Full opinion text
MEMORANDUM RE: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT Judge Michael M. Baylson, United States District Ct Judge TABLE OF CONTENTS I.Introduction... 180 II. Procedural History... 181 III. Plaintiffs’ Allegations in Amended Complaints... 182 IV. Discovery... 183 V. Settling Defendants... 184 VI. Motions for Summary Judgment ...184 A. American... 185 B. National.. .186 C. Lafarge... 187 D. PABC0....187 E. CertainTeed... 187 VII. Summary Judgment Standard ...188 VIII. Legal Analysis in Oligopoly Cases... 189 A. Matsushita Elec. Indust. .Co., Ltd. v. Zenith Radio Corp.... 191 B. Petruzzi’s IGA Supermarkets Inc. v. Darling-Delaware Co. Inc.... 191 C. In re Baby Food Antitrust Li-tig.... 192 D. In re Flat Glass Antitrust Li-tig.... 193 E. In re Chocolate Confectionary Antitrust Litig.... 194 IX. Undisputed Background Facts... 194 A. Wallboard Industry Background. . .194 1. Market Share... 195 2. Demand... 195 3. Capacity.. .195 4. Job Quotes... 196 B. Trade Association Membership & Meetings... 196 X. Bourjaily and Application of the Co-Conspirator Hearsay Exception... 197 A. Brief History of the Co-Conspirator Exception... 197 B. Impact of Federal Rules of Evidence ...198 C. Bourjaily Ends the Rule Against Bootstrapping.. .199 D. Admissibility of Hearsay Statements in Antitrust Suits Under the Co-Conspirator Exception Post -Bourjaily.. .200 1. Big Apple BMW, Inv. v. BMW ofN. Am., Inc. ... 201 2. In re Flat Glass Antitrust Li-tig... .202 E. Role of the Co-Conspirator Exception in this Case... 203 XI. Chronology of Material Facts... 203 A. February — October 2011.. .204 B. 2012 Activity.. .217 XII. Evidentiary Findings Pursuant to Fed. R. Evid. 104.. .228 A. Parties’ Statements.. .228 B. Business Records... 228 C. Co-Conspirator Statements & Bour-jaily. . .228 XIII. Plaintiffs’ Theory of the Drywall Conspiracy.. .231 A. Timing and Similarity of Defendants’ Announcements Related to Elimination of Job Quotes and the 2012 and 2013 Price Increases.. .231 1. Pricing Practices Prior to Fall 2011...231 2. Price Increase and Elimination of Job Quotes Effective January 2012...232 a. American Announcement.. .232 b. USG Announcement.. .233 c. National Announcement.. .233 d. CertainTeed Announcement. . .233 e. Lafarge Announcement.. .234 f. TIN Announcement.. .234 g. PABCO Announcement.. .234 h. Implementation & Results.. .234 3.Events Leading up to the 2013 Price Increase...235 a. Pricing Guidance Following the Drake Group Meeting.. .236 b. Fall 2012 Pricing Announcements ...236 B. Intercorporate Communications. . .237 1. Keith Metcalfs April and Early September Communications.. .238 2. September L&W Phone Calls... 239 3. PABCO & American Phone Call.. .240 4. National’s Reference to “[V]erbal [A]greements for a [LJarge [P]rice [I]n-crease in 2013”...240 C. Communications with Research Analysts. . .241 1. Analyst Background Information. . .242 2. Legal Viability of Plaintiffs’ Conduit Theory.. .242 a. Authority Supporting Plaintiffs’ Conduit Theory.. .242 b. Authority Undermining Plaintiffs’ Conduit Theory.. .243 3. Evidence Allowing Inferences of Defendants’ Using Analysts As Conduits ...244 a. National Signaling Through Thompson and Longbow?.. .244 b. Lafarge Signaling Through Longbow?. . .246 D. Defendants’ Non-Price Conduct. . .248 1. Limiting Supply.. .248 a. Limiting Supply Prior to 2012 Increase ...248 b. Limiting Supply Prior to 2013 Increase ...249 2.Declining to Compete for Customers. . .250 XIV. Analysis — Consideration of Plus Factors.. .251 A. Motive .. .252 B. Actions Against Self-Interest.. .252 C. Traditional Conspiracy Evidence. . .254 1. American.. .256 2. National.. .256 3. PABCO... 256 4. Lafarge... 257 5. CertainTeed.. .257 D. Conclusion.. .259 I. Introduction In fall 2011, several U.S. gypsum wallboard manufacturers announced substantial changes to their pricing, ending a longstanding pricing practice and scheduling a very large price increase to commence in January 2012 and to be effective for the entire year. Then, in fall 2012, these manufacturers again announced similar price increase to take effect in January 2013. In this multidistrict litigation (“MDL”), Plaintiffs allege that the Defendants’ 2012 and 2013 price increases and other changes in pricing practices were the result of an agreement, in violation of federal and state antitrust laws. Currently before the Court are four motions for summary judgment: Defendants’ Joint Motion for Summary Judgment (ECF 206), Defendant CertainTeed’s Motion for Summary Judgment (ECF 207-08), Defendant Lafarge’s Motion for Summary Judgment (ECF 204), and Defendant PABCO’s Motion for Summary Judgment (ECF 205). For the reasons that follow, the court GRANTS the Motions for Summary Judgment as to CertainTeed and DENIES the Motions for Summary Judgment as to American, National, Lafarge, and PABCO. At the outset of these consolidated cases, the Court convened a pretrial conference on September 18, 2013 to discuss pretrial issues including discovery and initial pleadings. Defendants’ counsel indicated that it was not their intention to file Rule 12 motions, although their clients strenuously disputed the truth of the allegations against them. Eventually, a consensus was reached among counsel and the Court that discovery would be initially limited to whether there was an agreement between any Defendants in violation of Sherman Act § 1. (ECF 64). Thus, the Court postponed discovery on issues such as class action, damages, antitrust injury, etc. By and large, discovery proceeded without any need for intervention. There was substantial production of documents by Defendants, and a deposition program was initiated and completed. Following the close of discovery, Defendants, as planned, filed motions for summary judgment. As detailed below, each Defendant has supported its motion for summary judgment by declarations and deposition testimony by their officers and managers involved with the pricing of their drywall products. These testimonial materials assert that there was no agreement between their employer and ány other Defendant. Against this forceful show of denial, Plaintiffs have come forward with detailed facts that Plaintiffs assert show a genuine dispute that would allow a jury to find that there was an agreement by all of Defendants concerning prices. Included within the factual material are excerpts from documents and testimony by the two third-party research organizations that had been subpoenaed and provided documents and deposition testimony, Longbow Research (“Longbow”) and Thompson Research Group (“Thompson”). As required by the Court’s practice order, Defendants have supported their motions for summary judgment with statements of undisputed facts. Plaintiffs have come forward with responses to many of these assertions, claiming there are disputed facts, and have added additional facts to which Defendants have responded. As of result of this melange of factual materials, the Court believes that the “core facts” of the case, as contained in documents produced by all of Defendants, or third parties, along with deposition testimony by their officers and managers, are largely undisputed. The task of the court is to determine whether inferences favorable to Plaintiffs can be drawn from these factual materials. In proceeding towards the appropriate analysis, the Court believes that there are three issues that must first be analyzed in detail, as follows: First, the Court will review the history of the drywall industry in the United States, which satisfies the accepted definition of an oligopoly, and the drywall manufacturers’ efforts to raise prices following the well-documented housing slump in 2008-2010. Second, the Court will provide the legal analysis of the decision by the Supreme Court in the Matsushita case and a number of Third Circuit opinions analyzing antitrust claims involving oligopoly industries such as drywall. The Court must recognize the unique economic discipline that applies to price fixing allegations against companies in an oligopoly setting, and the required hesitation, if not disinclination, to find any type of conspiracy from merely ambiguous evidence, but also, a duty to consider what courts have called “plus factors.” Third, the Court will review the evidence rules concerning alleged co-conspirator statements. In making this review and analysis, the Court recognizes that this is not an occasion for fact finding. Defendants’ motions assert their innocence; Plaintiffs assert their liability with equal vigor. The Court’s role is not take sides, find facts, or determine liability or innocence, but only to determine what, if any, inferences can be drawn consistent with the governing case law on antitrust price fixing and the rules of evidence on allegedly co-conspirator statements. After laying the groundwork on the industry background and legal principles, the Court will embark upon a chronological review of the factual materials, highlighting those facts that Plaintiffs have asserted are the strongest towards showing an agreement. The Court will then explain its decision as to admissibility of hearsay evidence, and separately, the ability of the jury to draw reasonable inferences of agreement based on the record in this case. II. Procedural History In April 2013, the Judicial Panel on Mul-tidistrict Litigation ordered consolidation in this District before the undersigned of various drywall antitrust cases from this and other Districts for pretrial proceedings. The original Defendants were U.S. domestic drywall manufacturers, namely CertainTeed Gypsum (“CertainTeed”), United States Gypsum Company (“USG”) and its parent USG Corporation (“USG Carp.”), New NGC, Inc. (“National”), La-Farge North America Inc. (“LaFarge”), American Gypsum Company LLC (“American”) and its parent company Eagle Materials Inc. (“Eagle”), TIN, Inc. (“TIN”), and PABCO Building Products, LLC (“PAB-CO”). By May 2013, multiple putative class actions had been consolidated in the MDL. These actions had been filed on behalf of proposed classes of Plaintiffs who purchased drywall either directly or indirectly from Defendants. The direct purchaser actions alleged violations of § 1 of the Sherman Act, 15 U.S.C. § 1; the indirect purchaser actions sought injunctive relief through § 16 of the Clayton Act, 15 U.S.C. § 26, based on allegations of violations of § 1 of the Sherman Act, 15 U.S.C. § 1, and sought damages based on alleged violations various of state laws. The Court has jurisdiction over the federal law claims by virtue of 28 USC §§ 1331, 1337. The Court has jurisdiction over the Indirect Purchasers’ state-law claims through 28 U.S.C. § 1367 and 28 U.S.C. § 1332 (“CAFA”). By Order dated May 7, 2013 (ECF 11), this Court consolidated, for pretrial purposes, (1) all pending indirect purchaser actions and any indirect purchaser actions filed thereafter (“Indirect Purchaser Action”) and (2) all pending direct purchaser actions and any direct purchaser actions' filed thereafter (“Direct Purchaser Action”). (ECF 11) Additionally, the Court ordered the Direct and Indirect Purchaser Actions to coordinate for pretrial purposes. These Direct and Indirect Purchaser Actions are the subjects of the instant Motions for Summary Judgement. III. Plaintiffs’ Allegations in the Amended Complaints On June 24-25, 2013, the consolidated putative classes of Indirect Purchaser Plaintiffs and Direct Purchaser Plaintiffs both filed Amended Consolidated Class Action Complaints (ECF 20 (Direct), 21 (Indirect)). Both complaints allege that beginning in 2011, Defendants in the domestic drywall industry violated the antitrust laws by conspiring to raise prices, restrict supply, and eliminate the long-standing pricing practice of providing job quotes. Drywall, also known as gypsum wallboard, sheetrock, and wallboard, is the basic material used to form walls and ceilings in over 90% of all new residential and commercial structures. The domestic drywall industry is oligopolistic. Defendants account for more than 89% of U.S. drywall sales, and the four largest Defendants (USG, National, CertainTeed, and American) account for approximately 70% of those sales. According to the complaints, prior to fall 2011, Defendants typically announced multiple price changes each year because of the commodity nature of wallboard and fluctuations in costs. These increases were typically announced through letters distributed to customers 30 to 45 days before the effective date of the increase. Additionally, since the 1980s, manufacturers had competed for price in part by providing “job quotes.” Through job quotes, manufacturers provided a quoted price to a customer for a specific “job” and that price would remain the valid price throughout the duration of the job, regardless of market fluctuation. Like most construction industries, the drywall industry was significantly injured by economic events in the early 2000s, including the 2008-2010 Recession. According to Plaintiffs, prices had generally been flat or declining from 2008 to 2011. Defendants had attempted to raise prices multiple times in 2010 and 2011, but Plaintiffs allege Defendants were unable to obtain a meaningful increase because of the economic climate and because of competition with each other. Then, over the span of a few weeks in late September and early October 2011, six Defendant-manufacturers distributed letters announcing that they would implement a price increase on January 1, 2012 and that the new price would remain in effect for the entire year. In those letters, five of those Defendants either announced or expressed anticipation that the 2012 price would be as high as a 35% increase over current prices, the steepest increase announced in over ten years. Six Defendants also used the letters to announce the immediate elimination of job quotes. The only Defendant-manufacturer who did not announce the elimination of job quotes in its letter, USG, still unofficially eliminated or significantly curtailed new job quotes in fall 2011. According to Plaintiffs, unlike the previous price-increases attempted earlier in 2011 and prior years, Defendants’ January 2012 price increase was effective for the entire year, even though there had been no meaningful increase in drywall demand or manufacturers’ costs. Plaintiffs allege these increases succeeded because Defendants had agreed to increase the prices, eliminate job quotes, and limit the supply of wallboard, in violation of antitrust laws. Following the success of the 2012 price increase, Defendants again announced substantial price increase in fall 2012 to take effect in January 2013 and to last the duration of 2013. As with the 2012 increase, Plaintiffs allege that Defendants agreed to implement the January 2013 price increase and restrict supply in the months preceding the increase, and that Defendants succeeded in achieving these goals, thus increasing the cost of wallboard over what would have been charged in a truly competitive market. IY. Discovery In September 2013, the Court ordered a phased discovery process, limiting Phase I to a single issue: “Whether the record contains sufficient facts and/or opinions, admissible at trial, to allow a jury to find a violation of Section 1 of the Sherman Act, including whether there was an agreement between or among defendants.” (ECF 64). After considerable discovery, a dispute arose when Defendants moved to compel Plaintiffs to answer so-called “contention interrogatories,” which asked for detailed facts. (ECF 99). After oral argument on April 22, 2014, the Court issued a Memorandum, noting that, based on the briefs that had been filed, the Plaintiffs had gathered a great deal of detailed factual information from the documents produced by Defendants. In re Domestic Drywall Antitrust Litig., 300 F.R.D. 228 (E.D.Pa.2014). The Court therefore concluded that the most expeditious way to encapsulate the discovery that had so far taken place was to require Plaintiffs to file a “contention statement,” indicating the detailed facts that supported their allegations. Id. In this Memorandum, the Court noted the success that Plaintiffs had realized from sophisticated deployment of electronic discovery, and therefore, the Court con-eluded that it would not be burdensome for Plaintiffs to “parlay” the facts learned in discovery into contention statements as an alternative to answers to interrogatories to which Defendants would then have to respond. Id. The only other major discovery dispute concerned a third-party subpoena to a research group, Thompson, which is in the business of collecting information, analyzing trends, and making predictions on the economics of various businesses, including drywall manufacturers. This dispute resulted in a lengthy opinion setting forth the facts that Thompson would have to reveal, but provided protection for proprietary or truly confidential information. In re Domestic Drywall Antitrust Litigation, 300 F.R.D. 234 (E.D.Pa.2014). V. Settling Defendants In February 2015, Plaintiffs, both direct and indirect purchasers, reached settlements with a number of original Defendants: TIN, Inc. and the USG entities (including USG Corp., USG, and L&W). The Court granted preliminary approval of the settlements in March 2015 (ECF 183-186), and granted final approval and issued a final judgment order on August 20, 2015. (ECF 276-279). Although the settling Defendants are not parties to the instant Summary Judgment Motions, this Memorandum will discuss some of the facts related to those original Defendants to the extent they are relevant to the pending motions by the remaining Defendants. VI. Motions for Summary Judgment On May 12, 2015, the non-settling Defendants moved for summary judgment, arguing that Plaintiffs had failed to uncover enough evidence to create a fact issue about whether Defendants entered a price-fixing conspiracy. Together, all Defendants filed a joint motion for summary judgment (ECF 206). Additionally, three Defendants filed supplemental motions for summary judgment to make Defendant-specific arguments: Lafarge (ECF 204), CertainTeed (ECF 207), and PABCO (ECF 205). In accordance with Rule 56, each Defendant has submitted factual materials, including affidavits, declarations, and/or deposition testimony, “asserting that a fact” alleged by Plaintiffs (namely, that Defendants agreed to fix prices and make other price-related changes to the industry) cannot be proven, and “showfing]” the absence of a genuine dispute. Fed. R. Civ. P. 56(c). In support of the joint motion, Defendants argue that the undisputed evidence reveals that Defendants were merely “following the leader,” which they argue is an expected and legal business practice in an oligopoly. Defendants paint the drywall industry in 2011 as suffering from a dire economic outlook for the manufacturers, who were still feeling the impact of the downturn in the construction industry from 2006-2008 and the Great Recession that begin in 2008. Defendants claim that by September 2011, they had tried various methods of raising prices and reducing costs, but were nonetheless experiencing substantial losses each year between 2008 and 2011. Desperate to find solutions to improve its bottom line, on September 20, 2011, American became the first manufacturer to issue a letter to customers that (1) eliminated job quotes effective immediately and (2) announced a 35% price increase to take effect on January 1, 2012 and last throughout all of 2012. Defendants submit declarations and depositions arguing that American’s announcement took the industry by surprise, but seeing an opportunity to improve profitability, Defendants followed American’s lead based on their independent conclusions that the changes announced by American were in the best interest of each individual manufacturer. Defendants argue that the same was true of the price increase that went into effect for 2013. Each Defendant has satisfied its burden under Rule 56(c)(1) by filing declarations, and/or depositions of high-ranking corporate officers in which those officers deny the existence of, and their participation in, a price-fixing conspiracy. In reviewing Defendants’ evidence, the Court focuses on the declarations of those individuals who are the most relevant to this litigation, where possible. When declarations are not available, the Court relies on deposition testimony. A. American American submitted declarations from David Powers (President, American) and Keith Metcalf (Sr. VP of Sales, Marketing, and Distribution, American), both of which support American’s contention that it was not involved with any agreement to raise prices, eliminate job quotes, or restrict supply in either 2012 or 2013. Exs. 48 (Powers decl.), 50 (Metcalf deck). According to these declarations, Messrs. Powers and Metcalf worked together to develop American’s pricing strategy for 2012 and 2013, though Mr. Powers had final say over any pricing decisions. Ex. 48 ¶ 7; Ex. 50 ¶¶ 17-20, 33-35. Sometime in summer 2011, the two men worked to develop a new pricing strategy in light of American’s financial woes, ultimately deciding to increase prices by 35% because “the larger the increase that American Gypsum announced, the better chance American Gypsum had of successfully implementing at least a portion of the increase.” Ex. 48 ¶ 31; accord Ex. 50 ¶ 19. In an attempt to achieve this price improvement, Mr. Powers came up with the idea to eliminate job quotes. Ex. 48 ¶¶ 30-31; Ex. 50 ¶ 21. Messrs. Powers and Met-calf took their plan to Steven Rowley, President and CEO of Eagle Materials (American’s parent company), and Mr. Rowley made the suggestion to create a calendar-year price given the large size of the price increase. Ex. 48 ¶ 31; Ex. 50 ¶ 22. American announced the increase “in late September because builders like to know how much their costs are increasing at that time since they negotiate the price for their next year’s projects in October and November” and to provide “additional notice as a courtesy because of the change in job quote policy and the amount of the increase.” Ex. 50 ¶ 25. In making the announcement, Messrs. Powers and Metcalf recognized that they were taking a risk and could lose market share, but “American Gypsum was willing to lose some market share if it could realize higher prices, and hence a profit, on the sales that remained.” Ex. 48 ¶ 32; Ex. 50 ¶ 20. And, if American “received negative feedback from [their] customers or if sales declined too much, then the company always had the option of rescinding, modifying, or selectively implementing the in-crease_” Ex. 48 ¶32; accord Ex. 50 ¶ 20. Messrs. Powers and Metcalf state that they did not discuss increase with any employee of any other wallboard manufacturer and that they independently reached the decision to increase prices in 2012 and 2018 and to eliminate job quotes. Ex. 48 ¶¶ 34-86; Ex. 50 ¶ 53. The declarations also assert that American competed with the other Defendants throughout the class period, “reducing] prices for individual customers on hundreds of occasions in order to meet prices offered by its competitors in 2012.” Ex. SO ¶ 30. B. National National submitted the declaration of Craig Weisbrueh (Sr. VP of Sales and Marketing, National), which supports National’s contention that it was not involved in any agreement in violation of the Sherman Act. Ex. 210 (Weisbrueh decl.). According to Mr. Weisbruch’s declaration, he “did not enter into any agreement with any other drywall manufacturer regarding drywall prices, supply, or job quotes.” Ex. 210 ¶ 38. He learned of American’s price announcement on September 20, 2011 because two customers emailed him copies of the American letter. Ex. 210 ¶ 10. Prior to receiving the letters, Mr. Weisbrueh did not know of “any plans by American Gypsum to raise prices or end job quotes,” though, he “had heard secondhand reports from customers that USG had discussed with customers possibly ending USG’s practice of issuing job quotes.” Ex. 210 ¶ 11. Upon receiving the American letter, Mr. Weisbrueh placed a moratorium on job quoting and called an emergency meeting of the sales leadership team to decide how to proceed. Ex. 210 ¶ 13. The team concluded that it was in the best interest of National to follow American’s lead, though it decided to hold off on announcing the “hard dollar” amount of the increase until December 2011 so it could “collect competitive intelligence from [its] customers and form a more complete competitive picture.” Ex. 210 ¶¶ 14-19. In 2013, Mr. Weisbrueh stated that National decided to raise prices by 30% because of its independent business judgment, which was based on information about what other manufacturers were doing, business conditions, and financial need. Ex. 210 ¶¶ 23-31. The record contains substantial evidence documenting Mr. Weisbruch’s communications with research analysts. In his declaration, Mr. Weisbrueh clarified that he never intended for anything [he] said to any industry analyst to be directly or indirectly conveyed to another drywall manufacturer. No analysts ever suggested to [him] that [the analyst] would convey anything [Mr. Weisbruch] said to another manufacturer. Nor did [he] ever ask an analyst to pass information [he] provided to any other manufacturer. Ex. 210 ¶ 36. C. Lafarge Lafarge did not submit any declarations or affidavits, but every Lafarge employee that Plaintiffs deposed denied under oath that there was ever any discussion or agreement among Defendants regarding pricing or job quotes. Ex. 1102 (DeMay dep.) at 371:4-375:6; Ex. 59 (Preston dep.) at 197:15-202:6; Ex. 80 (Pearson dep.) at 291:17-22, 294:3-4; 297:11; Ex. 81 (Conlin dep.) at 181:9-14; Ex. 82 (Wilson dep.) at 145:25-150:3. As with National, there is some evidence in the record of communications with Stephen DeMay (VP Sales, Lafarge) and a third-party analyst at Longbow. In their supplemental briefing, Lafarge cites the depositions of the research analysts at Longbow to support that Mr. DeMay never asked an analyst to pass information to another drywall manufacturer and the analysts never agreéd to pass such information along. Lafarge Suppl. Br. at 20. D. PABCO PABCO’s declarations of Ryan Lucchetti (President, PABCO) and Mark Burkham-mer (Dir. Sales — North, PABCO) both support PABCO’s assertion that it did not participate in any agreement in violation of the Sherman Act. Exs. 93, 99. According to his .declaration, Mr. Luc-chetti first learned of American’s September 2011 announcement from a customer, at which time Mr. Lucchetti forwarded to letter to Mark Burkhammer, Phil Kohl (VP Sales and Marketing, PABCO), Todd Thomas (Dir. Sales — South, PABCO), Foster Duval (Sales Manager, PABCO), and Emil Kopilovich (VP Manufacturing, PAB-CO). Ex. 93 ¶¶ 23-24. Mr. Duval responded to the email, informing Mr. Lucchetti, for the first time, that Mr. Duval had spoken with Mr. Powers (President, American) the day before. Ex. 93 ¶¶ 24-25. Mr. Lucchetti explained that PABCO decided to follow the lead of its competitors in 2011 regarding the price increase and elimination of job quotes after it had received the increase letters from American, USG, National, CertainTeed, and Lafarge. Ex. 93 ¶29. Similarly, before announcing a price increase for 2013, PABCO waited to see what the other manufacturers would do, deciding to raise prices only after receiving announcements from American, National, CertainTeed, and Lafarge. Ex. 93 ¶ 42. Mr. Lucchetti claims that he “did not use or rely on information obtained from [any gypsum industry research analysts]” when making his pricing decisions. Ex. 93 ¶ 59. E.CertainTeed Of all Defendants, CertainTeed submitted by far the most declarations, offering approximately 90 declarations from Cer-tainTeed leadership, employees, and customers. CertainTeed Exs. 1-50, 54-67, 69-94, 102-105. Almost all declarations deny knowledge of any agreement between Cer-tainTeed and another manufacturer. Id. Every declaration made by an employee of CertainTeed and its parent and sister companies also categorically denies entering into any agreement with any drywall competitor. CertainTeed Exs. 1-91, 93-94, 102-104. According to the declaration of Steve Hawkins (VP Sales, CertainTeed), Certain-Teed first learned of American’s plans to increase prices and eliminate job quotes on September 20, 2011, when a customer emailed one of CertainTeed’s Regional Sales Managers a copy of the American letter. CertainTeed Ex. 2 ¶ 50. The letter was forwarded to Mr. Hawkins, who sent it to John Donaldson (President, Certain-Teed). Between September 20 and October 3, CertainTeed “went through a deliberative process.. .to come to a decision on the best approach for CertainTeed. And the deliberative process over [CertainTeed’s] specific price levels did not conclude until late December.” CertainTeed Ex. 1 ¶¶ 45-56. Similarly, Mr. Hawkins recalls being surprised by American’s March 2012 announcement that it would likely raise its 2013 prices by 25-30%. CertainTeed Ex. 2 ¶ 86. CertainTeed did not immediately start providing guidance because “it was too difficult to try to forecast industry conditions that far in advance” and because CertainTeed was unsure about “how much of the 2012 price increase would be realized.” Id. ¶ 87. In August 2012, senior leadership at CertainTeed met and concluded that they “would like to announce a 30% price increase for 2013.” Id. ¶ 88. On September 13, 2012, after receiving news that National had decided to raise its prices by 30% for 2013, CertainTeed announced the same increase for 2013. Id. ¶¶ 91-92. VII. Summary Judgment Standard To avoid summary judgment, Plaintiffs must show that a genuine issue of material fact exists as to whether Defendants entered into an anti-competitive agreement. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). “[A] non-movant’s burden in defending against summary judgment in an antitrust case is no different than in any other case.” Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.1993) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992)). Thus, as when reviewing any summary judgment motion, we must “view the facts and any reasonable inferences drawn therefrom in the light most favorable to the party opposing summary judgment,” considering the evidence as a whole and refraining from weighing evidence or making credibility determinations. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004) (quoting Intervest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 160 (3d Cir.2003)); accord Petruzzi’s, 998 F.2d at 1230. To avoid summary judgment, Plaintiffs must submit evidence that when considered holistically, ‘“tends to exclude the possibility’ that the alleged conspirators acted independently” or interdependently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)); accord In re Flat Glass, 385 F.3d at 357. “[A] nonmovant plaintiff in a section 1 case does not have to submit direct evidence, i.e., the so-called smoking gun, but can rely solely on circumstantial evidence and the reasonable inferences drawn from such evidence.” Petruzzi’s, 998 F.2d at 1230; accord Matsushita, 475 U.S. at 588, 106 S.Ct. 1348. “The extent of what constitutes a reasonable inference in the context of an antitrust case, however, is somewhat different from cases in other branches of the law in that ‘antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.’ ” In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d Cir.1999) (quoting Matsushita, 475 U.S. at 588, 106 S.Ct. 1348). “[I]n drawing favorable inferences from underlying facts, a court must remember that often a fíne line separates unlawful concerted action from legitimate business practices.” Petruzzi’s, 998 F.2d at 1230. “[E]vidence which is equally consistent with legal and illegal conduct, standing alone, cannot support an inference of antitrust conspiracy.” Id. at 1231 (emphasis added). That said, Defendants are “not entitled to summary judgment simply because they demonstrated a plausible rationale for their behavior. Rather, the focus must remain on the evidence proffered by the plaintiff and whether that evidence ‘tends to exclude the possibility that [the defendants] were acting independently.’ ” Id. at 1232 (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. 1464). After review of the relevant case law, the following sections will detail the undisputed facts regarding the industry prior to 2011 as well as Plaintiffs’ evidence that the manufacturers entered price-related agreements during 2011 and 2012, and related arguments. Subsequently, the Court will apply the asserted factual disputes to the legal principles, addressing the evidence against each Defendant in turn. VIII. Legal Analysis in Oligopoly Cases The antitrust laws prohibit only overt concerted action. In re Flat Glass Antitrust Litig., 385 F.3d 350, 359-60 (3d Cir.2004). Firms are not prohibited from making decisions that are based on the actions of other firms. Id. It is undisputed that the market for drywall is oligopolistic. Oligopolistic markets tend to be interdependent. Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of Antitrust Law § 14.03 (Wolters Kluwer Law & Business, 4th ed. 2015 supp.). Interdependence is the market state in which market participants’ decisions depend on what the participants’ believe their competitors will do or their observations of competitors’ behavior. Ar-eeda & Hovenkamp, supra, § 14.03. Oli-gopolistic markets tend to be interdependent because competitors are more likely to consider each other’s actions in markets dominated by few sellers. Thus, though each firm in an oligopoly “may independently decide upon its course of action, any rational decision must take into account the anticipated reaction” of the other firms. In re Baby Food Antitrust Litig., 166 F.3d 112, 122 (3d Cir.1999). Because the firms are aware of what their competitors are doing, “oligopolists’ decisions may be interdependent,” meaning the decisions were made upon considering competitors’ actions or reactions. Id. (quoting, Areeda, Antitrust Law § 1429 (1986)). But such decisions are nonetheless considered to have been “arrived at independently.” Id. (quoting, Areeda, Antitrust Law § 1429 (1986)). Interdependence may sometimes result in conscious parallelism, in which the firms engage in the same behavior because they consider the actions of their competitors, but not because they have overtly agreed to engage in that behavior. In re Flat Glass, 385 F.3d at 359. Conscious parallelism may enable “firms in a concentrated market [to] maintain their prices at supracompetitive levels, or even raise them to those levels, without engaging in any overt concerted action.” Id. Consciously parallel conduct does not violate antitrust laws. Id. Only actual agreement (i.e., a “conscious commitment to a common scheme designed to achieve an unlawful objective”) qualifies as an unreasonable restraint of trade in violation of antitrust law. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). For Plaintiffs to create a fact issue about whether Defendants entered an agreement, Plaintiffs must present evidence tending to exclude the possibility of independent conduct, including interdependent conduct (e.g., conscious parallelism). In re Flat Glass, 385 F.3d at 359. In the Third Circuit, Plaintiffs may show that Defendants’ parallel conduct is attributable to an agreement (rather than interdependence) by showing three elements: 1. Defendants’ behavior was parallel; 2. Defendants were conscious of each other’s conduct and awareness was an element in their decision-making processes; 3. plus factors showing an actual agreement: (1) motive, (2) actions contrary to Defendants’ interests, and (3) traditional conspiracy evidence. Id. at 360 n. 11. The third element’s list of plus factors is non-exhaustive, but those three factors have been relied on repeatedly by the Third Circuit. Id. at 360. In their Summary Judgment Motions, Defendants do not meaningfully contest the first two elements. In fact, their defense is that the manufacturers were doing the same things because they were “following the leader,” which essentially concedes the first two elements. But the third element is disputed. Plaintiffs typically establish motive by showing market factors that would be conducive to collusion (e.g., market concentration, high barriers to entry, etc.). E.g., In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 398 (3d Cir.2015). Often it is plaintiffs’ inability to establish motive (rather than their ability to establish it) that will have the greatest impact on the plaintiffs’ case, because “the absence of any plausible motive to engage in the conduct charge is highly relevant to whether a ‘genuine issue for trial’ exists within the meaning of Rule 56(e).” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[E]vidence of actions against self-interest means there is evidence of behavior inconsistent with a competitive market.” In re Chocolate Confectionary, 801 F.3d at 398. For example, evidence that prices were raised despite no rise in demand or costs might indicate defendants are acting contrary to their interests. In re Flat Glass, 385 F.3d at 359. But in oligopolies, even a showing that the relevant market was ripe for collusion and that the defendants raised prices without a rise in demand or costs will usually be insufficient to rule out interdependent conduct. Id. at 361. “By nature, oligopolistic markets are conducive to price fixing and will often exhibit behavior that would not be expected in competitive markets. Therefore, these factors are neither necessary nor sufficient to preclude summary judgment, at least where the claim is price fixing among oligopolists.” In re Chocolate, 801 F.3d at 398. Nonetheless, courts must consider these first two factors because they are relevant and inform the inferences that might be drawn from plaintiffs’ other evidence. In re Flat Glass, 385 F.3d at 361 n. 12. Traditional conspiracy evidence will generally be “[t]he most important evidence” in a price-fixing case involving an oligopoly. In re Flat Glass, 385 F.3d at 361 (quoting In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir.2002)). This category of evidence “may involve ‘customary indications of traditional conspiracy,’ or ‘proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings, conversations, or exchanged documents are shown.’ ” Id. at 361 (quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law, 243 (2d ed. 2000)). There are five particular cases in which the Supreme Court and the Third Circuit have developed the law of the plus factors: Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 (3d Cir.1993); In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir.1999); In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir.2004); and In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383 (3d Cir. 2015). The Court has relied heavily on these cases in reaching its decision today. A. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp. In Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the plaintiffs, manufacturers and sellers of consumer electronic products, sued numerous competitor-manufacturers who were headquartered in Japan. Id. at 577, 106 S.Ct. 1348. The plaintiffs’ theorized that defendants had engaged in a “scheme to raise, fix and maintain artificially high prices for television receivers sold by [defendants] in Japan and, at the same time, to fix and maintain low prices for television receivers exported to and sold in the United States.” Id. at 577, 106 S.Ct. 1348 (quoting In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 251 (3d Cir.1983)). The Supreme Court held that plaintiffs had not submitted sufficient evidence to survive the defendant’s summary judgment motion, stressing that the Court was unwilling to make inferences of conspiracy from the ambiguous evidence offered by plaintiffs in light of defendants’ lack of motive to conspire. Id. at 593-94, 106 S.Ct. 1348. The Court explained that “[l]aek of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.” Id. at 596-97, 106 S.Ct. 1348. B. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc. In Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224 (3d Cir.1993), the Third Circuit affirmed in part and reversed in part a district court’s grant of defendants’ summary judgment motion. The plaintiffs had accused the defendants, companies in the oligopolistic fat and bone rendering industry, of conspiring to allocate customers and entering various other agreements related to enforcement of the underlying conspiracy. Id. at 1228. The court distinguished the Petruzzi’s plaintiffs from those in Matsushita, explaining that the Petruzzi’s plaintiffs’ theory of conspiracy made “perfect economic sense” because it would “enable [defendants] to make profits that the free market would not allow them, in both the short-run and the long-run.” Id. at 1232. The court also concluded that two of the three defendants acted against self-interest in a way that was “not attributable to interdependence,” explaining that “[Heaving all other things the same, absent an agreement it does not make economic sense for defendants not to bid on an account unless they have some problem like capacity or they know that the existing price is too high.” Id. at 1245-46. Although it appears that the plaintiffs’ showing of actions against self-interest might have been sufficient standing alone to avoid summary judgment, the plaintiffs had also submitted substantial traditional conspiracy evidence against two of the defendants, including testimony from employees referring to a “code” that defendants had to not solicit each other’s clients; recordings of secretly taped conversations of one of the defendants in which that defendant made reference to not taking other people’s accounts; and expert testimony concluding that the economic data was consistent with a conspiracy. Id. at 1233-34, 1236, 1244. Considering all of the factors, the Third Circuit reversed the grant of summary judgment for these two defendants. As to the remaining defendant, the court acknowledged that defendant had “made claims of capacity problems” and there was evidence that the firm actually took some accounts from the other two defendants. Id. at 1245. Thus, the court affirmed summary judgment as to the third defendant. C. In re Baby Food Antitrust Litig. Six years after Petruzzi’s, the Third Circuit addressed allegations of price fixing in the oligopolistic baby food manufacturing industry, in In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir.1999). The plaintiffs argued that the defendants had engaged in an 18-year price-fixing conspiracy to “fix, raise, and maintain wholesale prices and price levels of baby food in the United States.” Id. at 116. The district court granted the defendants’ summary judgment motion, and the Third Circuit affirmed. Id. at 116. The plaintiffs had submitted an expert report to show that the defendants had motive to conspire and acted against self-interest. Id. at 134. But the court gave the expert report little to no weight given the expert’s admission that his opinion was based on the assumption that defendants had conspired and that he had not “looked at whether the baby food industry fits the model of manufacturers following in their pricing practices the price leader.” Id. As further evidence of the defendants’ actions against self-interest, the plaintiffs had also relied on (1) an internal defendant memorandum in which an employee referred to “our truce” and (2) one manufacturer’s unwillingness to enter into new markets. As to the “truce” reference, the court explained that “the single use of the term in a highly competitive business environment and in the face of continuing fierce competition is as consistent with independent behavior as it is with price fixing.” Id. at 127. As to the manufacturer’s choice not to enter new markets, the court noted that only that manufacturer “was in a position to decide whether it was in- its best interest to make such commitments” in light of the “substantial capital expenditures and resource commitments” that entering a new market would require. Id. The court also placed little weight on the plaintiffs’ traditional conspiracy evidence, which included documentation of industry chatter, manufacturer notes about anticipated competitor price movements, and a manufacturer’s notes indicating its intent to achieve “parity” with a competitor’s price. Id. at 130-31,133. D. In re Flat Glass Antitrust Litig. In In re Flat Glass Antitrust Litigation, 385 F.3d 350 (3d Cir.2004), the plaintiffs argued that manufacturers in the oligopo-listic flat glass industry had conspired to fix the prices of flat glass and auto replacement glass. Id. at 354. All of the defendants except one, PPG, settled with plaintiffs. PPG then filed for summary judgment, which the district court granted. Id. at 353. The Third Circuit reversed the grant of summary judgment as to the flat glass allegations, but affirmed summary judgment as to the alleged auto replacement glass price-fixing conspiracy. Id. at 356, 378. In reversing summary judgment, the court specifically considered the plaintiffs’ plus-factor arguments as to motive, actions against self-interest, and traditional conspiracy evidence. The court concluded that the plaintiffs had shown motive in part because the demand for flat glass was in decline at the time of the alleged conspiracy and the industry experienced excess capacity. Id. at 361. The court also determined that plaintiffs had shown that the defendants had acted against their self-interest because “no evidence suggested] that the increase in list prices was correlated with any changes in costs or demand.” Id. at 362. Nonetheless, the court held that although the plaintiffs’ first two plus factor allegations indicated “that the price increases were collusive,” the plaintiffs had failed to show “whether the collusion was merely interdependent or the result of actual agreement.” Id. at 362. Thus, the court turned to traditional conspiracy evidence. The Flat Glass court concluded that plaintiffs’ traditional conspiracy evidence was sufficient. Plaintiffs submitted evidence showing that the manufacturers were in possession of each other’s price information in advance of announcements, which the court distinguished from the price exchange evidence submitted by the Baby Food plaintiffs because “the exchanges of information [in Flat Glass were] more tightly linked with concerted behavior and therefore they appearfed] more purposive.” Id. at 368-69. Moreover, “several of the key documents [in Flat Glass] emphasize[d] that the relevant price increases were not economically justified or supportable, but required competitors to hold the line.” Id. at 369. Other docu7 ments suggested knowledge of “the plans of multiple competitors,” as opposed to just a single one. Id. at 369. And “[predictions of price behavior were followed by actual price changes.” Id. at 369. E. In re Chocolate Confectionary Antitrust Litig. Most recently, the Third Circuit clarified the plus-factor analysis in In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383 (3d Cir.2015). Direct and indirect purchaser classes sued the three major chocolate manufactures, who together controlled more than 75% of the domestic chocolate market. Id. at 391. The court concluded the defendants had motive to conspire “[gjiven the market concentration and high barriers to entry.” Id. at 398. The court relied primarily on the plaintiffs’ experts to conclude that defendants had acted against their self-interest, relying on the experts’ opinions that the cost increases in the chocolate market could not explain the price increases. Id. at 399. But, as stated in Flat Glass, the court explained that “evidence of a price increase disconnected from changes in costs or demand only raises the question: was the anticompeti-tive price increase the result of lawful, rational interdependence or of an unlawful price-fixing conspiracy?” Id. at 400. The court concluded the plaintiffs had failed to point to evidence that went beyond interdependence. Id. at 401. Thus, as with Flat Glass, the most important evidence was the traditional conspiracy evidence. But here, the court found that evidence wanting. There were two internal memos from Hershey reflecting that Hershey had advance notice of price increases scheduled by Mars and Nestle USA. Id. at 407-08. But the court did not give much weight to those documents because the plaintiffs had “no direct or strong circumstantial evidence that the information came from Hershey’s competitors, much less their upper-l'evel executives.” Id. at 408. There were three email exchanges among the competitors, but the court did not give them much weight, explaining that “sporadic communications among individuals without pricing authority are insufficient to create a reasonable inference of a conspiracy.” Id. at 409. The court also noted that the timing of the communications and the actual price increases were not suspicious. Id. at 407, 409. Plaintiffs attempted to rely on defendants’ departure from their pre-conspiracy conduct as traditional evidence, but the changes they cited were not “radical” or “abrupt” enough to create an inference greater than interdependence. Id. at 410 (quoting Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 935 (7th Cir.2000)). IX. Undisputed Background Facts In antitrust eases, it is often helpful to understand the mechanics of the industry. A. Wallboard Industry Background Wallboard is a building-material panel consisting of a gypsum core pressed between sheets of paperboard. It is used in the construction of interior walls and ceilings for residential and commercial buildings. There are a variety of types of wallboard, varying in thickness, length, core formulations, and applications. Some product lines include different properties, such as fire-resistance, mold-resistance, and impact-resistance. The core ingredient of wallboard is gypsum, but other costs for manufacturers include paper, energy, and labor. 1.Market Share From 2010 through 2012, there were eight manufactures of gypsum tyallboard located in the United States: American, CertainTeed, Lafarge, National, PABCO, TIN, USG, and Georgia-Pacific. Manufacturer market share varied from region to region, but nationally each manufacturer’s market share in 2011 was approximately as follows: • USG: 24-26% • National: 21-26% • CertainTeed: 10.3%-11.7% • American: 10% • Lafarge: 10% • Georgia-Pacific: 10% • TIN: 7% There are multiple distribution channels in the wallboard industry, and Defendants typically sell to the following customers, though no Defendant sells to all of the customer types: (1) gypsum specialty dealers, (2) independent building material dealers and lumber yards, (3) mass merchandisers, and (4) manufactured housing, (5) lumber yard buy-groups, (6) two-step distributors, (7) manufacturers that use the drywall to fabricate specialty products, and (8) contractors. Plaintiffs in the Direct Purchaser Action belong to one of the customer groups. Plaintiffs in the Indirect Purchaser Action purchased wallboard from at least one of the listed customer groups. 2. Demand Demand for wallboard is directly related to the level of activity in the construction industry. The early 2000s saw the end of the housing boom in 2006 and the Great Recession. As a result, demand for new residential and commercial construction in 2011 was approximately 65% less than it was in 2006. The downturn in the construction industry caused the prices of manufacturers’ wallboard products to drop precipitously. As a result, manufacturers shuttered some of their plants. The total number of operating plants in the United States in the mid-2000s was 77 plants, but during 2011 and 2012, there were only 60 operating plants. Ex. 123. 3. Capacity The parties have offered two ways to measure capacity (and thus supply) in the wallboard industry. Theoretical, or “nameplate,” capacity is the capacity of a wallboard plant if it runs seven days a week, 24 hours a day. The theoretical capacity of the entire wallboard industry in the United States is approximately 33.5 billion square feet per year. Effective capacity, or “crewed capacity,” is the capacity of a wallboard plant as it is presently staffed. Defendants urge that the proper measure of supply in the wallboard industry is as a percentage of the crewed capacity. Ex. 48 (Powers decl.) ¶ 39; Ex. 22 (Salah dep.) at 196:4-16, 197:23:11. Plaintiffs, with the support of their experts, counter that the proper measure of supply is as a percentage of the theoretical capacity. Pis. Response Br. at 93-94. 4. Job Quotes At least prior to 2011, manufacturers offered their customers a variety of rebates, discounts, credits, and other price reductions. Thus, regardless of the list price, the actual price that customers paid widely varied. One price negotiation tool was “job quoting.” The practice of job quotes began over 30 years ago to help commercial contractors bid on large jobs. Typically, manufacturers provided job quotes for commercial jobs requiring one million square feet of wallboard or more. Manufactures gave distributors a quote for the entire job (“job quote”) so that the distributor’s customers, the contractors, could big on projects 12 to 18 months in advance. The use of job quotes grew from their inception in the 1980s, and by the 1990s, they were no longer limited to large commercial projects. The job quote practice was easily abused to the detriment of at least some of the manufacturers. The abuses were exacerbated by the recession. Additionally, job quotes were a one-way liability for manufacturers because customers were not required to buy on the quote. Thus, if the market price dropped below the quote price, customers could simply buy drywall using the market price. B. Trade Association Membership & Meetings Plaintiffs have noted numerous instances in which Defendants’ senior leadership were in the same place at the same time. For instance, the drywall and building materials industries have trade shows and conventions that are attended by customers, manufacturers, and dealers. And during the class period, all Defendants belonged to the same trade association, the Gypsum Association, which hosted events attended by Defendants. But it is now cannon that evidence of competitors meeting together, without more, is insufficient to raise inferences of conspiracy without additional evidence. E.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 567 n. 12, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 409 (3d Cir.2015); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1242 n. 15 (3d Cir.1993); Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 473 (3d Cir.1985). That said, opportunities to conspire may be probative of a conspiracy when meetings of Defendants are closely followed in time by suspicious actions or records. See In re Text Messaging Antitrust Litig., 782 F.3d 867, 878 (7th Cir.2015) (explaining that plaintiffs’ evidence of opportunities to conspire would have been “more compelling if the immediate sequel to any of these meetings had been a simultaneous or near-simultaneous price increase by the defendants”); Fragale & Sons Beverage Co., 760 F.2d at 474 (concluding, in a non-oligopoly case, that plaintiffs had submitted sufficient evidence to survive summary judgment in a refusal-to-deal conspiracy, where the plaintiff showed that a dealer-defendant agreed to sell to plaintiff and later repudiated that agreement and that an intervening meeting took place between the dealer-defendant and plaintiffs direct competitor); In re Linerboard Antitrust Litig., 504 F.Supp.2d 38, 59 (E.D.Pa.2007) (“Importantly, plaintiffs do not offer their evidence of opportunity to conspire in isolation.”). To the extent Plaintiffs have submitted evidence of opportunities to conspire that are closely linked in time with suspicious documents or changes in pricing practices, the Court will consider that evidence below. But, the Court will not give weight to any evidence that shows a bare opportunity to conspire, without more. X. Bourjaily and Application of the Co-Conspirator Hearsay Exception In considering whether Plaintiffs have submitted sufficient evidence to survive summary judgment, the Court may consider only admissible evidence. Fed. R. Civ. P. 56(c). This case involves multiple Defendants who are alleged to have been in a conspiracy. And most of Plaintiffs’ evidence involves internal corporate communications from which Plaintiffs contend agreement might be inferred, rather than direct communications among Defendants. As such, the chief evidentiary question the Court must address is whether the hearsay statements made by one Defendant are admissible against the other Defendants. More specifically, are the statements made by one Defendant attributable to all Defendants by virtue of the co-conspirator exception to the rule against hearsay? In answering this question, the Court finds it helpful to review the evolution of the co-conspirator exception and its application in the Third Circuit, particularly in civil antitrust cases. A. Brief History of the Co-Conspirator Exemption Before the adoption of the Federal Rules of Evidence in 1975, which codified the co-conspirator hearsay exemption, federal courts had long applied the doctrine that the declarations of one conspirator made to a third party are admissible against his co-conspirators so long as the declarations were made in furtherance of the objects of the conspiracy. See Lutwak v. United States, 344 U.S. 604, 617-18, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Logan v. United States, 144 U.S. 263, 308-09, 12 S.Ct. 617, 36 L.Ed. 429 (1892). In Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Supreme Court winnowed the viability of the co-conspirator exemption by providing that “such declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy.” “Otherwise,” the Court continued, “hearsay would lift itself by its own bootstraps to the level of competent evidence.” Id. The Court reiterated this so called “bootstrapping-rule” again in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In Nixon, the Court provided that “[declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one of more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy.” Id. at 701, 94 S