Animal Science Products, Inc. v. China Minmetals Corp. (34 F. Supp. 3d 465, 2014)

United States District Court for the District of New Jersey 2014-07-24

Commerce and Trade Arbitration

Citations

Full opinion text

OPINION

McNULTY, District Judge.

TABLE OF CONTENTS

TABLES OF PARTIES, CLAIMS AND MOTIONS.473

INTRODUCTION.474

I. Procedural History.475

II. Factual Background .477

A. Plaintiffs.477

B. Defendants.478

C. Summary of the Claims.:.479

III. Legal Standards. 00 ^

A. Sherman Act... 00 ^8

B. Clayton Act. 00 T#

C. Motion to Dismiss. 00 'rti

1. Rule 12(b)(6) standards in general. 00

2. Dismissal based on lack of antitrust standing 00

3. Dismissal based on Foreign Trade Antitrust Improvements Act (“FTAIA”). LG 00

D. Motion to Compel Arbitration 00

IV. Discussion. 488

Failure to State a Claim-Injury, Antitrust Standing and the Direct Purchaser Rule. its* CD

1. Antitrust standing in general. O

2 .Antitrust injury and causation. ^

3. Antitrust purchaser standing. 05

a. Statutory standing and the appropriate plaintiff. ^ Ci

b. The direct purchaser requirement as a bright-line standing in 3 =>

4. Analysis of Resco’s direct purchaser standing.502

a. Class members’ standing not attributable to Resco.502

b. Direct purchases from Defendants. 503

c. Direct purchases from Chinese “co-conspirators” .504

d. Resco’s acquisition of Worldwide Refractories.507

e. Assignment of claims from Possehl to Resco.508

i. The face of the complaint and the assignment_.■.508

ii. Allegations in other pleadings .513

5. Dismissal with or without prejudice.515

Motion to Compel Arbitration .516

Motions to Dismiss under the FTAIA.521

524 CONCLUSION

“Co-conspirators” (identified in Complaint but not named as Defendants)

Shangawa Rongyuan Refractories Co., Ltd. Yingkou Sanhua Refractory Materials Co., Ltd. Shenyang Metals and Minerals CITIC Trading.

Motions_Brought on behalf of_

Motion to Dismiss The Sinosteel Defendants: Sinosteel Corporation, Sinosteel

(Docket No. 98) Trading Company, and Liaoning Jiayi Metals & Minerals _Co, Ltd._

Motion to Dismiss The Minmetals Defendants: China Minmetals Corp. and China

(Docket No. 99)_National Minerals Import.and Export Corp._

Motion to Compel Arbi- The Minmetals, Sinosteel, and Haicheng Defendants (collectively, tration (Docket No. 37) the “Seven Defendants”): China Minmetals Corp., China National Minerals Import and Export Corp., Sinosteel Corporation, Sinosteel Trading Company, Liaoning Jiayi Metals 85 Minerals Co, Ltd., Haicheng Houying Corp., Ltd., and Haicheng Huayu Group Import 85 Export Co. Ltd.

INTRODUCTION

Plaintiffs seek to represent a putative class of U.S. purchasers of magnesite. They allege that sixteen Chinese corporations have conspired to fix prices and control the supply of magnesite and magnesite products exported to the United States. As a result, they say, magnesite prices have remained above market levels since at least April 2000. Defendants’ cartel is alleged to constitute a per se violation of § 1 of the Sherman Act. Plaintiff Resco Products, Inc., contends that it and similarly situated direct purchasers suffered damages amounting to $58.9 million, trebled pursuant to § 4 of the Clayton Act. Plaintiff Animal Science Products, Inc., on behalf of indirect purchasers, seeks injunc-tive relief pursuant to § 16 of the Clayton Act.

This matter had a protracted history in this Court, interrupted by a reversal and remand by the Court of Appeals, before it was reassigned to me in August 2012. Currently before me are (1) two motions to dismiss the amended complaint for failure to state a claim, and (2) a motion to compel arbitration. I here find that Plaintiff Res-co has not plausibly pleaded facts sufficient to establish its antitrust standing as a direct purchaser. Consequently, I will grant the motions to dismiss the Amended Complaint, without prejudice.

In light of that dismissal, I will not now determine whether the U.S. antitrust laws apply to Defendants’ alleged foreign anti-competitive activity under the Foreign Trade Antitrust Improvements Act. I do briefly discuss that issue to provide guidance in the event that Plaintiffs file a Second Amended Complaint. Likewise, on the current state of the record, I cannot find that Plaintiffs must arbitrate their claims against Defendants, but again I discuss the issue briefly, in anticipation of a possible amended pleading.

Many of the defects in the Amended Complaint trace back to the antitrust standing requirement that the plaintiff (or the entity from which plaintiff obtained its claims by assignment) be a direct purchaser. The Complaint alleges direct purchases by an assignor, Possehl (US), but it does so in self-contradictory terms, and without supporting facts (such as, for example, the identification of even a single concrete purchase). It should be possible in a subsequent amended pleading to identify such purchase/sale transactions, and the agreements under which they were made. If that is done, the Court may determine whether Possehl (US) was a direct purchaser. The Court may also then ascertain whether such agreements contained arbitration clauses. (Defendants have made a suggestive demonstration that certain related agreements did contain such clauses.) Any subsequent pleading should also furnish a specific factual basis to assess the applicability of the “import exception” or the “effects exception” of the FTAIA. The relevant facts are, or should be, available to Plaintiffs, and they must be pleaded before I will permit this complex and expensive litigation to proceed.

I. Procedural History

The original complaint, filed on September 7, 2005, see ECF No. 1, named as Defendants sixteen Chinese entities. It also named one U.S. subsidiary, Minme-tals, Inc. (“Minmetals USA”), alleged to be a New Jersey corporation with its principal place of business in Bergen County. Id. ¶ 10. After Defendants failed to answer the complaint or move to dismiss, in May 2007 the Clerk of Court began making entries of default for failure to appear against the Chinese Defendants. On December 14, 2007, Plaintiffs moved for Default Judgment. See Motion for Default Judgment as to Defaulting Defendants, Dec. 14, 2007, ECF No. 28 (MDJ, 28). Also on December 14, 2007, Defendant Minmetals USA moved to dismiss the Complaint. See ECF No. 27. Several of the defaulting Chinese Defendants responded to Plaintiffs’ Motion for Default Judgment. Relying on facts presented in Plaintiffs’ moving papers, seven of the Chinese Defendants (collectively, the “Seven Defendants”) filed a Motion to Compel Arbitration. See Motion of Seven Defendants to Compel Arbitration, Feb. 5, 2008, ECF No. 37 (“MTCA, 87”). Those Seven Defendants comprise the following: China Minmetals Corp., China Natl. Minerals Co., (together the “Minmetals Defendants”), Sinosteel Corp., China Metallurgical Import & Export Corp. (subsequently renamed Sinosteel Trading Company), Liaoning Jiayi Metals & Minerals Co., Ltd., (together, the “Sinosteel Defendants”), Haicheng Houying Corp., Ltd., and Haicheng Huayu Group Import & Export Co. Ltd. (Huaziyu), (together, the “Haieheng Defendants”).

In September 2008, the case was reassigned to Chief Judge Garrett E. Brown, Jr. In October 2008, Judge Brown heard oral argument on the three pending motions (Minmetals’ Motion to Dismiss, Plaintiffs’ Motion for Default Judgment and the Seven Defendants’ Motion to Compel Arbitration). See ECF No. 72; docket entry dated October 6, 2008. In December 2008, Judge Brown terminated without prejudice the three pending motions and dismissed the original complaint. ECF No. 74. The grounds for dismissal, raised sua sponte by the Court, were that the Court lacked subject matter jurisdiction to adjudicate the dispute pursuant to the Foreign Trade Antitrust Improvements Act. See Animal Science Prods., Inc. v. China Nat’l Metals & Minerals Imp. & Exp. Corp., 596 F.Supp.2d 842 (D.N.J.2008).

On March 30, 2009, Plaintiffs filed an Amended Complaint, ECF No. 77 (cited as “AC.” Herein, “Amended Complaint” and “Complaint,” unless specified otherwise, are used interchangeably to refer to the amended complaint.) That Amended Complaint included more specific allegations and proofs to support the antitrust allegations, as instructed by the District Court. See Animal Science Prods., Inc., 596 F.Supp.2d at 881. A motion to dismiss the Amended Complaint was then filed by two groups of Defendants, the Minmetals Defendants and the Sinosteel Defendants. See Motion to Dismiss by Sinosteel Defendants, June 26, 2009, ECF No. 98 (“Sinos-teel MTD, 98”); Motion to Dismiss by Minmetals Defendants, June 26, 2009, ECF No. 99 (“Minmetals MTD, 99”).

In a 220-page opinion issued in April 2010, the district court engaged in comprehensive fact-finding, determined that the FTAIA deprived it of subject matter jurisdiction, and dismissed the Amended Complaint. See Animal Science Prods. Inc. v. China Nat’l Metals & Minerals Imp. & Exp. Corp., 702 F.Supp.2d 320 (D.N.J.2010); ECF Nos. 112, 113. Plaintiffs appealed.

Noting that it was overturning existing precedent, the United States Court of Appeals for the Third Circuit held that the FTAIA imposed substantive limits on antitrust claims, but did not raise a jurisdictional bar. It vacated Judge Brown’s decision and remanded the case. See Animal Science Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 467-68 (3d Cir.2011); ECF Nos. 118-119. In December 2011 the case was reinstated and assigned to Judge Salas. In January 2012, Judge Salas administratively terminated the case pending the outcome of Defendants’ petitions to the Supreme Court for a writ of certiorari. ECF No. 127. The cert petitions of the Minmetals Defendants and the Sinosteel Defendants were denied in 2012. See China Minmetals Corp. v. Animal Sci. Products, Inc., — U.S. -, 132 S.Ct. 1744, 182 L.Ed.2d 530 (2012) and Sinosteel Corp. v. Animal Sci. Products, Inc., — U.S. -, 132 S.Ct. 1744, - L.Ed.2d -(2012).

In April 2012, Judge Salas reopened the case. She stated that she would consider first the Seven Defendants’ Motion to Compel Arbitration. ECF No. 131. On that Motion Judge Salas permitted supplemental briefing, which proceeded through the summer. See ECF Nos. 133-142.

Meanwhile, on August 1, 2012, the case was reassigned to me. ECF No. 144. Currently before me are the Motions of the Sinosteel Defendants and the Minme-tals Defendants to Dismiss the Amended Complaint, on remand from the Court of Appeals, as well as the 2008 Motion of Seven Defendants to Compel Arbitration, as supplemented on remand. Because it is inextricably intertwined with the merits of those motions, I am raising and considering sua sponte the issue of Plaintiffs’ statutory standing to bring this antitrust action. Plaintiffs’ antitrust standing was raised and addressed in the Parties’ briefs in connection with the Motion to Compel Arbitration.

In fairness to the parties, who may have limited the scope of their briefing in response to Judge Salas’s limitation of the issues, I sua. sponte invited supplemental briefing on that antitrust standing issue. On September 9, 2013, both sides filed supplemental briefs on antitrust standing. ECF Nos. 155,156.

II. Factual Background

A. Plaintiffs

Plaintiffs’ pleadings provide little information about the putative class representatives. Plaintiff Animal Science Products (“ASP”), said to represent “indirect purchasers,” is a “Texas corporation with its principal place of business in Nacogdoches, Texas.” AC ¶ 10. The Declaration of Animal Science Products submitted in Support of its Motion for Default Judgment, December 14, 2007, ECF No. 28-3 (“ASP Decl. MDJ, 28-3”) states that “Animal Science Products manufactures and distributes feed additives and packaged goods. We serve all facets of the feed industry with feed additives, micro ingredients, and premixes, as well as the poultry and swine packaged goods markets. Since 2000, we have purchased magnesite in the form of magnesium oxide produced and sold by defendants, which we use in several of our products.” Id. ¶¶ 5-6.

Plaintiff Resco Products, Inc. (“Resco”), the putative class representative for “direct purchasers,” is a “Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania.” AC ¶ 11. In a certification, Resco provides the only description of its business: “In March 2006, Resco purchased Worldwide Refractories, Inc .... [which] manufactures refractory materials. It offers basic products for the steel and cement industries. The company manufactures both dolomite and magnesite-enriched dolomitic bricks, rams, and mixes.” Certification of Resco Products, Inc. in Support of its Motion for Default Judgment, Class Damages, and In-junctive Relief, December 14, 2007, ECF No. 28-4 (“Resco Cert. MDJ, 28-4”).

Resco’s Certification also explains that it “purchases magnesite from China principally through brokers,” and names one such broker as Possehl, Inc. (“Possehl (US)”) Id. ¶¶ 7-8. The Complaint, too, refers to Possehl, Inc.,, which allegedly “has assigned to Resco its rights, title, and interest in and to all causes of action it may have relating to magnesite products brokered by Possehl, Inc. and subsequently delivered to Resco during the relevant period. Possehl, Inc. purchased magnesite and magnesite products directly from defendants during the class period and shipped those products to Resco.” AC ¶ 11. Thus, Resco’s rights apparently are alleged to arise by virtue of an assignment from Possehl (US). Possehl (US), however, is not a party to the action and Plaintiffs’ pleadings provide no further information about Possehl (US).

B. Defendants

As noted above, the Amended Complaint names sixteen Chinese entities as Defendants, but only the “Seven Defendants” (comprising the Minmetals Defendants, the Sinosteel Defendants, and the Hai-cheng Defendants), have responded to the Complaint. I therefore focus on them.

Plaintiffs allege that the Minmetals Defendants are Chinese state-owned trading companies based in Bejing. AC ¶ 12. China Minmetals is alleged to be “a conglomerate that includes the trading of metals and minerals” and “conducts business with and through its wholly owned subsidiary and North American Headquarters, China Minmetals U.S.A., Inc., which maintains its principal place of business in Leo-nia, Bergen County, New Jersey.” China National Minerals Import and Export Co. is alleged to be “a subsidiary and affiliate of China Minmetals.” Id. ¶ 13. The Min-metals Defendants are movants in the Motion to Compel Arbitration, see MTCA, 37, and have moved to dismiss the Amended Complaint, see Minmetals MTD, 99.

Plaintiffs allege that Sinosteel Corp. “is a direct or indirectly state-owned multinational conglomerate that includes metals and minerals production and trading.” AC ¶ 18. Sinosteel Trading Company (“Sinos-teel Trading”) (f/k/a China Metallurgical Import & Export Corp.), is alleged to be a “wholly-owned subsidiary of Sinosteel Corp.,” id. ¶ 19, while Liaoning Jiayi Metals & Minerals Co., Ltd., (“Liaoning Jiayi”) is alleged to be “not state-owned.” Id. ¶20. The Sinosteel Defendants are mov-ants in the Motion to Compel Arbitration, see MTCA, 37, and have moved to dismiss Plaintiffs’ Complaint, see Sinosteel MTD, 98.

The Complaint alleges that both of the Haicheng Defendants, Haicheng Houying Corp., Ltd., (“Haicheng Houying”) and Haicheng Huayu Group Import & Export Co. Ltd. (Huaziyu) (“Haicheng Huayu”) are “not state-owned” and are producers and exporters of magnesite. See AC ¶¶ 24-25. The Haicheng Defendants are mov-ants in the Motion to Compel Arbitration. See MTCA, 37.

The Defendants who have not answered or moved are (1) Xiyang Group, (2) Xiyang (Pacific) Import & Export Ltd. Company (“Xiyang Pacific”), (3) Xiyang Refractory Materials Ltd. Company (“Xiyang Refractory”), (4) Xiyang Fireproof Material Co. Ltd. (“Xiyang Fireproof’), (5) Liaoning Foreign Trade General Corporation (“Liaoning Trade”), (6) Liaoning Jinding Magnesite Group (“Liaoning Jinding”), (7) Dalian Golden Sun Import & Export Corp. (“Dalian Golden Sun”), (8) Haicheng Pailou Magnesite Ore Co. Ltd. (“Haicheng Pail-ou”), and (9) Yingkou Huachen (Group) Co. Ltd. (‘Yingkou Huachen”). (Collectively, they are referred to as the “Inactive Defendants”).

The Complaint alleges that Defendants’ “co-conspirators include [1] Rongyuan Magnesite Corporation of China, subsequently renamed Shangawa Rongyuan Refractories Co., Ltd., [2] Yingkou Sanhua Refractory Materials Co., Ltd., subsequently renamed Yingkou Wonjin Refractory Material Co., Ltd., [3] Shenyang Metals and Minerals, and [4] CITIC Trading.” Id. ¶ 28. The “co-conspirators,” however, are not named as defendants, and there are no specific allegations as to their acts.

C. Summary of the Claims

Plaintiffs allege that “[e]ach of these Defendants and its co-conspirators has colluded with each other to restrain competition by, among other things, setting artificial prices pursuant to illegal agreements among these competitors. These horizontal practices were designed to, and in fact did, have a substantial and adverse impact in the United States.” AC ¶ 29. Specifically, according to Plaintiffs, Defendants conspired to form two Chinese Magnesite price-fixing groups in 2000. The first, “Jiayun Magnesite Export Group” (“Jiay-un EG”) allegedly included inactive defendants Xiyang Refractory Material, Ying-kou Hachen, Dalian Golden Sun and Liaoning Foreign Trade. Id. ¶ 52. The second group, “Huaxia Magnesia Products Export Group” (“Huaxia EG”) included active Defendants Liaoning Jiayi (“Jiayi”) and Haicheng Huayu (“Huayu”) and “co-conspirators” Shenyang Metals & Minerals (“Shenyang”) and CITIC Trading (“CI-TIC”). According to Plaintiffs, Jiayun EG and Huaxia EG “collectively represented more than 70% of the export volume of magnesite in China.” Id. ¶ 54. In 2001, these two Export Groups formed “a single, unified group under the name ‘Chinese Magnesite Export Association’ ” (“CMEA”). Id. ¶ 57. Plaintiffs’ allege that CMEA “aimed to provide strict management control of all sales, production schedules of individual producers and export prices for Chinese magnesite, including exports to the United States.” Id.

The Amended Complaint then alleges that in 2003 the original CMEA Cartel conducted several meetings with the Defendants and other exporters during which the Cartel agreed that it should be established “under the name ‘China Magnesite Forum’ and established goals of restraining competition and establishing limits on export supply in order to maintain and increase prices.” Id. ¶ 59. Thereafter, between 2003 and 2007, various members of the Cartel held meetings to discuss and determine price increases “including [on] exports to the United States.” See AC ¶¶ 58-64. Specifically, Plaintiffs allege that

During the period of the charged combination and conspiracy, Defendants and their co-conspirators have participated in meetings and conversations ... in which the export prices, production, and foreign markets for mag-nesite and magnesite products were discussed and agreed upon. At their meetings, Defendants and others agreed to and did eliminate, suppress, and limit competition by, among other things:

(a) discussing the production schedules and export prices of magnesite and magnesite products including for the U.S.;

(b) agreeing to control the supply of magnesite and magnesite products for export to the U.S. and elsewhere;

(c) agreeing to increase and maintain export prices of magnesite and magnesite products to the U.S. and elsewhere[J

AC ¶ 67. As a result of Defendants’ conspiratorial activities, Plaintiffs allege, “(a) [t]he price of magnesite and magnesite products purchased by Plaintiffs (and the plaintiff classes) has been fixed, raised, maintained and stabilized at artificial and non-competitive levels;” and “(b) Competition in the sale of magnesite and magnes-ite products has been restrained.” Id. ¶ 75.

Plaintiffs maintain that the Defendants have been able to achieve these price increases despite the fact that they do not control 100 percent of the magnesite market “because the Defendant producers have the competitive advantage of lower costs than their competitors” and “because China has employed a fixed currency exchange rate which undervalues the Yuan, making Chinese exports of magnesite and magnesite products to the United States relatively less expensive” than other nations’ magnesite exports. Id. ¶ 69.

III. Legal Standards

A. Sherman Act

The Sherman Anti-Trust Act declares “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations ... to be illegal.” 15 U.S.C. § 1.

The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conductive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition. And to this end it prohibits ‘Every contract, combination or conspiracy, in restraint of trade or commerce among the several States.’ Although this prohibition is literally all-encompassing, the courts have construed it as precluding only those contracts or combinations which ‘unreasonably’ restrain competition.

Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 4-5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) (citations omitted).

“In order to sustain a cause of action under § 1 of the Sherman Act, the plaintiff must prove: (1) that the defendants contracted, combined, or conspired among each other; (2) that the combination or conspiracy produced adverse, anti-competitive effects within relevant product and geographic markets; (3) that the objects of and the conduct pursuant to that contract or conspiracy were illegal; and (4) that the plaintiff was injured as a proximate result of that conspiracy.” Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81-82 (3d Cir.1977). Accord Howard Hess Dental Laboratories Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 253 (3d Cir.2010) (“A plaintiff asserting a Section 1 claim ... must allege four elements: “(1) concerted action by the defendants; that produced anti-competitive effects within the relevant product and geographic markets; (3) that the concerted actions were illegal; and (4) that it was injured as a proximate result of the concerted action.” ”) (citing Gordon v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir.2005)); cf. Franco v. Connecticut Gen. Life Ins. Co., 818 F.Supp.2d 792, 829 (D.N.J.2011) (“Pleading a colorable Sherman Act section 1 claim requires a plaintiff to allege (1) an agreement (2) imposing an unreasonable restraint of trade within a relevant product market and (3) resulting in antitrust injury, that is “injury of the type the antitrust laws were intended to prevent and ... that flows from that which make defendants’ acts unlawful.” ”).

“The existence of an agreement is the hallmark of a Section 1 claim. Liability is necessarily based on some form of concerted action.... The agreement, of course, must pertain to some unlawful conduct within the meaning of the antitrust laws. To establish liability under section 1, a plaintiff must demonstrate that the challenged practice imposed an unreasonable restraint on trade. The illegality of the restraint may be demonstrated in one of two ways: under the per se standard or under a rule of reason analysis.” Franco,-818 F.Supp.2d at 829-30 (D.N.J.2011) (internal citations and quotations omitted). “While the rule of reason typically mandates an elaborate inquiry into the reasonableness of a challenged business practice, there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable. Such plainly anticompetitive agreements or practices are deemed to be illegal per se.” United States v. Brown Univ. in Providence in State of R.I., 5 F.3d 658, 669 (3d Cir.1993) (internal quotations and citations omitted). Accord In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 316 (3d Cir.2010) (“Judicial experience has shown that some classes of restraints have redeeming competitive benefits so rarely that their condemnation does not require application of the full-fledged rule of reason.... Once a practice has been found to fall into one of these classes, it is subject to a ‘per se’ standard.”) The types of “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use ... are price fixing, division of markets, group boycotts, and tying arrangements.” N. Pac. Ry. Co., 356 U.S. at 5, 78 S.Ct. 514 (1958). Accord Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 345, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982); Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 830 (3d Cir.2010) (“Some categories of restraints, such as horizontal price-fixing and market allocation agreements among competitors, ‘because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.’ ”) (quoting Brown Univ. in Providence in State of R.I., 5 F.3d at 669); In re Ins. Brokerage, 618 F.3d at 316 (“Paradigmatic examples [of per se illegal restraints] are ‘horizontal agreements among competitors to fix prices or to divide markets.’ ”) (quoting Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)).

B. Clayton Act

Section 4 of the Clayton Act, 15 U.S.C. § 15, provides “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Thus, § 4 broadly defines “the class of persons who may maintain a private damage action under the antitrust laws,” and “a literal reading of the statute is broad enough to en.compass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation.” Associated Gen eral Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 529, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (“AGC”). Accord Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 80 (3d Cir.2011) (“Section 4 of the Clayton Act ... provides a private right of action for ‘any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.”) (quoting 15 U.S.C § 15(a)).

Federal courts have long recognized that, despite its expansive language, the Clayton Act’s damages remedy is not limitless. As the Supreme Court observed:

the lower federal courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.... An antitrust violation may be expected to cause ripples of harm to flow through the Nation’s economy; but despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable. It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property.

AGC, 459 U.S. at 534-535,' 103 S.Ct. 897 (internal quotations and citations omitted). Cf. Blue Shield of Virginia v. McCready, 457 U.S. 465, 477, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (“the unrestrictive language of the section, and the avowed breadth of the congressional purpose, cautions us not to cabin § 4 in ways that will defeat its broad remedial objective. But the potency of the remedy implies the need for some care in its application.”).

As discussed in detail below, see infra § IV.A, there is no precise formula for triggering the Clayton Act’s treble damages remedy. In general, however, an antitrust plaintiff must establish that its injuries are not “too remote from the violation and the purposes of the antitrust laws to form the predicate for a suit under § 4.” McCready, 457 U.S. at 477, 102 S.Ct. 2540. See also Alberta Gas Chemicals Ltd. v. E.I. Du Pont De Nemours & Co., 826 F.2d 1235, 1240 (3d Cir.1987) (“Clayton Act deterrence through compensatory provisions is aimed toward the directly harmful effects of an antitrust transgression. The statutory sanctions do not constitute a broad restitutionary scheme for injuries not closely related to the violation but caused by other effects, desirable or not, of the illegal conduct.”).

The Clayton Act also grants private plaintiffs a cause of action for injunc-tive relief against anti-competitive activity. “Under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U.S.C. § 26, private parties ‘threatened [with] loss or damage by a violation of the antitrust laws’ may seek injunctive relief.” Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 105, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986). Plaintiffs seeking injunctive relief face a lower burden than those seeking treble damages pursuant to § 4.

[Section] 4 requires a plaintiff to show actual injury, but § 16 requires a showing only of “threatened” loss or damage; similarly, § 4 requires a showing of injury to “business or property,” ... while § 16 contains no such limitation. Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both § 16 and § 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent.

Id. at 111, 107 S.Ct. 484 (internal citation omitted).

C. Motion to Dismiss

1. Rule 12(b)(6) standards in general

On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the nonmov-ing party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotations omitted). Accord In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 528-29 (D.N.J.2004) (“While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations.”) (citing Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977)). In order to raise a right to relief above a speculative level, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Accord Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (internal citations and quotations omitted) (“stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”).

This now familiar standard, enunciated in Twombly (itself an antitrust case) and developed by Iqbal, has long been required of antitrust pleadings. While “there is no heightened pleading standard in antitrust cases, and the general principles governing Rule 12(b)(6) motions apply,” an antitrust plaintiff must “plead his complaint with particularity; a complaint, or counterclaim containing only conclusory recitations of law is insufficient to survive a motion to dismiss.” In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 529 (D.N.J.2004) (emphasis, internal quotations, and citations omitted). Accord AGC, 459 U.S. at 526,103 S.Ct. 897 (“As the case comes to us, we must assume that the [plaintiff] can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.”).

The Third Circuit has given full scope to the Twombly standard:

We -must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint. In order to withstand a motion to dismiss, a complaint’s factual allegations must be enough to raise a right to relief above the speculative level. This requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. On the contrary, a court is not required to accept legal conclusions alleged in the complaint. The pleading must contain sufficient factual allegations so as to state a facially plausible claim for relief. A claim possesses such plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents.

Mayer v. Belichick, 605 F.3d 223, 229-30 (3d Cir.2010) (internal citations, quotations, and punctuation omitted).

The Third Circuit has usefully distilled the Rule 12(b)(6) analysis to three steps:

To determine whether a complaint meets the pleading standard, our analysis unfolds in three steps. First, we outline the elements a plaintiff must plead to a state a claim for relief. See [Iqbal, 556 U.S.] at 675, 129 S.Ct. 1937; Argueta [v U.S. Immigration and Customs Enforcement ], 643 F.3d [60,] 73 [3d Cir.2011]. Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937; Argueta, 643 F.3d at 73. Finally, we look for well-pled factual allegations, assume their veracity, and then “determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937; Argueta, 643 F.3d at 73. This last step is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.2012).

2. Dismissal based on lack of antitrust standing

“Statutory [antitrust] standing is distinct from jurisdictional standing in that Article III standing is required to establish a justiciable case or controversy within the jurisdiction of the federal courts, whereas lack of antitrust standing affects a plaintiffs ability to recover, but does not implicate the subject matter jurisdiction of the court. Accordingly, statutory standing is simply another element of proof for an antitrust claim, rather than a predicate for asserting a claim in the first place.” Sullivan v. DB Investments, Inc., 667 F.3d 273, 307 (3d Cir.2011) (internal citations and quotations omitted). Accord Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 232 n. 15 (3d Cir.2013) (“failure to establish antitrust standing is a merits issue”). Still, statutory standing is a threshold issue:

[BJecause the remoteness doctrine is not jurisdictional in the sense that Article III standing is — if there is no Article III standing, the court is obliged to dismiss the suit even if the standing issue has not been raised — it may seem that it can be waived or forfeited just like any other nonjurisdictional defense to a suit. But nonconstitutional lack of standing belongs to an intermediate class of eases in which a court can notice an error and reverse on the basis of it even though no party has noticed it and the error is not jurisdictional, at least in the conventional sense.

MainStreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742, 747 (7th Cir.2007) [14,15] “Because the court (and not a jury) decides standing, the district court must decide issues of fact necessary to make the standing determination.” In re ATM Fee Antitrust Litig., 686 F.3d 741, 747 (9th Cir.2012) (citing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)). We are, however, at the pleading stage. At this stage, questions of statutory standing, like other factual issues, are considered under the same pleading requirements as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d Cir.2011) (“A dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim.”); NicSand, Inc. v. 3M Co., 507 F.3d 442, 449 (6th Cir.2007) (“antitrust standing and Article III standing are not one and the same, and we not only may— but we must — reject claims under Rule 12(b)(6) when antitrust standing is missing”).

3. Dismissal based on Foreign Trade Antitrust Improvements Act (“FTAd A”)

The Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6(a), addresses “conduct involving trade or commerce with foreign nations” by limiting the applicability of the Sherman Act (sections 1-7) only to alleged foreign antitrust conduct involving (1) import trade or import commerce, or (2) conduct having a “direct, substantial, and reasonably foreseeable effect” on domestic commerce. Animal Sci. Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 467-68 (3d Cir.2011) (as amended Oct. 7, 2011), cert. denied, — U.S. -, 132 S.Ct. 1744, 182 L.Ed.2d 530 (2012) (“ASP v. CMC”).

The pertinent portion of the FTAIA provides:

Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless-

(1) such conduct has a direct, substantial, and reasonably foreseeable effect-

(A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or

(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and

(2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section.

If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States.

15 U.S.C. § 6a.

The Third Circuit has described the statute as “inelegantly phrased,” and referred to its “convoluted language.” ASP v. CMC, 654 F.3d at 465 (quoting Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 (3d Cir.2002)). Be that as it may, ASP v. CMC has now provided clear guidance as to the FTAIA’s character, scope, and applicable standard of review.

Parsing the statutory language, the Court of Appeals first explained the mechanics and scope of FTAIA:

The FTAIA first limits the reach of the U.S. antitrust laws by articulating a general rule that the Sherman Act “shall not apply to conduct involving trade or commerce ... with foreign nations.” The FTAIA then creates two distinct exceptions that restore the authority of the Sherman Act. First, the FTAIA provides that it does not apply (and thus that the Sherman Act does apply) if the defendants were involved in “import trade or import commerce” (the “import trade or commerce” exception). Second, the FTAIA’s bar is inapplicable if the defendants’ “conduct has a direct, substantial, and reasonably foreseeable effect” on domestic commerce, import commerce, or certain export commerce and that conduct “gives rise” to a Sherman Act claim (the “effects” exception).

Id. at 466 (citing Turicentro, 303 F.3d at 298-306 (discussing the FTAIA, the import trade or commerce exception, and the effects exception); Carpet Group Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 71-73 (3d Cir.2000) (discussing the FTAIA and the import trade or commerce exception)).

Second, the Court held that the FTAIA is a substantive component of antitrust claims; it is not a jurisdictional bar. See id. at 466-469. Accord Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 853 (7th Cir.2012) (“the FTAIA relates to the merits of a claim, rather than the subject-matter jurisdiction of the court”); cf. In re Vitamin C Antitrust Litig., 904 F.Supp.2d 310, 315 (E.D.N.Y.2012) (noting that “[a] line of recent Supreme Court cases has emphasized that questions about a statute’s reach are merits issues, not issues of subject matter jurisdiction,” citing Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) and Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006), and observing that “[s]ince Morrison, ... the Second Circuit has not opined on whether the FTAIA is jurisdictional.”).

Third, the FTAIA’s substantive nature implies that motions to dismiss pursuant to the FTAIA “must be decided pursuant to the procedural framework that governs a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, rather than a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).” ASP v. CMC, 654 F.3d at 469. The Court pointed out “just two of the significant differences” between these two standards and suggested how they might play out on remand:

First, the burden in a Rule 12(b)(1) motion rests with the plaintiff, who must establish that there is subject matter jurisdiction; by contrast, the defendant carries the burden in a Rule 12(b)(6) motion. Accordingly, the burden on remand would no longer rest with the plaintiffs, but with the defendants. Second, while a court generally looks only to the face of the plaintiffs complaint, must accept all alleged facts to be true, and is not permitted to make independent findings of fact when deciding a Rule 12(b)(6) motion, a court may examine evidence and resolve factual disputes on a Rule 12(b)(1) motion.... It would therefore be inappropriate for the District Court, on remand, to assess independently the credibility of allegations asserted by plaintiffs expert witness.

Id. at n. 9 (internal citation omitted).

Accordingly, the framework for my consideration of the motions to dismiss will be a Rule 12(b)(6) standard.

D. Motion to Compel Arbitration

This Circuit’s case law has meandered somewhat in defining the proper standard of review of a motion to compel arbitration. The upshot, however, is fairly clear. Where the issue can be decided without evidence, it will be, based on an application of the familiar Rule 12(b)(6) standard to the face of the pleadings. Failing that, however, the Court will permit discovery and decide the issue on a summary judgment standard, pursuant to Rule 56. If there is a genuine issue of fact, summary judgment will be denied and the issues will be tried.

Because arbitration is a “matter of contract” between two parties, “a judicial mandate to arbitrate must be predicated upon the parties’ consent.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 771 (3d Cir.2013) (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir.1980)). Pursuant to the Federal Arbitration Act (“FAA”), a court may enforce a contract to arbitrate, but only if the court is satisfied that the “making of the agreement” to arbitrate is not “in issue.” Id.

In Guidotti v. Legal Helpers Debt Resolution, the Third Circuit stated the approach a court must take on a motion to compel arbitration. The judiciary must balance the competing goals of the FAA: the speedy and efficient resolution of disputes, and the enforcement of private agreements. Id. at 773. Reconciling sometimes murky precedent in light of those competing interests, the Guidotti court reasoned that where “the affirmative defense of arbitrability of claims is apparent on the face of a complaint (or ... documents relied upon in the complaint), ... the FAA would favor resolving a motion to compel arbitration under a motion to dismiss standard without the inherent delay of discovery.” Id. at 773-74. Such an approach “appropriately fosters the FAA’s interest in speedy dispute resolution. In those circumstances, ‘[t]he question to be answered ... becomes whether the assertions of the complaint, given the required broad sweep, would permit ad-duction of proofs that would provide a recognized legal basis’ for rejecting the affirmative defense.” Id. at 774 (quoting Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir.1979)).

“In many cases, however, a more deliberate pace is required, in light of both the FAA’s insistence that private agreements be honored and the judicial responsibility to interpret the parties’ agreement, if any, to arbitrate.” Id.

[The Rule 12(b)(6) standard will not be appropriate] when either the motion to compel arbitration does not have as its predicate a complaint with the requisite clarity to establish on its face that the parties agreed to arbitrate or the opposing party has come forth with reliable evidence that is more than a naked assertion ... that it did not intend to be bound by the arbitration agreement, even though on the face of the pleadings it appears that it did. Under the first scenario, arbitrability not being apparent on the face of the complaint, the motion to compel arbitration must be denied pending further development of the factual record. The second scenario will come into play when the complaint and incorporated documents facially establish arbitrability but the non-movant has come forward with enough evidence in response to the motion to compel arbitration to place the question in issue. At that point, the Rule 12(b)(6) standard is no longer appropriate, and the issue should be judged under the Rule 56 standard.

Under either of those scenarios, a restricted inquiry into factual issues will be necessary to properly evaluate whether there was a meeting of the minds on the agreement to arbitrate and the non-movant must be given the opportunity to conduct limited discovery on the narrow issue concerning the validity of the arbitration agreement. In such circumstances, Rule 56 furnishes the correct standard for ensuring that arbitration is awarded only if there is an express, unequivocal agreement to that effect.

Id. (internal citations and quotations and external citation omitted).

Thus, where the complaint and supporting documents are unclear as to an agreement to arbitrate or where a plaintiff responds to a motion to compel with additional facts sufficient to place the issue of arbitrability “in issue,” then the parties should be entitled to discovery. After limited discovery, a court may then “entertain a renewed motion to compel arbitration” and should review such a motion under the summary judgment standard.

If summary judgment is unwarranted in light of material factual disputes regarding an agreement’s enforceability, a court should then proceed to trial “regarding ‘the making of the arbitration agreement or the failure, neglect, or refusal to perform the same,’ as Section 4 of the FAA envisions.” Id. (quoting Somerset Consulting, LLC v. United Capital Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D.Pa.2011)). In every instance, “[b]efore a party to a lawsuit can be ordered to arbitrate and thus be deprived of a day in court, there .should be an express, unequivocal agreement to that effect.” Id. (quoting Par-Knit Mills, 636 F.2d at 54).

IV. Discussion

There is a logical nexus between the question whether Plaintiff has standing to bring a Sherman Act claim and the question whether Defendants are amenable to Sherman Act lawsuits under the Foreign Trade Antitrust Improvements Act. Added to the mix is Defendants’ Motion to Compel Arbitration, which turns on the question whether Plaintiff stepped into the shoes of its brokers, and whether the brokers contracted to arbitrate disputes with Defendants. In one way or another, all three of these questions are affected by the degree of attenuation between Defendants’ alleged antitrust activity and Plaintiffs alleged injury. And all depend to some degree on plaintiffs’ describing the purchases they made, and the terms of the contracts under which they made them, which they have not done in this Complaint.

I first discuss the standing questions. They provide valuable context and also make it easier to see what is required to poise the Motion to Compel Arbitration for decision.

A. Failure to State a Claim-Injury, Antitrust Standing and the Direct Purchaser Rule

I analyze standing in the context of Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6). As to the motions to dismiss, I technically raise the issue of “antitrust standing” sua sponte. It was in connection with the motion to compel arbitration that Defendants first challenged the adequacy of Plaintiffs’ allegations of direct-purchaser status. See, e.g., Seven Defendants’ Brief in Support of Motion to Compel Arbitration, Feb. 5, 2008, ECF No. 37-1 (“Def. Brief MTCA, 37-1”), and Defendants’ Supplemental Brief in Further Support of its Motion to Compel Arbitration, July 6, 2012, ECF No. 137 (“Def. Supp. Brief MTCA, 137”). But when my analysis persuaded me that standing was central to many of the issues raised in the motions, I gave the parties fair warning that I was considering it, and invited supplemental briefing on the standing issue. ECF No. 163. Both sides submitted supplemental briefs on antitrust standing.. ECF Nos. 155, 156. The Defendants also filed a letter in reply to Plaintiffs’ supplemental brief. ECF No. 157.

Of course, the issue of standing does not even arise unless Plaintiff has pleaded the minimum prerequisites of a potential Sherman Act violation. That threshold has been met here. The Complaint alleges that a cartel fixed prices, the quintessential antitrust violation. See Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 345, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982) (recognizing that the Court, “has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act” and that “any combination which tampers with price structures is engaged in an unlawful activity”) (quoting United States v. Socony-Vacumn Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)); accord Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 830 (3d Cir.2010) (“Some categories of restraints, such as horizontal price-fixing and market allocation agreements among competitors, ‘because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.’ ”) (quoting N. Pac. Ry. Co., 356 U.S. at 5, 78 S.Ct. 514); Cordes & Co. Fin. Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 105 (2d Cir.2007) (“Horizontal price-fixing agreements are per se violations of the Sherman Act.”) (citing Socony-Vacuum Oil Co., 310 U.S. at 210-28, 60 S.Ct. 811).

Plaintiffs’ theory is that this is a per se violation of § 1 of the Sherman Act:

Defendants have directly sold and delivered magnesite and magnesite products to customers in the United States at prices inflated, fixed, and maintained by the conspirators pursuant to horizontal agreements to restrain trade. The allegations of this Complaint of a conspiracy are not inferred from evidence of parallel pricing; instead, Defendants have expressly agreed and conspired to fix prices and limit competition. Defendants also engaged in communications and meetings. This is confirmed by documentary evidence from a nongovernmental association of which Defendants are members. These acts constitute per se violations of Section 1 of the Sherman Act, 15 U.S.C. § 1.

AC ¶ 2.

The Complaint sufficiently alleges meetings among the Defendants in which the export price of magnesite was discussed and agreed upon. See § II.C, supra. Such facts plausibly set forth the existence of “horizontal price-fixing” agreements which “because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.” Deutscher Tennis Bund, 610 F.3d at 830 (quoting N. Pac. Ry. Co., 356 U.S. at 5, 78 S.Ct. 514). At least for purposes of a motion to dismiss, then, Plaintiffs have adequately alleged conduct that would constitute a per se violation of § 1 of the Sherman Act.

Whether the Plaintiffs have alleged antitrust injury arising from such a violation, and whether Plaintiffs possess standing to bring such claims, however, are questions that require closer analysis.

1. Antitrust standing in general

The Clayton Act creates a private antitrust right of action, but this “additional avenue of enforcement ... is not open to all who might be interested in punishing the wrongdoer or who might have suffered some peripheral loss. In an effort to keep private enforcement within reasonable bounds, the courts have imposed limitations designed to discourage plaintiffs other than those most apt to carry out the purposes of the statutes.” Alberta Gas Chemicals Ltd., 826 F.2d at 1239. Accord Warren Gen. Hosp., 643 F.3d at 80; see also Blue Shield of Virginia v. McCready, 457 U.S. 465, 476-77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (“An antitrust violation may be expected to cause ripples of harm to flow through the Nation’s economy; but ‘despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable.’ ”) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 760, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977)).

It is well settled that a private party seeking treble damages pursuant to § 4 of the Clayton Act must establish that it is the proper private enforcer. First, an antitrust plaintiff must show that it has suffered injury of the type the antitrust laws intended to prohibit. See Brunswick, Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). Second, an antitrust plaintiff must establish that it has “antitrust standing,” meaning that it is the proper plaintiff to enforce § 4’s private right of action. See AGC, 459 U.S. at 535 n. 31, 103 S.Ct. 897 (“Harm to the antitrust plaintiff is sufficient to satisfy the constitutional standing requirement of injury in fact, but the court must make a further determination whether the plaintiff is a proper party to bring a private antitrust action”).

In cases like this one involving alleged overcharges by a cartel, the concept of “standing” is often loosely used to encompass the distinct but related doctrines of antitrust injury, antitrust standing, and the “direct purchaser rule.” Those doctrines all attempt to limit the scope of antitrust liability at an early pleading stage to reduce the burden of antitrust litigation. One commentator explains it thus:

These doctrines have at least two common features. First, they all bear on the larger question of the scope of antitrust liability. They are the tools by which courts identify which victims of an antitrust violation may recover damages, given the nature of the relationship between the victim’s harm and the violation. Second, the three doctrines are all commonly applied at an early stage of litigation, in either a motion to dismiss or for summary judgment. These common elements turn out to be related. To be most effective as a means of rationally limiting the costs of antitrust litigation, a doctrine should be suited to summary disposition, since unjustified suits can then be weeded out before their costs become unnecessarily burdensome. Limitations on the scope of liability are particularly well-suited to this task, since they often involve few issues of fact. While relatively permissive pleading and summary judgment standards may allow a plaintiff to survive on general allegations of a substantive violation, it is particularly difficult to conceal the plaintiffs relationship to the alleged violation. The characteristics of that relationship are the focus of inquiry in defining the scope of liability.

William H. Page, The Scope of Liability for Antitrust Violations, 37 Stan. L.Rev. 1445,1447-48 (1985).

Antitrust standing — “a malleable concept not easily defined” — is a requirement challenging to identify and enforce. See Alberta Gas, 826 F.2d at 1239 (“A malleable concept not easily defined, antitrust standing has been construed in a variety of ways and settings. The struggle to articulate a precise formulation is a continuing one because success has proved elusive.”). In this case, where Plaintiff Resco alleges antitrust injury arising from its purchases of magnesite at prices inflated by a horizontal price-fixing conspiracy, the standing analysis is delimited by the “direct purchaser rule,” first announced in Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 488, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), and further developed in Illinois Brick Co. v. Illinois, 431 U.S. 720, 760, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). See Warren Gen. Hosp., 643 F.3d at 85-87 (discussing the origins and development of the direct purchaser rule). The Illinois Brick rule “limits antitrust actions to suits brought by parties that are the direct purchasers of the product.” Id. at 84 (citing Illinois Brick). Although Illinois Brick did not explicitly frame its analysis in terms of standing, it has been understood as such in subsequent cases. See McCarthy v. Recordex Service, Inc., 80 F.3d 842, 847-48 (1996) (“the Supreme Court articulated the so-called ‘direct purchaser’ rule, an antitrust standing doctrine that barred downstream indirect purchasers from bringing an antitrust claim.”) (emphasis added); Page, Scope of Liabili ty at 1447 (“A second, closely related doctrine that has been used to limit the scope of antitrust liability is the Illinois Brick rule, under which indirect purchasers of price-fixed goods are denied the right to recover for overcharges under Section 4, except in rare circumstances.”)- The Illinois Brick direct purchaser rule limits the scope of liability by choosing the most suitable plaintiff from among the purchasers potentially harmed by cartel pricing.

The courts sometimes combine the rela