Citations
- 245 F. Supp. 3d 1343
Full opinion text
ORDER
Timothy C. Batten, Sr., United States District Judge
This consolidated antitrust class action comes before the Court on Defendants’ motions for summary judgment [350, 353] and three related motions to exclude expert testimony [625, 631, 632].
1. Factual Background
A. Delta and AirTran
Defendant Delta Air Lines, Inc., one of the world’s largest airlines, is headquartered in Atlanta and has its largest hub at Atlanta’s Hartsfield-Jackson International Airport. Defendant AirTran Airways, Inc.—a subsidiary of Defendant AirTran Holdings, Inc. (collectively with AirTran Airways, “AirTran”)—was an airline that also maintained a hub in Atlanta for many years until 2014, when it ceased operations after having been acquired by Southwest Airlines approximately three years earlier, in 2011.
Although the parties dispute the extent to which each airline was concerned about the other’s activities, there is no dispute that Delta and AirTran were competitors for market share, particularly at their mutual hub in Atlanta. See, e.g., [569] at 68 (Delta’s CEO testifying that AirTran was “part of the [competition] equation” but not conceding that AirTran was Delta’s largest competitor out of Atlanta); [580] at 13 (AirTran’s CEO testifying that Delta was AirTran’s number one competitor in Atlanta).
Delta is known as a “legacy carrier” because it had interstate routes in place at the time of airline deregulation in 1978. In and prior to early 2008, the legacy carriers in the United States included Delta, Continental Airlines, Northwest Airlines, American Airlines, US Airways, and United Airlines.
AirTran, by contrast, was what is known as a “low-cost carrier” (“LCC”). In its most literal sense, the LCC designation is indicative of airlines with business models that minimize costs and allow airlines to charge lower fares, but it is also used more generally as a “catchall name for post-deregulation new entry and, in fact, disguises diverse airlines and heterogeneous strategies.” Eldad Ben-Yosef, The Evolution of the Airline Industry: Technology, Entry, and Market Structure—Three Revolutions, 72 J. Air L. & Com. 305, 317 (2007); see also Erica Wessling, Note, Spirit Airlines, Inc. v. Northwest Airlines, Inc.: A Case for Increased Regulation of the Airline Industry, 6 Wm. & Mary Bus. L. Rev. 711, 724 (2015). Prominent LCCs during the time period in question included Southwest, JetBlue Airways, Allegiant Air, Frontier Airlines, and Spirit Airlines.
B. The Trend Toward Unbundling and the Introduction of Bag Fees
For many years, the purchase of an airline ticket generally encompassed all or most of the services associated with air travel. In the early-to-mid-2000s, however, some airlines began to charge separate fees for services and products ancillary to the purchase of a seat, such as meals and snacks, premium beverages, call-center booking, airport ticketing, and curbside check-in.
In 2006 and 2007, low-cost carriers led the way in introducing fees for passengers’ cheeked luggage: Allegiant introduced a $2-per-bag fee in November 2006; Spirit began charging for two or more checked bags in February 2007 and then for a first checked bag in June of that year; Skybus Airlines implemented fees for first, second, and third checked bags in May 2007; and Virgin America began charging for second checked bags in August 2007. In January 2008, even Southwest, which markets itself as the “bags fly free” airline, introduced a fee for a third-checked bag.
Before long, legacy airlines began to follow suit. In February and March 2008, every legacy carrier except Alaska announced the introduction of fees for second-checked bags beginning in May. Delta was the third legacy carrier to do so, announcing on March 18 that it would implement a $25 second-bag fee beginning on May l. AirTran—which had previously refrained from charging baggage fees— announced on April 11 that it would implement a second-bag fee of $10 (if paid online) or $20 (if paid at the airport) beginning on May 15.
American Airlines then became the first legacy carrier to introduce a first-bag fee, announcing on May 21, 2008 that it would implement a $15 first-bag fee effective June 15. On June 12, US Airways and United both announced that they would impose $15 first-bag fees effective July 9 and August 18, respectively. On July 9, Northwest announced that ,it would begin charging a $15 first-bag fee on August 28, and on September 5, Continental announced that it would introduce a $15 first-bag fee on October 7. By October 8, therefore, Delta and Alaska were the only legacy carriers that had not implemented a $15 first-bag fee, and AirTran was among the minority of LCCs that had not implemented a first-bag fee. See generally [353-29] at 34-36.
During this same time frame, Delta’s legacy competitors made public statements indicating that they ■ expected ancillary fees—including but not limited to first-bag fees—to prove profitable. On July 9, 2008, Northwest announced that it expected its fee structure, including its newly announced first-bag fee, to generate between $250 and $300 million in revenue annually. [350-63] at 4; see also [350-64] at 6 (reiterating during a July 23 earnings call that Northwest expected increased baggage, service, and ticket-change fees to “drive between 250 and 300 million in annual revenue improvement”). American stated during its July 16 earnings call that it expected all of its fee increases (including its first-bag fee) “to drive several hundreds of millions of dollars of new revenue” and that its first-bag fee had resulted in no negative operational effects. [350-60] at 7, 19.
On July 22, 2008, both United and US Airways held earnings calls in which they too praised bag fees. [350-61] at 9, 11 (United stating that unbundling had “creat[ed] significant incremental revenue”' and “estimat[ing] that the potential revenue from the new baggage service handling fees will be about $275 million annually in 2009”); [350-62] at 8, 17 (US Airways reporting that implementation of the bag. fee had gone smoothly, that it was not seeing “any difference in market share or bookings between carriers that [had first-bag fees] and carriers that [didn’t],” and that it estimated that 'shifting to “a la carte”- pricing would yield between $400 and $500 million in revenue annually).
On September 5, 2008, when Continental announced its decision to charge for first-checked bags, it stated that it had not seen any gain in market share by holding out. [350-73] at 2. On September 16, the Wall Street Journal reported that “airline fees are here to stay,” explaining that “baggage fees and other charges [were] significantly improving the usually dismal finances of the industry” because passengers were “paying them, if begrudgingly, and [weren’t] shifting in large numbers to the few airlines that don’t charge fees [350-89] at 2. '
C. Delta’s Bag-Fee Discussions During the Summer of 2008
American’s May 21, 2008 first-bag-fee announcement prompted internal discussions about whether Delta should introduce a similar fee. In the days following American’s announcement, Delta’s CEO Richard Anderson and executive vice president (“EVP”) of operations Steve Gorman were in agreement that the airline should not introduce a first-bag fee at that time due to concerns relating to customer dissatisfaction, operational impacts during the busy summer travel season, and Anderson’s belief that “part of the basic bargain” when purchasing an airplane ticket included one checked bag. [350-49]. EVP of network planning and revenue management Glen Hauenstein concurred, recommending that if the industry was moving toward .charging a first-bag fee, Delta should “be the last in.” [556] at 372. On May 28, Anderson closed the debate, at least for the time being, by sending Gor-man an e-mail that read: “No $15.00 fee. Issue closed. Sit tight with no announcement.” Id. President Ed Bastían testified in his deposition that he was in agreement with that decision. [350-22] at 114.
Following the June 12, 2008 first-bag-fee announcements by US Airways and United, Delta’s internal bag-fee discussions intensified, although Anderson and Gorman remained opposed to the idea. [556] at 379. On June 16, Delta’s Airport Customer Service (“ACS”) group, which was headed by senior vice president (“SVP”) Gil West, presented a written analysis of the first-bag fee to the Corporate Leadership Team (“CLT”). See [350-54]; [366] at 29. The ACS presentation explained that a $15 first-bag fee could potentially yield $220 million annually in additional revenue even if forty percent of Delta’s bag-checking passengers stopped checking a bag after the fee was introduced. [350-54].at 6. The presentation ' also recognized potential risks of introducing a first-bag fee, including negative operational results, the need for additional gate and ramp staff to collect fees and baggage, and concerns about the perception that the introduction of the fee might create. Id. Ultimately, ACS recommended that Delta not impose a first-bag fee “at this time” but that it “continue to monitor [other airlines] through the end of the summer and re-evaluate.” Id.
Delta’s leadership was receptive to ACS’s recommendation, as Anderson and Bastían continued to believe that Delta should not charge a first-bag fee. See [350-58] at 2; [350-59] at 2; [556] at 491; [557] at 308. During a Delta earnings call on July 16, 2008, Kevin Crissey—an airline-industry analyst employed by UBS—asked about Northwest’s recently announced first-bag fee. Bastían responded that Delta had “no plans to implement it at this point” but would “continue to study” the question. [350-67] at 18. On August 1, Anderson delivered a weekly recorded message ■ to employees in which he explained that Delta would increase its second-bag fee but continue to not charge for a first-checked bag. [557] at 333. He explained that Delta had an “agreement” with its customers that with the purchase of a ticket “every customer gets a carry-on brief case or purse, one regulation-sized roller bag and one checked bag weighing no more than 50 pounds.” Id.; [570] at 189. Anderson also explained that Delta’s bag-fee policy made sense both “in 'the fuel environment” and because Delta is primarily in the business of carrying passengers, not cargo. [557] at 333.
But internally, Delta was studying the first-bag fee more closely. In mid-August 2008, Delta’s manager of baggage performance, Stephen Almeida, circulated a first-bag fee analysis that noted, among other things, that brand-tracking studies had indicated that “not charging for the 1st checked bag” was a primary reason some passengers ■ chose to book Delta flights. [557] at 394-95. A September 2008 focus group indicated that Delta’s customers understood the necessity of charging for bags but would actively seek out airlines that did not pass on those charges. [557-1] at 125. On September 30, Pam Elledge, Delta’s SVP of global sales, sent an e-mail to Hauenstein, Grimmett, and others in which she explained that her department was continuing to “quantify” the issue but believed that “price, schedule and [frequent flyer] loyalty” were the primary factors that motivated passengers to book Delta, with first-bag fee being a “tiebreaker.” [557-1] at 106.
By late September 2008, some Delta executives were rethinking the wisdom of a first-bag fee. On September 23, Anderson gave remarks at a CEO forum in which he stated that Delta was “trying to decide whether or not [it] should charge for the first checked bag,” noting that it “could bring [Delta] hundreds of millions in additional revenue next year.” [557-1] at 129. On September 26, Delta CFO Hank Halter identified a $15 first-bag fee as an option to generate additional revenue, potentially as much as $29.7 million during the fourth quarter of 2008 alone. [350-94] at 2, 13. Two days later, Anderson emailed Bastían to suggest that Delta “think about implementing the [first-bag] fee post merger” because there was “Alot [sic] of revenue involved.” [350-97], Bas-tían agreed but noted that Hauenstein was opposed to the fee. Id. Anderson and Bas-tían both agreed that Delta should discuss the merits of the fee “at [the] right time.” Id. The next day, September 29, 2008, Anderson, Bastían, Hauenstein, and other Delta executives attended a quarterly finance meeting at which first-bag fee was discussed. A “key consideration” was the risk that Delta’s LCC competition, including but not limited to AirTran, were promoting the fact that they did not have the fee. [557-1] at 67. An October 10 e-mail from Anderson noted that Delta was “still studying” the first-bag fee. [557-1] at 174.
D. AirTran’s Bag-Fee Discussions and Monitoring of Delta During the Summer of 2008
During the summer of 2008, AirTran was engaged in its own inquiry into the first-bag fee, and Delta was very much a consideration. That June, CEO Robert Fornaro told attendees at a Merrill Lynch transportation conference that AirTran had not instituted a first-bag fee because it would be “pretty uncomfortable” competing in Atlanta with Delta, which was not charging a first-bag fee at that time. [556] at 472; [556-1] at 1511.
When Northwest announced its first-bag fee on July 9, 2008, AirTran was anxiously waiting to see if Delta would follow suit. AirTran’s SVP of customer service, Jack Smith, told his subordinate Greg Sayler that he hoped Delta was “right behind” Northwest. [557] at 197, 211. When senior director of pricing and distribution Matthew Klein sent an e-mail praising the first-bag fee, SVP of marketing and planning Kevin Healy responded: “Cheer louder, the guys with the blue and red tails in ATL [i.e., Delta] need to hear you.” Id. at 194. On July 10, AirTran was preparing to introduce a first-bag fee if Delta did, but it was somewhat concerned about technological limitations. [557] at 211. Healy suggested that perhaps AirTran should announce that it would implement a first-bag fee on a future date and back off if Delta didn’t follow. Id. He also suggested “testing] the water” by charging for a first bag on Air-Tran’s lowest flights, both to generate incremental revenue and to show its competitors that it supported first-bag fees. Id.
By mid-July, AirTran was “desperate for revenue” according to Klein, and the first-bag fee had become the airline’s “new number one revenue priority.” [557] at 253-256. Internal projections valued the fee at between $60 and $84 million per year, even if thirty percent of AirTran’s bag-checking customers stopped checking bags in response to the fee. Id. at 258, 260. As AirTran worked to develop the technological capability to implement a first-bag fee, id. at 255-260, it remained very concerned about what Delta planned to do, id. at 314.
On July 12, 2008, Sayler sent an e-mail to Smith stating that while he had no “official” information, his wife Robin, who was employed by Northwest, believed that Delta would introduce a first-bag fee around August 28. [557] at 245; [577] at 52. Smith responded that he hoped that information was accurate, then he forwarded Sayler’s e-mail to Fornaro, adding only an explanation of who Robin was and her status as a Northwest employee. [557] at 245-47.
Another employee who reported to Smith was Scott Fasano, AirTran’s director of customer service standards and a former Delta employee. On July 31, 2008, Fasano sent an e-mail to Smith reporting that Delta and AirTran were “in a standoff’ regarding first-bag fees and Delta was “carefully watching [AirTran] for a move.” [556] at 591. Smith forwarded that information to Fornaro and indicated it came from Fasano’s “internal [Delta] grapevine.” Id. In response, Fornaro stated: “They should hear through the grapevine that we are doing the programming to launch this effort.” Smith assured Fornaro “[i]t will be communicated today.” Id. at 597. Healy also informed Fornaro that AirTran was ready to implement the first-, bag fee for travel beginning on September 4. Id. at 591. He had hoped someone would ask about it on the most recent earnings call, but he assured Fornaro that he would continue to “push it out there.” Id.
On July 31, 2008, Fasano attempted to send e-mails to two individuals he had worked with while at Delta—Gerry Boeck-haus and Amanda Burman—to inquire about Delta’s first-bag-fee plans. [556] at 853-85. However, unbeknownst to Fasa-no, both Boeckhaus and Burman had left Delta’s employ, and it is undisputed .that they did not receive the e-mails Fasano sent to their Delta e-mail addresses. [554-1] at ¶ 106; [350-24] at 21; [350-25] at 8. Fasano then spoke with Mike Rossano and Mike Ringler, who were Delta’s station managers in Knoxville and Miami, respectively. [556] at 587; [363] at 46-47, 66-67; [582] at 28. Fasano reported to Smith that Delta was “holding and [AirTran had] been included in every conversation.” [556] at 587. Both Ringler and Rossano denied having spoken with Fasano about bag fees, and Ringler denied having spoken with Fasano at all during the time period in question, [350-40] at 59; [350-41] at 79.
On August 4, 2008, Healy sent an e-mail to two AirTran employees—Rocky Wiggins and Ted Hutchins—asking what was known about Delta’s technological capabilities with respect to the first-bag fee. [557] at 345. He also advised that “we don’t need to .maintain confidentiality on the fact that we’re working on this as well.” Id.
The next morning, Fasano sent an email to Healy and Smith “following up on [their] conversation” from the day before. [556] at 610. Fasano explained that he “had a cup of coffee with one of [his] former colleagues who is still embedded in the team amongst the Northwest crew.” Fasano’s colleague—who remained unnamed but was described by Fasano as being “very. connected on the high level operational and planning side” of Delta’s operations—/had informed Fasano that Delta’s functionality was in place to go live with, a first-bag fee, but Delta “want[ed AirTran] to jump first.” [556] at 610. Healy reprimanded Fasano , and • “made it very clear” that the conversations reflected in his e-mail “can’t happen.” [353-90] at 187; [358-81] at 161-62. There is no suggestion that Fasano made any further attempts to’contact Delta or learn of its plans vis-á-vis a first-bag fee. On August 8, 2008, Fornaro sent an e-mail to Fornaro and others stating that AirTran would not impose a first-bag fee unless Delta did. [556] at 623.
E. October 2008: Defendants’ Final Decisions Are Made
On October 15, 2008, before either Defendant had decided to impose a first-bag fee, Delta held its third-quarter earnings call, during which it stated that “a la carte pricing is where we need to go as an industry’ and the impending merger with Northwest'would give Delta “another opportunity to look again with respect to where the fee-based revenues align.” [350-99] at 18.
, In the meantime, Delta continued, to study the first-bag fee internally. Revenue management, with some input from other departments such, as ACS, prepared a “value proposition” analysis of the first-bag fee, which it generally opposed. The PowerPoint deck analyzed the first-bag fee under best-case, worst-case, and mid-range scenarios by taking the estimated revenue of the first-bag fee and offsetting it by the estimated share-shift to other airlines, including AirTran. The latter factor depended in part on the likelihood that other airlines would match Delta’s first-bag fee. Initially, Delta predicted there was only a fifty percent probability that AirTran would match, yielding a mid-range estimate of a $46 million loss to Delta. [556] at 756-57, 786-87.
On October 23, 2008, AirTran held its third-quarter earnings call. The prepared remarks did not mention first-bag fees, but the first question, which came from Kevin Crissey, did: “First check bag fee, you don’t have one, do you? And will you?” Fornaro responded:
Kevin, good question. Let me tell you what we’ve done on the first bag fee. We have the programming in place to initiate a first bag fee. And at this point, we have elected not to do it, primarily because our largest competitor in Atlanta where we have 60% of our flights hasn’t done it. And I think, we .don’t think we want to be in a position to be out there alone with a competitor who we compete on, has two-thirds of our nonstop flights and probably 80 to 90% of our revenue is not doing the same thing. So I’m not saying we won’t do it. But at this point, I think we prefer to be a follower in a situation rather than a leader right now.
[353-16] at 7. Crissey followed up by asking, “But if they were, you’d consider it? It’s not a matter of practice?” Fornaro responded: “We would strongly consider it, yes,” Id.
Delta executives soon learned of Forna-ro’s statements and immediately questioned the wisdom of them. Revenue management updated the value proposition deck on October 23 and early October 24, 2008, to increase the likelihood that Air-Tran would match any first-bag fee from fifty percent to seventy-five percent, bringing the estimated annual loss down from $46 million to between $19 and $35 million. [557-1] at 290-91, 358-59. Later on October 24, the value proposition was revised to reflect a ninety-percent likelihood that AirTran would match. [556] at 844-45. This change was made at Hauenstein’s direction, [586] at 24, who made the number up but thought it was a more “realistic” expectation, [567] at 124-25. At that increased likelihood, Delta’s mid-range estimate became “slightly. positive” for the first time. [556] at 844-45. Also on October 24, Hauenstein reported to Anderson that AirTran “clearly want[ed] bag fees” and that the issue would be discussed at the CLT meeting that was planned for the following Monday, October 27. [556] at 798.
At the October 27, 2008 CLT meeting, revenue management presented its value proposition analysis—with the calculations based on a ninety-percent probability that AirTran would match Delta’s first-bag fee—and generally advocated against the fee. Gorman and West reiterated their support for the fee. Bastían then spoke and advocated in favor of the fee based on the expected revenues it would generate during the tough economic times, including Delta’s need to fund its employee pension plan. Anderson agreed, and ultimately the CLT approved the first-bag fee at the October 27 meeting.
One week later, on November 5, 2008, Delta issued a press release—titled “Delta Aligns Policies and Fees to Offer Consistency for Customers Traveling on Delta- and Northwest-Operated Flights”—in which it announced that for travel beginning on December 5, domestic passengers would be charged “$15 for the first checked bag and $25 for the second checked bag ..., consistent with Northwest’s existing policies.” [350-127] at 3.
Anderson testified that Fornaro’s October 23 comments “didn’t have any bearing on [the CLT’s] decision to put in place a first bag fee.” [350-2] at 94; see also [350— 20] at 68 (Anderson testifying that “Air-Tran’s match really wasn’t relevant to the decision”). Bastían similarly testified that Fornaro’s statement had “[n]o impact whatsoever” on his stance; his concern was Delta’s survival and that he “thought the need was for Delta to take care of itself and not worry about what a relatively small carrier was going to do.” [350-23] at 77, 85. AirTran was not relevant to Gorman’s opinion on the first-bag fee either. [350-29] at 44; [350-30] at 60. Grim-mett, West, and Eric Phillips (one of the authors of the value proposition analysis) did not recall the chance of AirTran matching being brought up at the CLT meeting, [350-31] at 214; [350-44] at 185; [350-38] at 306-07. Hauenstein testified that Delta would have made the decision to impose a first-bag fee without regard to what AirTran did. [350-32] at 127.
Delta’s November 5, 2008 press release was circulated within AirTran shortly after it was published. When Healy was asked by another AirTran employee whether Air-Tran should “take the plunge right away or ... test whether this provides any advantage in ATL?,” Healy responded that he was “[n]ot sure yet .... ” [350-128]. Healy then sent an e-mail to Klein and other AirTran employees saying that he did not believe AirTran had a choice about imposing a first-bag fee, and the question to him was whether AirTran should charge a “discounted]” fee of $5, $7, or $10. [350-129]. Klein responded that he was “working on the new valuation” but believed $15 was the way to go, and Healy instructed him that his valuation should “make some estimate for the value of not implementing the first bag fee,” such as share shift and good will. Id. At 11:06 p.m. on November 5, Klein e-mailed Fornaro, AirTran’s CFO Arne Haak, Healy, and others and attached a spreadsheet describing the “staggering potential for 1st bag revenue.” [353-21]. A November 6 e-mail from Haak to Healy stated, “Should we charge the fee? (I think we have already decided this.)” [556-1] at 8.
On the morning of Friday, November 7, 2008, AirTran executives “discuss[ed] the merits of whether [AirTran] should implement or not implement” a first-bag fee. [353-93] at 206; [353-25]. Smith recalled that some people were “certainly ... in favor of not charging first-bag fees, saying that it would give [AirTran] a competitive advantage.” [353-104] at 129. He, however, “was of the opinion that we should do first-bag fees,” and he was “pretty disgusted at the end of the call because we had the people who were responsible for generating revenue saying, [‘] Gee, I don’t know if we really want to do this. We may lose customers.[’]” Id. at 130. Shortly after that meeting, AirTran’s senior director of corporate finance Jason Bewley circulated an update to the first-bag-fee analysis that Klein had circulated late on November 5. Bewley’s analysis “mirrorfed]” Klein’s and estimated “approximately $100MM of revenue in 2009” from imposing a first-bag fee. [353-26],
AirTran’s executives decided to “let it sit over the weekend,” and the final decision to impose a first-bag fee was made on the morning of November 10, 2008. [353-83] at 85-86. On November 12, AirTran issued a press release announcing that it too would impose a $15 first-bag fee on December 5. [556-1] at 23.
These lawsuits were subsequently filed alleging that Defendants’ simultaneous imposition of a $15 first-bag fee was the result of unlawful collusion in violation of § 1 of the Sherman Act. Defendants have moved for summary judgment.
II. Daubert Motions
As noted above, the parties have filed several motions to exclude expert testimony that must be resolved before the Court turns to the merits of Defendants’ motions for summary judgment.
A. Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides that an expert “may testify in the form of an opinion or otherwise” if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The Supreme Court construed and expounded upon Rule 702’s requirements in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), emphasizing that “the inquiry envisioned by Rule 702 is ... a flexible one.” Daubert, 509 U.S. at 594, 113 S.Ct. 2786.
In this circuit, Daubert motions are governed by a three-pronged test:
Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote omitted). “The party offering the expert has the burden of satisfying each of these three elements by a preponderance of the evidence.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).
When a Daubert motion challenges the reliability or helpfulness of an expert opinion, the Court must be wary of excluding it “based on skepticism as to believability,” for credibility or believability is “an assessment to be made by the jury” alone. Bullock v. Volkswagen Grp. of Am., Inc., 107 F.Supp.3d 1305, 1309 (M.D. Ga. 2015); see also Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S.Ct. 1036, 1049, 194 L.Ed.2d 124 (2016) (“Once a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury.”); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (Daubert “is not intended to supplant the adversary system or the role of the jury,” and a court should not “make ultimate conclusions as to the persuasiveness of the proffered evidence.”). Doubts regarding the credibility of or weight that should be given to otherwise reliable and relevant testimony are best addressed through “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
B. Defendants’ Motion to Exclude Hal Singer’s Merits Testimony [625]
Defendants have jointly moved to exclude certain opinions of Hal Singer, Plaintiffs’ expert economist, regarding the merits of Plaintiffs’ claims. Defendants argue that Singer has impermissibly opined about the ultimate legal issue in this case, adopted a definition of collusion that is contrary to the Eleventh Circuit’s definition, relied on factual findings and assumptions that are not supported by the evidence, and weighed the evidence and witness credibility.
1. Ultimate Legal Issue
Defendants first argue that Singer has impermissibly opined about the ultimate legal issue in this case, namely, whether Defendants colluded to impose a first-bag fee. However persuasive this argument might be with respect to Singer’s initial reports and testimony—in which he expressly opined about the existence of “collusion” or a “conspiracy”—it does not compel exclusion of the opinions contained in his amended reports, which are the only opinions presently at issue. Singer supplemented and then amended his prior reports to “clarify that [his] testimony at trial will focus on whether Defendants’ conduct was consistent with anticompeti-tive coordination, as opposed to whether Defendants in fact ‘colluded.’ ” [566-1] at 1679.
Courts in this circuit and others regularly admit expert testimony that certain conduct or evidence is “consistent with a finding that Defendants engaged in a conspiracy to fix prices.” In re Polypropylene Carpet Antitrust Litig., 93 F.Supp.2d 1348, 1355 (N.D. Ga. 2000); Harcros, 158 F.3d at 565 (holding that expert testimony is admissible so long as it “constitute^] one piece of the puzzle that the plaintiffs endeavor to assemble before the jury”); see also In re Urethane Antitrust Litig., 152 F.Supp.3d 357, 359-61 (D.N.J. 2016) (admitting expert economic testimony that certain evidence was “not consistent with the existence of a price-fixing conspiracy”); In re Processed Egg Prods. Antitrust Litig., 81 F.Supp.3d 412, 424 (E.D. Pa. 2015) (“An economic expert may permissibly testify as to whether certain conduct is consistent with collusion or an entity or individual’s self-interest ....”); U.S. Info. Sys., Inc. v. IBEW Local Union No. 3, 313 F.Supp.2d 213, 240 (S.D.N.Y. 2004) (“Economists often explain whether conduct is indicative of collusion.”). The Court will not exclude Singer’s testimony on this basis.
2. Singer’s Definition of Collusion
Defendants next urge that even if an expert may, as a general principle, testify that certain conduct is consistent with conspiracy, Singer’s opinions remain inadmissible because his definition of collusion is at odds with the Eleventh Circuit’s definition. Specifically, Defendants accuse Singer of defining collusion in an overly broad manner that would encompass situations the Eleventh Circuit has defined as “conscious parallelism.” If true, this would indeed mandate exclusion of Singer’s testimony. Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1323 (11th Cir. 2003) (affirming exclusion of expert testimony where expert “defined ‘collusion’ to include conscious parallelism,” i.e., he failed to “differentiate between legal and illegal pricing behavior, and instead simply grouped both of these phenomena under the umbrella of illegal, collusive price fixing”).
When isolated and taken out of context, the deposition testimony quoted by Defendants might support their position. However, when the entirety of Singer’s opinions is considered in context, it is apparent that he properly distinguishes between unlawful collusion and lawful conscious parallelism. See generally E.I. Dupont de Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv-58, 2011 WL 13079484, at *1 (E.D. Va. June 15, 2011) (denying motion to exclude testimony that was “based largely on statements taken out of context from [the expert’s] report or deposition”); Reed v. City of Greenwood, No. 4:02-cv-287, 2005 WL 6000490, at *1 (N.D. Miss. Sept. 30, 2005) (“The Court has reviewed the deposition testimony at issue and finds that when [the expert’s] testimony is viewed in its entirety rather than in isolation as presented by the defendants, it is evident that the defendants’ motion to strike [the expert’s opinions] is without merit.”).
Singer defines collusion as “a type of coordinated interaction whereby ostensibly independent firms act jointly only as a result of a prior assurance between firms.” [399-4] at ¶ 19 (emphasis added). He never purported to define collusion solely by reference to whether a communication “had a material effect” on a competitor’s decision, as Defendants suggest. [625-1] at 8 (quoting [626-5] at 1089). According to Singer, such a showing is necessary—but not by itself sufficient—to support a finding of collusion:
[I]f the fact finder here concludes that ... AirTran’s overtures had no bearing on Delta’s decision making, then I would gladly admit that consumers are no worse off as a result of the communication .... I do think that ... to generate economic harm ... a critical inquiry is whether or not the communication had a material effect on Delta’s decision making.
[626-5] at 1089.
Throughout his reports and his deposition testimony, Singer properly .contrasts unlawful collusion with other types of “coordinated interaction,” much of which he concedes is not “illegal under the antitrust laws” and is “generally considered benign when each firm acts independently.” [399-4] at ¶ 19. He also testified that “the facts and the evidence in this case, when analyzed under the proper economic lens, is more consistent with plaintiff's allegations of a conspiracy than it is with the alternative hypothesis of unilateral conduct or ... conscious parallelism.” [626-6] at 115-16 (emphasis added); see also id. at 118-19 (explaining the difference between collusion and conscious parallelism).
When viewed in the appropriate context, Singer’s testimony and opinions properly account for the well recognized distinction between conscious parallelism and unlawful collusion. Thus, the Court will deny this aspect of Defendants’ motion to exclude as well.
3. Singer’s Game-Theory Analysis
Singer’s opinions regarding collusion employ an economic modeling tool known as game theory, and specifically, a permutation thereof known as the prisoner’s dilemma. The prisoner’s dilemma model purports to depict the payoffs to two “players” of various strategies in a “game” played with each other in order to predict the strategy that each player will pursue and provides insight, from an economic perspective, into the effects of those choices on individual and collective welfare.
Singer relies on the prisoner’s dilemma “to test whether Delta and AirTran, as rational, profit-maximizing firms, would have chosen to adopt first bag fees unilaterally (that is, absent the alleged conspiracy).” According to him, “[t]he results of [his] analysis show that neither Delta nor AirTran would have rationally adopted a first bag fee independently.” [556-1] at 1572. Defendants, however, assert that the output of Singer’s game-theory analysis is rendered unreliable by virtue of the inputs Singer relied on.
Defendants fault Singer’s game-theory analysis insofar as it relies on figures contained in the value proposition document as a proxy for measuring Delta’s payoffs. Defendants argue that the undisputed evidence shows that “those slides neither represented the views of ‘Delta’ nor were intended to be Delta’s estimates of revenues that might be gained or lost if Delta implemented a first bag fee.” [625-1] at 15. Defendants also argue that Singer’s analysis is inadmissible because he improperly weighed the credibility of witnesses and substituted his own views of the evidence for the testimony of those with firsthand knowledge. Finally, Defendants assert that the model erroneously assumes that Defendants were making their bag-fee decisions with complete information about each other, simultaneously and as though those decisions could not subsequently be changed. Whatever fodder these arguments might provide for cross-examination of Singer about his game-theory model, they do not warrant exclusion of his opinions.
“When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. The critical inquiry at this stage of the analysis is whether Singer’s testimony and opinions have “a reasonable factual basis.” United States v. 0.161 Acres of Land, 837 F.2d 1036, 1040 (11th Cir. 1988) (noting that an expert’s opinion is admissible “provided that he states the assumptions on which his opinions are based,” even if those assumptions omit certain evidence). In other words, the facts relied upon by an expert “must find some support ... in the record” and “must be supported by more than subjective belief and unsupported speculation,” but “mere weaknesses in the factual basis of an expert witness’ opinion bear on the weight of the evidence rather than on its admissibility.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800-01 (6th Cir. 2000) (internal punctuation omitted); accord Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (expert testimony should be excluded where “it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison,” but “other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony”) (internal punctuation omitted).
Courts have excluded expert testimony founded upon facts that find no support in the record. See, e.g., Holiday Wholesale Grocery Co. v. Philip Morris, Inc., 231 F.Supp.2d 1253, 1288 (N.D. Ga. 2002) (where an expert premised his opinions “to a major degree” on what he admitted to be a “mistaken” understanding of the evidence, that opinion was inadmissible), aff'd sub nom Williamson Oil, 346 F.3d at 1323. But so long as the expert relies upon record evidence and identifies the facts on which he relies, “it is for opposing counsel to inquire into the expert’s factual basis,” and “[i]mportantly, the jury is instructed that it is completely free to accept or reject an expert’s testimony, and, to evaluate the weight given such testimony in light of the reasons the expert supplies for his opinion.” 0.161 Acres of Land, 837 F.2d at 1040-41.
Singer’s game-theory analysis satisfies these criteria. His reports and testimony set out in detail the record evidence on which he bases his opinions. When there is additional or conflicting evidence in the record, Singer addresses it head-on in his reports, which at times does include his analysis of the credibility of other witnesses. See generally Maiz v. Virani, 253 F.3d 641, 667 (11th Cir. 2001) (noting that an expert is permitted to make reasonable assumptions and explain them). But he does not intend to offer such testimony at trial, [656-1] at ¶ 3, and the Court will disregard his opinions regarding witness credibility for purposes of resolving the pending motions for summary judgment. Nor does Singer fail to account for alternative explanations in a manner that is fatal to the admissibility of his opinions. In sum, the Court finds that the inputs relied upon by Singer in connection with his game theory model are not so unsound or unsupported as to render the model’s outputs unreliable. Because Singer’s opinions are supported by a reasonable—even if not infallible—factual basis, they are admissible.
In conclusion, Singer’s opinions satisfy the requirements of Rule 702 and Daubert, and Defendants’ arguments to the contrary merely highlight issues that go to the weight that a fact-finder should give Singer’s opinions. Defendants’ motion to exclude Singer’s testimony will therefore be denied.
C. Plaintiffs’ Motion to Exclude Dennis Carlton’s Testimony [631]
Plaintiffs have' filed a motion to exclude each of the three opinions offered by Dennis Carlton, Delta’s’expert economist. The Court will address each in turn.
1. Antitrust Policy
Carlton first opines that even if Delta did rely on AirTran’s public. statement in deciding to impose a first-bag fee, there are “good economic reasons why Delta should not be held liable for acting upon, publicly-available information to maximize its profits.” [631-2] at ¶ 5. Specifically, Carlton explains that “[a] pro-competitive antitrust policy should allow companies, to act upon public information” in order to vindicate “the goals of antitrust policy,” avoid “uncertainty for companies,” and ultimately increase consumer welfare. Id. The Court agrees with Plaintiffs that this opinion is not admissible.
It is well settled that an expert may not “merely tell the jury what result to reach.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). Thus, while an expert may testify about whether certain conduct is or is not indicative of collusion, an expert may not testify that certain conduct did or did not violate the law, In re Titanium Dioxide Antitrust Litig., No. RDB-10-0318, 2013 WL 1855980, at *4 (D. Md. May 1, 2013).
[E]xpert testimony that usurps either the role of the trial judge in instructing the- jury as to the applicable law or the role of the jury in applying that law to the facts before it by definition does not aid the jury in making a decision; rather, it undertakes to tell the'jury what result to reach, and thus attempts to substitute the expert’s judgment for the jury’s.
Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005) (internal punctuation and citation omitted).
Carlton’s. first opinion runs afoul of these bedrock principles because he plainly expresses an opinion about what conduct the antitrust laws should and should not punish. Such testimony accomplishes nothing more than telling the jury what result to reach and supplanting the Court’s instructions about the law. Moreover, .insofar as Carlton opines about antitrust law in aspirational terms, his opinion potentially encourages jury nullification by encouraging the trier of fact to make a decision based not on the law as it currently exists but as it should, in Carlton’s opinion, be applied by the courts. See generally Specht v. Jensen, 853 F.2d 805, 810 (10th Cir. 1988) (“[WJhen the purpose of [expert] testimony is to direct the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed.’’).Thus, Carlton’s first opinion will be excluded.
2. Inevitability of Delta’s Bag-Fee Decision
Second, Carlton opines that given the trend in the industry toward charging first-bag fees in 2008, “Delta very likely would have implemented the first-bag fee even in the absence of information about AirTran’s willingness to implement a first-bag fee.” [631-2] at ¶ 5. Plaintiffs contend that this opinion is unreliable and does not fit the facts of this case, but the Court concludes that the arguments raised by Plaintiffs—much like the arguments raised by Defendants with respect to Singer— relate to the weight that Carlton’s second opinion should be given and not its admissibility.
Carlton discusses in his report several reasons for his opinion, including that “airlines have tended to adopt similar pricing models unless they can differentiate themselves with a different model.” [631-2] at ¶22. He,explains that although Southwest was able to differentiate itself as the “bags fly free” airline, “Delta believed that it could not successfully reposition itself as a no fee/low fee carrier, so it was more likely to keep a pricing model that was similar to other legacy carriers.” Id. (footnotes omitted) (citing the DOJ deposition of Delta’s president Ed Bastían). Additionally, the legacy carriers that had imposed first-bag fees had left them in place, suggesting to Delta—at least according to Carlton—that the fees were profitable. Id. at ¶ 23.
Carlton’s opinion is distinguishable from the expert opinion at issue in Cameron v. Peach County, No. 5:02-cv-41-1 (CAR), 2004 WL 5520003, at *5 (M.D. Ga. June 28, 2004), on which Plaintiffs rely. There, an expert opined about risks posed by a landfill site, but the court found that the opinion consisted of “blanket generalizations,” was premised on unsupported assumptions, and failed to account for the county’s efforts to mitigate or prevent the danger posed by the landfill. In the case at hand, by contrast, Carlton has not drawn such blanket generalizations. His reasoning, though not'impervious to cross-examination, is outlined and relies on no logical fallacies or speculative leaps of faith. Plaintiffs disagree with his conclusion, but they have pointed to nothing that warrants exclusion of this opinion. The Court will therefore deny the motion to exclude Carlton’s second opinion.
3. Delta’s Business Justifications
Finally, Carlton is of the opinion that “Delta had economically rational business justifications for implementing the first-bag fee when it did.” [631-2] at ¶ 5. Specifically, he explains that following the consummation of the Delta-Northwest merger, “it would be uneconomic to maintain separate ... fee structures ....” Id, at ¶ 25. And for the same reasons supporting his second opinion, Carlton opines that it made sense for the post-merger combined airiine to retain the first-bag fee that Northwest had already implemented. Id. at ¶ 26.
Plaintiffs assert that this opinion is inconsistent with empirical evidence showing that AirTran and. Southwest maintained separate fee structures for more than three years after their merger. Plaintiffs also contend that Carlton’s third opinion is based not on economic data but on the self-serving testimony of Delta’s executives, and that it ignores documents suggesting that Delta was planning to withdraw Northwest’s bag fee after the merger. But the AirTran/Southwest merger took place three years after Carlton issued his report, and Plaintiffs fail to explain how his opinion is rendered unreliable by failing to account for facts that had not yet occurred. Moreover, as all of Carlton’s opinions are supported by a reasonable evidentiary basis, the Court finds that his testimony is admissible. See Larson v. Kempker, 414 F.3d 936, 940 (8th Cir. 2005) (holding that expert testimony that “is so fundamentally unreliable that it can offer no assistance to the jury” must be excluded, but “otherwise, the factual basis of the testimony goes to the weight of the evidence”); Quiet Tech., 326 F.3d at 1345 (noting that the role of cross-examination is to identify flaws in otherwise reliable expert evidence). Accordingly, this opinion is likewise admissible.
In sum, the Court is persuaded by Plaintiffs’ arguments concerning Carlton’s first opinion—regarding what antitrust law should or should not prohibit—and will grant the Daubert motion as to that opinion. The motion will be denied in all other respects.
D. Plaintiffs’ Motion to Exclude Andrew Dick’s Testimony [632]
The final evidentiary motion before the Court is Plaintiffs’ motion to exclude three opinions offered by Andrew Dick, Air-Tran’s expert economist.
1. Economic Theory’s Definition of Collusion
The first opinion with which Plaintiffs take issue is Dick’s testimony regarding the manner in which economic theory defines collusion. In his deposition and his expert report, Dick opines that “the economic plausibility of [Plaintiffs’ allegations” must be evaluated with respect to economic theory’s definition of collusion, which he explains consists of “three pillars”:
One is the mutual exchange of assurances leading to an agreement or its equivalent; second is that there has to be a means to detect deviations or cheating from that ... agreement; and the third is that there has to be credible threats of punishment for deviations or cheating from the ... agreement.
[593] at 21; [632-3] at 12. For Dick to conclude that Defendants colluded in this case, he would have to see “evidence to indicate that there’s a likelihood that each of those criteria—high likelihood] that each of those criteria is met.” [593] at 22. He has seen no such evidence, id. and therefore opines in his rebuttal report that “the absence of credible mechanisms to monitor and punish defections from the alleged agreement” causes “Plaintiffs’ theory of collusion [to] fail[] as a matter of economics,” [632-4] at 2.
The Court agrees with Plaintiffs that this opinion is inadmissible, at least when it is framed in terms of preconditions to a finding of collusion. Experts may not testify as to governing legal standards or legal implications of conduct; “the court must be the jury’s only source of law.” Montgomery, 898 F.2d at 1541; see also Burkhart v. WMATA, 112 F.3d 1207, 1213 (D.C. Cir. 1997) (“Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.”). However, as noted above, an expert economist may testify that certain conduct is or is not consistent with a Ending of collusion. See, e.g., Polypropylene Carpet, 93 F.Supp.2d at 1355. Thus, although Dick may not testify that the jury may End in favor of Plaintiffs only if all three of his conditions are satisfied, he may testify to his opinion that Defendants’ conduct is inconsistent with collusion because one or more of those criteria are missing.
The Court disagrees with Plaintiffs, however, to the extent they suggest that Dick’s testimony is inadmissible because it contains internal inconsistencies. In response to a question asking him to assume that Defendants exchanged explicit mutual assurances, Dick testified that he would find collusion occurred. But that is not because mutual assurances alone are sufficient, as Plaintiffs contend, but because in an economist’s view, there is a reasonable expectation that such explicit mutual assurances contain built-in means of detecting and punishing defections. [593] at 21-24. The Court does not find Dick’s testimony in this regard inconsistent; to the extent any incongruity exists, it is more appropriately addressed on cross-examination than in a Daubert motion.
2. Effect of AirTran’s Public Statements
In Dick’s report, he analyzes and tests Singer’s prisoner’s dilemma model in light of the “cheap talk” framework in economic literature, which views one company’s non-binding forward-looking statements as insufficient to influence a competitor’s strategic choices and facilitate reaching an agreement unless those statements are both self-signaling and self-committing. See [632-3] at ¶¶ 116-121. Disagreeing with Singer’s conclusions, Dick opines that under this paradigm “Delta would ... rationally ignore AirTran’s [October 23, 2008 earnings call] announcement as being unreliable.” Id. at ¶ 120.
Plaintiffs reject Dick’s reliance on the “cheap talk” paradigm, which some economists—including Delta’s expert Dennis Carlton—have rejected. But other economists embrace the technique. See [632-3] at ¶¶ 115-16 & accompanying footnote citations. To pass muster under Daubert and Rule 702, an expert’s methods must be reliable, but they need not be universal. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (“The eviden-tiary requirement of reliability is lower than the merits standard of correctness .... The grounds for the expert’s opinion merely have to be good, they do not have to be perfect.”); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295, 332 (D. Vt. 2007) (“Daubert requires general, not universal acceptance; even substantial criticism as to one theory or procedure will not be enough to find that the theory/procedure is not generally accepted.”) (internal punctuation omitted); United States v. Monteiro, 407 F.Supp.2d 351, 366 (D. Mass. 2006) (“Daubert and Kumho Tire do not make the perfect the enemy of the reliable; an expert need not use the best method of evaluation, only a reliable one.”). The “cheap talk” paradigm is not without its critics, but the Court is not persuaded that it is so unfounded as to render Dick’s opinion unreliable.
Plaintiffs also take issue with Dick’s application of the cheap-talk paradigm to Singer’s analysis, arguing that Dick ignores evidence that AirTran intended to use its earnings call to send a signal to Delta about AirTran’s willingness to collude. Additionally, they suggest that Dick’s opinion is unhelpful because-this case is about what Delta actually did, not about what it rationally might have done. But as is true of many of the arguments raised in both parties’ Daubert motions, these issues speak to the weight of Dick’s opinions, not their admissibility. The factual predicates on which his opinion rests find support in the record, and the challenged opinion is relevant to—even if not dispositive of—-the question of Defendants’ self-interests and incentives. Moreover, because the challenged opinion serves to test Singer’s own paradigm, the Court finds that the concerns Plaintiffs raise are best addressed through cross-examination. The Court therefore finds that this opinion is admissible.
3. Disputed Factual Issues
Finally, Plaintiffs seek 't'o prevent Dick from offering five opinions that Plaintiffs characterize as disputed factual issues unrelated to his economic expertise. Again, the Court disagrees.
The Court’s decision above that Dick’s methods are reliable renders moot Plaintiffs’ argument that some, of the factual assertions in his report, are not supported by “any reliable economic test” and.ignore portions of the record. [632-1] at 16, Other factual assertions Plaintiffs point to in Dick’s report—for example, his reference to the need to harmonize a fee structure for Delta and Northwest in view of their impending merger—are nothing more than Dick’s explanation of the factual foundations on which his opinions rest. As discussed above, an expert’s opinion is admissible if the facts upon which it is premised “find some support ... in the record,” even where the opposing party contends that those assumptions are contradicted by other evidence. McLean, 224 F.3d at 800-01.
In still other instances, Dick relies on testimony and other evidence from this case to apply or explain the general economic principles discussed in his report. For example, after explaining how unbun-dling can stimulate passenger demand, Dick relies on Healy’s deposition testimony to illustrate how, in his opinion, AirTran’s introduction of a first-bag fee might have facilitated the air line’s route expansion. [632-3] at ¶ 138, Elsewhere, he relies on Fornaro’s deposition testimony as an example comporting with the concept of the “signal-to-noise” ratio. Id. at ¶ 42 & n.33. As Plaintiffs pointed out in defense of Singer’s expert report, it is permissible for an expert “to review the factual record and formulate a hypothesis that can then be tested using economic theory.” Processed Egg Prods., 81 F.Supp.3d at 424. Indeed, Singer’s amended merits report takes a similar approach: after giving his opinion that Defendants’ actions were inconsistent with unilateral conduct, he “demonstrate^] how this analysis is supported and corroborated by direct evidence.” [556-1] at 1565.
Just as. the Court declined to exclude Singer’s opinions because he relied on facts that Defendants dispute, it declines to exclude Dick’s opinions.because he relies on facts that Plaintiffs dispute. None of the expert witnesses in this case has relied on facts that are so lacking in evi-dentiary support that it renders the ensuing opinions unreliable.
For these reasons, the Court will disregard Dick’s legal conclusion that Plaintiffs’ theory fails under, economic theory’s definition- of collusion, but it will deny the remainder of Plaintiffs’ motion to exclude Dick’s opinions and testimony.
III. Defendants’ Motions for Summary Judgment
A. Summary Judgment in the Context of § 1 Price-Fixing Claims
Summary judgment is appropriate only when “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.” Fed, R. Civ. P. 56(a). There is a “genuine” dispute as to a material fact if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When analyzing a motion for summary judgment, the Court must “view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997); Williamson Oil, 346 F.3d at 1298.
These general principles are well settled and apply with as much force to this antitrust case as any other type of lawsuit. In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 396 (3d Cir. 2015) (“[T]he summary judgment standard in antitrust cases is generally no different from the standard in other cases.”); see also Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (noting that there is no “special burden on plaintiffs facing summary judgment in antitrust cases”). However, “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); see also Holiday Wholesale, 231 F.Supp.2d at 1269 (“[T]he inferences that can be drawn on summary judgment are limited in the antitrust context.”).
This inferential limitation is grounded in the unique nature of the law of antitrust conspiracy.... [A] Sherman Act conspiracy differs sharply from the more typical concept of conspiracy found in other contexts. Under the criminal drug laws, for example, both the underlying act and the conspiracy are illegal—that is, the laws make it an offense for anyone to violate, as well as conspire to violate, the federal drug statutes. In contrast, under the Sherman Act, it is the conspiracy alone that is prohibited; the underlying independent conduct is not necessarily unlawful and, indeed, may be precompetitive and of a nature that the antitrust laws would want to foster....
Coleman v. Cannon Oil Co., 849 F.Supp. 1458, 1465 (M.D. Ala. 1993) (internal citation omitted).
Along those lines,