of which there are more instances of direct competitor exchanges not cited above), and performance on past price increases. On a number of occasions, a senior employee of one company would notify his counterpart at a competing firm that salesmen of the competing firm had been quoting “low” prices. More often than not, the senior competitor employee would state or imply that he would “check into” the prices being quoted by his salesmen. Similarly, competitors would speak with one another in ways inconsistent with vigorous competition — for example, Jack Lens asked scrap broker David Charak to send word to Leg-gett & Platt that it ought not go forward with a price increase because Mohawk had backed off the same increase (Doc. 1343-35 at 420). At the time, Leggett & Platt and Mohawk were competitors in the underlay market, and one might ask; why Jack Lens -did not prefer to rescind his price increase, allow Leggett & Platt to go forward with its own, and-win business for Mohawk from former Leggett & Platt customers. Other Defendants communicated directly regarding “market rationalization” (Woodbridge and Hickory Springs), “cooperation?’ and the goal of avoiding “fighting” in the context of concerns about price wars (Woodbridge and Vitafoam -USA), and “[pjossible customer conflicts and how to avoid them” (Flexible Foam and Wood-bridge).

This Court must consider the range' of inferences that can be drawn from competitor-to-competitor correspondence on an individual basis. Considered individually, some of the evidence Direct Purchasers rely on is just as consistent with lawful conduct as it is with conspiracy (sometimes, less so). For example, an exchange between Fred Rullo of Foamex and Randall Lake of Future Foam does not support an inference of conspiracy, because the exchange occurred in the context of a vendor' (Foamex) and customer (Future Foam) relationship (Future Foam could not produce rolls at a California plant, so it purchased rolls from Foamex) (Doc. 1343-14 at 140; Doc. 1354-5 at 3). Likewise, the April 2008 exchange between Jack Lens of Mohawk and Marc Vitale -of Future Foam, in which Lens promises to retaliate for Mohawk business lost to Future Foam, speaks of competition as much as Lens’ references to the “irresponsible” approach- of price-based competition suggests collusion. And some of the exchanges between Hickory Springs and Woodbridge employees through or including employees of the two firms’ joint venture, Olympic Products, lack strong probative value. Some of these exchanges relate to the joint venture’s pricing decisions. Other such exchanges are ambiguous as to whether Hickory Springs and Woodbridge employees exchanged infoi-mation on the pricing decisions of their separate and competing foam product lines, or instead discussed joint venture pricing. Joint venture pricing for nonautomotive slabstock foam was set by Hickory Springs employees, while joint venture pricing for automotive slabstock foam was set by Woodbridge employees. However, a jury could find that many more Defendant communications lack such innocuous context..

Admissions by Certain Defendants. This Court must not tightly compartmentalize the evidence , and ignore the context •created for these price discussions. Important here is the evidence of the Cooperating Defendants,, Defendants argue such evidence reveals only a geographically distinct conspiracy. Not so. In part, the Cooperating Defendants provide further evidence of direct competitor pricing discussions involving Defendants, some of which are not memorialized in the substantial documentary record (see, e.g., Doc. 1343-55 at 345-46 (Mike Crowell of Flexible'Foam speaking with Frank Donato of Vitafoam Canada); Doc. 1343-55 at 810-11 (Bruce Schneider, President of Future Foam, speaking-with Peter Farah, President of Vitafoam Canada); Doc. 1343-54 at 337 (David Gurley of Vitafoam Canada speaking with and Jeff Carter of Scott-del — and later Future Foam). The Cooperating Defendants also explain the role played by price discussions in the price-fixing-conspiracies in which they admittedly participated and the terms of those agreements.

The Vitafoam- Defendants are Antitrust, Criminal Penalty Enhancement and Reform Act applicants and conditional beneficiaries of the Department of Justice’s (“DOJ”) Corporate Leniency Program for admitted antitrust violators. The record contains deposition testimony of two different Vitafoam -Rule 80(b)(6) witnesses who are also attorneys: the Foam deponent, who testified in this litigation, and the Urethanes deponent, who testified in a suit alleging price-fixing by chemical suppliers in which some Defendants have taken on the role of direct action (non-class) plaintiffs. See In re Urethanes Antitrust Litig., MDL No. 1616 (D.Kan.).

The Foam deponent denied there was a “global, overarching agreement” (Doc. 1343-55 at 821). He could not. state -that every PIA issued during the -Class. Period was coordinated between Defendants (id. at 822). He declined examining counsels’ invitations to characterize Vitafoam’s interactions with other Defendant employees as having resulted in “agreements,” “I’m not going to comment on what is and what is not an agreement throughout this [deposition],” he explained, “because agreement takes two and I can’t tell' you what the other side [i.e., the other Defendant’s employee] was thinking” (id. at 821). See also id.' at 830 (“I agree that [whether discussions resulted in an “agreement”] is a legal conclusion because, you know, I’ve told you that I am an antitrust lawyer, and agreement is a loaded word.”).

So the Foam deponent would not unequivocally state that the all-Defendants, all-products, all-PIAs conspiracy functioned in the United States. More generally, however, Vitafoam did admit to conspiring with North American foam manufacturers, including with respect to the price of foam.that would be sold in the United States (id. at 854, 883). The Foam deponent explained the nature of this collusion: “[R]ather than-having one agreement, an agreement, there were a series, of events, discussions,- that took place in or around price increase periods, when a price increase was in the market” (id. at 821). (emphasis added). “[T]he whole idea was to communicate so you would not be surprised, which means that you would not go out at 10 percent and your competitors wouldn’t and you’d — and you’d lose business” (id. at 844). When “Vitaffoam] Canada” was surprised “they lost business” (id.) “[T]here are letters that went out at a rate, a specific rate and a specific time because of the communication with competitors” (id.). In certain instances, “Vitafoam spoke to competitors for the purpose of getting a price increase and having it stick” (id. at 891).

Vitafoam’s description of price discussions between competitors is mirrored in the evidence offered by the other Cooperating Defendants, various employees of the Canadian foam producers Domfoam and Valle Foam. In January 2012, a represén-tative of the two firms signed a “Statement of Admissions,” filed in an Ontario, Canada court alongside an indictment and sentencing document. The filings related to- Dom-foam and Valle Foam‘s admitted violations of the Canadian Competition Act, which netted-the firms a $12,5 million (CAD) criminal fine (Doc. 1343-2 at 17).

Valle Foam is a wholly owned subsidiary of Domfoam (id. at 20). The companies produce slabstock and underlay (id. at 21). With respect to each product segment, the companies admitted (id. at 22 (admission with respect to slabstock)); ’ id. at 24 (admission with respect to underlay):

For the purpose of forming and carrying out the alleged ■ conspiracy, Dom-foam/Valle, Carpenter [Canada], Vita[foam Canada] and Foamex [Canada] established a practice whereby the members of the alleged cartel would communicate about the amount and effective date, of price increases in the sale and supply of ... [foam] products in Canada. They would agree to use the same or similar effective dates and the same or similar price increase ranges, which had the overall, effect of unduly lessening competition in Canada. The information regarding the price- increase percentages and effective dates would be included in the price increase letters sent to customers and would constitute a price baseline, which would be used as a starting point for customer negotiations.

Coordination of slabstock PIAs would follow increases in raw chemical pricing, while coordination of underlay PIAs would follow increases in scrap ifoam pricing (id. at 22, 24), , The Statement of Admissions recites conduct that affected only Canada, and describes agreements or understandings only among Canadian firms.

But, viewed in the context of other record evidence and in the light most favorable to Direct Purchasers, no barrier running from Washington to Maine sealed off Canadian foam manufacturers from their American counterparts. ‘For "instance, Valle Foam and Domfoam sold flexible foam in the northeastern United States (Doc. 584-11 at 11). Sales in the United States amounted to rdughly 15 percent of the firm’s total sales during the Class Period,' the same period described in the Statement of Admissions (Doc. 584-15 at 35). Vitafoam Canada’s United States sales also averaged 15 percent of its gross revenues each year (Doc. 1343-55 at 833). All Cooperating Defendants would announce the same price increases for both Canadian and U.S. sales (excepting differences in pricing attributable to exchange rates) at approximately the same time (id. at 834; Doc. 584-15. at 37), and purchased chemicals. from the same set; of American chemical manufacturers as did Defendants. And, as noted above, Cooperating Defendant employees occasionally engaged in price discussions with Defendant employees like Ken Hlaudin of Flexible Foam or Frank Donato of Woodbridge (and later, Vitafoam Canada).

John Howard,- Domfoam’s General Manager in Quebec, played a role in setting the firm’s flexible foam pricing (Doc. 584-11 at 11). He admitted in a declaration that “since 1996, I am personally aware and testify that I and competitors in the foam industry communicated from time to time ,.. to coordinate the percentage amount and timing of price increases for foam,” a practice that helped the industry “push through a price increase to customers (id. at 14-15). Competitors would also exchange PIAs “to demonstrate to each other that the industry was increasing its prices by a certain amount and at a certain time” (id. at 18). Such coordination “was the accepted way of doing business in the polyurethane foam industry at that time” (id. at 15). He lists competitors’ employees with whom he coordinated PIAs, but all the named employees worked for Canadian foam producers (Howard’s listing does include Vitafoam Canada employees, who, in turn, had price discussions with Defendant employees as described in the Appendix). See also Doc. 584-9 at 5-16 (declaration of Dean Brayiannis, one-time Director of Sales and Marketing for Valle Foam, relating similar information about his communications with Canadian foam manufacturers regarding the timing and amount of flexible foam PIAs). Howard explained how conspiratorial discussions occurred, an explanation that mirrors the Foam deponent description (Doc. 1343-54 at 596):

Meetings weren’t held by all the foam-ers saying, ‘Okay. Now it is time. We’ve got to put letters out.’ But on an informal basis, ‘I’m raising prices, and its going to be on this date and this percent. And here’s evidence of what I’m going to do.’ And I’ll fax a letter over to Mike Calderone [at Foamex Canada] or I’ll receive one from somebody else. So that’s as sophisticated as we got in assuring that everyone was on the same page in terms of getting prices up when there was a chemical price increase.

Tony Vallecoccia, President and CEO of the two companies, claimed he would “bless” proposed flexible foam price increases that he knew his subordinates had proposed after coordinating with competitors, and that he and his competitors had “understandings” as to how Canadian flexible foam producers would respond to raw chemical price increases (Doc. 584-15 at 37, 39). But he also testified that there was “[n]o agreement with anybody” regarding his companies’ pricing decisions in the aftermath of raw chemicals or scrap foam price increases (Doc. 1328-53 at 3-4).

Finally, though not among the Cooperating Defendants, a jury could conclude that Woodbridge Fabricating’s admissions to criminal violations of the Sherman Act further confirm the nature and purpose of price discussions between Defendants and the terms of the agreement. In Summer 2014, Woodbridge Fabricating pled to an information that charged the firm with having “participated in conversations and meetings to discuss polyurethane flexible slab stock automotive foam prices”; “agreed, during those conversations and meetings, to coordinate the timing and amount of price increases for polyurethane flexible slab stock automotive foam in the United States and elsewhere”; “exchanged information during those conversations and meetings, for the purpose of monitoring and enforcing adherence to the agreement to coordinate the-timing and amount of price increases for polyurethane flexible slab stock automotive foam”; and that in fact it “coordinated the timing and amount of price increases for polyurethane flexible slabstock automotive foam customers” (Doc. 1343-2 at 30-31). See also id. at 36-37. The coordination related to PIAs with effective dates of July 2008 and August 2008 (Doc. 1328-76 at 21). Though not named in the plea agreement, Defendants concede that Foamex conspired with Woodbridge Fabricating on at least two PIAs {see, e.g., Doc. 1329-1 at 18 (Wood-bridge acknowledging that certain identical Foamex and Woodbridge PIAs were “encompassed in [Woodbridge Fabricating] pleas”); Doc. 1343-43 at 221).

Of course, all of this evidence has its limitations. Valle Foam and Domfoam deny having had price discussions with the employees of U.S. foam producers (a claim in tension with record evidence). Vita-foam employees never carried on price discussions with Mohawk employees. And each Defendant did not-communicate with the employees of every other Defendant or with each Cooperating Defendant (though the overlap in communications is substantial). . However, even accounting for these and other evidentiary shortcomings, it would be error for this Court to “suppose that if no single item of evidence presented by the plaintiff points unequivocally to conspiracy, the evidence as a whole cannot defeat summary judgment.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d at 655. All of this evidence provides context for understanding the conclusions a reasonable jury could draw from Defendants’ price discussions. These communications: occurred during price increase periods, in private, and sometimes (as described below) were eoúpled with affirmative attempts to keep the fact 'of the communications secret; joined Defendants’ most senior ' employees in conversations about’price; display a level of repetition and structure distinguishing the conversations from random chats between competitors; involve the exchange of future pricing information and price increases that had been published to customers but not yet implemented; match the communication patterns described by the Cooperating Defendants and Woodbridge Fabricating, each to some extent admitted price fixers; and expressly caused Defendants to modify pricing decisions. “The inference of concerted rather than interdependent action is therefore stronger.” In re Flat Glass Antitrust Litig., 385 F.3d at 369.

Actions against Self-Interest. In this cáse, Defendants’ communications serve as. a plus factor, which tends to exclude independent conduct. A related plus factor, actions against self-interest, requires “a showing’’that the defendants’ behavior would not be reasonable or explicable (i.e.[,] not in their legitimate economic self-interest) if they were not conspiring to fix prices or otherwise restrain trade— that is, that the defendants would not have acted as they did had they not been conspiring in restraint of trade.” City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 572 (11th Cir.1998). “Ordinarily, an affirmative answer to [this plus factor] will consistently tend to exclude the likelihood of independent conduct.” Re/Max Int’l, Inc., 173 F.3d at 1009. However, this Court “must exercise prudence in labeling a given action as being contrary to the .actor’s economic interests, lest [it] be too quick to, second-guess well-intentioned business judgments of all kinds.” So, “if a benign explanation for the action is equally or more plausible than a collusive explanation, the action cannot constitute a plus factor.” Williamson Oil Co., 346 F.3d at 1310. See also In re Citric Acid Litig., 191 F.3d 1090, 1100 (9th Cir.1999).

Direct Purchasers’ focus with this plus factor is not paralléí pricing, market behavior which may simply reflect interdependence. See, e.g., In re Flat Glass Antitrust Litig., 385 F.3d at 360-61 Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1244 (3d Cir.1993). Instead, Direct Purchasers emphasize Defendants’ mutual, usually direct, exchange of sensitive business information. Absent an express or tacit agreement to coordinate pricing, Direct Purchasers argue it was “risky [for Defendants to privately exchange such information] because their prices could be undercut but-for an understanding to use the information to coordinate rather than to compete” (Doc. 1343 at 73). ' Defendants’ “benign” explanations either lack support in the record or depend on disputed questions of fact.

First, Defendants argue that direct and private communications between competitors made market prices more transparent. Citing fundamental economic principles, Defendants note “[a]ll market participants benefit from full information in the market.” Moré, such information disseminated broadly “enhances competition and makes the market more competitive” (Doc. 1467 at 16). Direct Purchasers do not quarrel with this rule of economics; they instead argue that (at minimum) the evidence'creates fact questions as to whether Defendants’ competitor communications were undertaken with either the purpose or effect of improving price transparency for market participants. Direct Purchasers say the competitor communications were aimed at improving1 Defendants’ knowledge of each other’s pricing strategies prior to when price increases were announced, and then again before the price increases were implemented, so that Defendants could push chemical price increases through to consumers and presérve (or increase) margins in a period of. rising costs, industry overcapacity, massive economic recession, and substantial declines in demand for flexible foam. Evidence supports this competing view. See Gray v. Shell Oil Co,, 469 F.2d 742, 747 (9th Cir.1972); Cf. United States v. Coop. Theatres of Ohio, Inc., 845 F.2d 1367, 1373 (6th Cir.1988).

Second, certain Defendants argue that their price discussions were not aimed at the “downstream” purpose of cooperative-' ly increasing or maintaining margins. Instead, Defendants exchanged price information to gain leverage “upstream” in negotiations with chemical firms.- This supposed justification made its first appearance at oral argument. And, aside from a single reference to a discussion between Mike Crowell of Flexible Foam and Frank Donato of Vitafoam Canada (a discussion referenced in the U.S. search warrant and affidavit) (Doc. 1467 at -29), the “upstream” justification lacks eviden-tiary support. Moreover, one party to this “upstream’'’ conversation, Donato, has refused to testify in' this matter, invoking his Fifth Amendment privilege against self-incrimination. He also figures prominently in Woodbridge and Vitafoam Canada’s price discussions with competitors (see, e.g., Doc. 1343-14 at 114) (Donato to Peter Farah, both then of Woodbridge: “Don’t know what' we ’ should do. Dan wants me to call” Don Phillips of Foa-mex. ‘Will try first thing in the morning. I think we should go strong and tr[y] to keep Vita and [Fodmex] on board. Forget share for now — fix pricing”).

Third, Defendants argue that the information they shared was all “public information” because it had already been shared with customers before Defendants shared the same information with one another. However, many of the specific communications noted in the Appendix indicate that oral announcements of planned price increases to customers did not precede Defendants’ pre-publication sharing of price increase information with one another (and, at the least, this argument raises disputed questions of fact). At most, this approach of advance oral notice creates questions of fact as to whether, (for example) a Mohawk employee had called customers to provide a “heads-up” about an impending April 2006 underlay price increase before Jack Lens, Mohawk’s President, e-mailed a copy of a, draft PIA to scrap broker David Charak, who then forwarded the draft PIA to senior underlay employees at Leggett & Platt, Future Foam, Flexible Foam, and Carpenter (see Doe. 1343-15 at 34; Doc. 1343-36 at 225, 234-41). Similar fact questions abound in the record.

Relatedly, Defendants contend they obtained, competitor pricing information from customers. This may be true in some cases (see, e.g., Doc. 1321-18). In other cases — for . example, competitor PIAs found in a Defendant’s files with no paper trail showing receipt of the letter from another Defendant or a customer — receipt of a competitor PIA from a customer is at least as possible as receipt from a Defendant. See In re Citric Acid Litig., 191 F.3d at 1103. But the record contains dozens of direct communications between Defendants or through conduits like the scrap brokers, in which pricing information was