International Ass'n of Machinists & Aerospace Workers v. Verso Paper Corp. (80 F. Supp. 3d 247, 2015)

ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND ADDENDUM

JOHN A. WOODCOCK, JR., District Judge.

As early as January 19, 2015, Verso Paper Corp. and Verso Paper LLC (Verso) anticipated selling the Bucksport, Maine Paper Mill to AIM Development (USA), LLC (AIM) and in anticipation of the sale, Verso ceased paper mill operations in Bucksport. In this lawsuit, former Verso employees of the Bucksport Paper Mill, their union, and former Verso employees in their capacity as consumers of coated paper goods allege various federal and state antitrust law violations, and seek an order enjoining and restraining Verso and AIM from closing on the sale. The Court denies Plaintiffs’ motion.

I. BACKGROUND

A. Procedural Background

On December 15, 2014, the International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1821 (IAM or IAMAW), Richard Gilley, Corey Darveau, Brian Simpson, Brian Abbott, and Harold Porter (Plaintiffs) filed a complaint against Verso Paper Corp. and Verso Paper LLC (Verso) and against AIM Development (USA) LLC (AIM). Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl.). Also on December 15, 2014, Plaintiffs filed a motion for a temporary restraining order and preliminary injunction. Mot. for a TRO and a Prelim. Inj. Pursuant to F.R.C.P. 65 (ECF No. 4) (Pis.’ Mot.). On December 22, 2014, Plaintiffs filed an amended complaint, which added 53 Local No. 1821 Members as plaintiffs and included additional allegations. First Am. Compl. for Declaratory and Injunctive Relief (ECF No. 29) (Am. Compl.). In the Amended Complaint, Plaintiffs allege that: (1) Verso publicly refuses “to consider any offers to purchase [the] Bucksport [Mill] from other” competitors, and deliberately selected AIM as the buyer, which has “a prior history of scrapping paper making mills” and plans on doing the same in Bucksport, all in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1-2; and (2) AIM’s acquisition of a Verso subsidiary “will substantially lessen competition, and tend to create a monopoly, in the relevant national market for coated printing paper,” in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, and Maine antitrust law, 10 M.R.S. §§ 1101-1102-A. Id. ¶¶ 2, 4.

At the request of Plaintiffs, the Court held a telephone conference on December 19, 2014 and set initial scheduling deadlines. Minute Entry (ECF No. 26). On December 27, 2014, Plaintiffs filed a request for judicial notice, and a sworn attorney declaration relating to the accuracy of the documents attached to the First Amended Complaint. Pis. ’ Req. for Judicial Notice (ECF No. 45) (Req. for Judicial Notice); Decl. of Kimberly J. Ervin Tucker (ECF No. 46) (First Tucker Decl.)

On January 2, 2015, AIM filed its response in opposition to Plaintiffs’ motion. Mem. of AIM Dev. (USA) LLC in Opp’n to Pls.’ Mot. for TRO and Prelim. Inj. (ECF No. 64) (AIM’s Opp’n). Also on January 2, 20Í5, Verso filed its response in opposition to Plaintiffs’ motion. Defs. Ver so Paper Corp. and Verso Paper LLC’s Opp’n to Pis.’ Mot. for a TRO and a Prelim. Inj. (ECF No. 67) (Verso’s Opp’n). On January 5, 2015, Magistrate Judge John C. Nivison held a telephone conference regarding discovery. Minute Entry (ECF No. 71). On January 6, 2015, the Magistrate Judge issued an order on discovery. Order on Disc. (ECF No. 74). On January 8, 2015, Plaintiffs filed their reply to AIM and Verso’s oppositions, and on January 12, 2015, they filed a corrected reply. Pis.’ Reply Mem. in Support of Mot. for TRO and Prelim. Inj. Under the Antitrust Laws (ECF No. 79) (Pis.’ Reply ); Pis. ’ Corrected Reply Mem. in Support of Mot. for TRO and Prelim. Inj. Under the Antitrust Laios (ECF No. 82) (Pis. ’ Corrected Reply). Also on January 12, 2015, Verso filed a surreply. Defs. Verso Paper Corp. and Verso Paper LLC’s Surreply in Further Opp’n to Pis.’ Mot. for a TRO and a Prelim. Inj. (ECF No. 84) (Verso’s Surreply). On January 13, 2015, the Court heard oral argument. Minute Entry (ECF No. 86).

B. Factual Background

1. The Parties

AIM is an affiliate of American Iron & Metal Company, Inc. AIM’S Opp’n Attach. 1 Membership Interest Purchase Agreement among AIM and Verso § 1.01 (MIPA). It is “one of the leading firms in the world in the metal recovery- and recycling industry.” Decl. of Jeff McGlin in Support of AIM Dev. (USA) LLC’s Opp’n to Mot. for TRO and Prelim. Inj. ¶ 4 (ECF No. 65) (McGlin Decl.). In addition, much of its business “involves sourcing scrap metal through the purchase of discontinued manufacturing facilities, salvage of the recoverable metal, and preparation of the site for further disposition.” Id. ¶ 5.

Verso Paper Corporation is a Delaware corporation and indirect parent of the sellers of the Bucksport Mill, Verso Paper LLC, a Delaware limited liability company, and Verso Maine Power Holdings LLC, also a Delaware limited liability company. MIPA at 2, § 1.01.

Plaintiffs are a labor union and its 59 hourly-wage members employed as mechanics at the Bucksport Mill, as well as “purchasers of magazines and other products that contain coated paper.” Pis. ’ Mot. at l.

2. The Merger Between Verso and NewPage; The DOJ’s Approval of the Merger

On January 3, 2014, Verso agreed to acquire NewPage Holdings, Inc. (New-Page) for approximately $1.4 billion. United States v. Verso Paper Corp., Case No. 1:14-cv-2216 at 2 (D.D.C. Dec. 31, 2014), http://www.justice.gOv/atr/cases/f 310800/310833.pdf (Competitive Impact Statement). The NewPage Acquisition was submitted to the United States Department of Justice (DOJ) for antitrust review and clearance, which remained pending at the time of Plaintiffs’ lawsuit on December 15, 2014. Pls. ’ Mot. at 5. In a letter to Verso employees dated October 30, 2014, Verso President and CEO David Paterson provided an update to employees:

Today, in order to address potential antitrust considerations related to the acquisition, NewPage Corporation and two of its subsidiaries signed an agreement to sell NewPage’s paper mills in Biron, Wisconsin, and Rumford, Maine, to a subsidiary of Catalyst Paper Corporation.

Compl. Attach. 28 Statement of PL Harold Porter at 3 (Porter Decl.).

On December 31, 2014, as part of the settlement process with Verso, the DOJ filed a civil antitrust action in the United States District Court for the District of Columbia alleging that the pending merger would violate antitrust laws. Competitive Impact Statement at 1. However, the DOJ also submitted a “Hold Separate Stipulation and Order” and proposed Final Judgment, “which are designed to eliminate the anticompetitive effects of the acquisition,” and thus, allow the merger to proceed. Id. at 2, 9-12. Under the terms of the proposed Final Judgment, the NewPage paper mills in Biron, Wisconsin and Rum-ford, Maine must be sold to Catalyst Paper Corporation, or an alternate buyer approved by the DOJ. Id. at 2, 910. The purpose of the divestiture is to “provide the purchaser of the divested assets with a market presence comparable to Verso’s current market presence in the relevant markets.” Id. at 11. With this caveat, the DOJ states that it “is satisfied ... that the divestiture of assets described in the proposed Final Judgment will preserve competition for the provision of coated freesh-eet web paper, coated groundwood paper, and label paper in the relevant market identified by the [DOJ].” Id. at 14. Furthermore, “[t]he [DOJ] does not allege that the closing of the Bueksport Mill is a result of the merger.” Id. at 3 n. 1.

The district court will rule on whether the proposed Final Judgment “is in the public interest” after the 60-day comment period passes, as required by 15 U.S.C. § 16(e)(1). Id. at 15. However, Verso’s counsel indicated to the Court during oral argument on January 13, 2015 that the Verso-NewPage merger is complete. Tr. of Proceedings 31:12-14 (ECF No. 90).

3. The Bueksport Mill and Its Closure

The Bueksport Mill employed over 500 people (including Plaintiffs). Pis. ’ Mot. at 2; Verso’s Opp’n at 2. It was capable of producing “approximately 350,000 tons of coated groundwood paper and 55,000 tons of specialty paper per year.” Verso’s Opp’n Attach. 2 Decl. of George A. Hay in Support of the Verso Defs.’ Opp’n to Pis.’ Mot. for Entry of a TRO and a Prelim. Inf ¶ 6 (Hay Decl). On October 1, 2014, Verso announced its plans to shut down the Bueksport Mill. Compl. Attach. 31 Statement of PI. Brian Simpson at 2 (Simpson Decl.)-, id. Attach. 30 Statement of I AM AW 1821 Member Alfred George at 2 (George Decl). The following day, Verso Vice President Dennis Caston-guay told employees that the Mill “may be offered on the market, but not to a competitor.” George Decl. at 2; Porter Decl. at 2. On December 4, 2014, the Bueksport Mill’s printing facilities shut down. Pis.’ Mot. at 6.

4. Verso’s Reasons for Shutting Down the Bueksport Mill

Mr. Paterson stated that “Verso had unilateral, legitimate business reasons for closing the Bueksport Mill.” Verso’s Opp’n Attach. 1 Decl. of David J. Paterson in Support of the Verso Defs. ’ Opp’n to Pis. ’ Mot. for Entry of a TRO and a Prelim. Inf ¶ 5 (Paterson Decl). He asserted that the Mill was “unprofitable for the past several years, despite Verso’s attempts to increase its profitability,” and its “cash flow and EBITDA (earnings before interest, taxes, depreciation and amortization), both of which are common measures of profitability, were significantly negative for the past several years.” Id. ¶ 6. Mr.. Paterson also explained that the Mill was “highly dependent on natural gas as an energy source,” but because the cost of natural gas is so high, especially during the winter season, it “played a significant role in Verso’s decision to close the Bucks-port mill before the winter of 2014-2015.” Id. ¶ 17. Furthermore, according to Dr. George A. Hay, a Verso-hired economist, “North American demand for publication papers is declining rapidly primarily due to the proliferation of tablet computers, e-readers, internet-based publications and advertising, and electronic mail,” and there is and will continue to be a trend of paper mill closures across North America. Hay Decl. ¶¶ 7, 9-10.

In addition, Mr. Paterson stated that “Verso has considered closing the mill for several years,” even before the NewPage merger was negotiated. Paterson Decl. ¶ 9. According to him, it did not close before now because it had insufficient “cash on hand to pay the costs associated with closing,” approximately $35-M0 million. Paterson Decl. ¶ 18; Hay Decl. ¶ 17. Dr. Hay noted that Verso has overall debt of approximately $1.3 billion, and in his opinion, it could eventually file for bankruptcy as a standalone company. Hay Decl. ¶ 12. Mr. Paterson affirmed that the proceeds of the pending sale with AIM will be used to pay closing costs, “including the payment of severance and other benefits to the former employees of the mill.” Paterson Decl. ¶ 20. According to Dr. Hay, the sale will also put Verso “in a position to be a more vigorous competitor in the publication papers market.” Hay Decl. ¶ 18.

Despite Mr. Paterson’s explanations for why the Mill is closing now, Frederick R. Warren-Boulton, an economist hired by Plaintiffs, opined that the timing of the merger and sale may not be coincidental because “the acquisition will increase the profitability to Verso of closing Bucksport, and can make the closure of Bucksport profitable even though it would not be profitable to close the mill, at least at this time, absent the merger.” Pis. ’ Reply Attach. 7 Decl. of Frederick R. Warren-Boulton at 3 (Warren-Boulton Decl).

5. Verso Agrees to Sell the Bucksport Mill to AIM

According to AIM Vice President Jeff McGlin, AIM first became aware that the Bucksport Mill was for sale “on or about November 30, 2014,” by which time Verso had announced its plans to shut down the Mill. McGlin Decl. ¶¶ 10-11. He stated that the Mill “was being actively marketed by a broker, Concentric Energy Advisors.” Id. ¶ 10. Mr. McGlin confirmed that before the transaction at issue in this case, AIM had bought a Verso paper mill in Minnesota in 2013, “which had been destroyed by an explosion, to salvage the mill for scrap.” Id.

On December 2, 2014, AIM submitted its initial bid. Paterson Decl. ¶ 11. On December 8, 2014, Verso announced an agreement to sell the Bucksport Mill to AIM for $58 million. Pis.’ Mot. at 1, 6; MIPA § 2.03(a)®; see also Paterson Decl. ¶ 19 (“Verso sold the Bucksport mill to AIM for approximately $60 million”). AIM paid a $10 million deposit as part of the transaction. McGlin Decl. ¶ 14. The closing is scheduled to occur at a date in the near future, as soon as January 19, 2015. Tr. of Proceedings 3:1-22.

Mr. Paterson maintained that “Verso neither sought nor received the written consent of NewPage for the sale of the Bucksport mill. NewPage’s consent was not necessary ... because the sale of the Bucksport mill was not undertaken at the request of the [DOJ] in order to obtain regulatory clearance” of the merger. Paterson Decl. ¶ 22.

6. Alternate Potential Purchasers of the Bucksport Mill

According to Mr. Paterson, “[a]ny purchaser of the Bucksport mill would not purchase an ongoing business, but instead a non-functioning mill without orders, inventory, raw materials or a sales force to generate those orders.” Id. ¶ 13. To his knowledge, no coated groundwood paper manufacturer “expressed an interest in buying the Bucksport mill and operating its papermaking facilities.” Id. ¶ 14. In addition, even if such a purchaser existed, Mr. Paterson “would not expect” it to buy the Mill “at any price above $60 million.” Id. ¶ 15.

Notwithstanding Mr. Paterson’s statements, an expert for Plaintiffs, Whitfield Russell, a public utility consultant and principal of Whitfield Russell Associates, stated that he emailed the person he thought was the assistant to the Verso CEO on November 18, 2014 to inform Verso that he had two clients that sought anonymity but also had “[c]onsiderable interest” in making a potential bid on the electricity generation plant at the Bucks-port Mill and requested review of company documents as part of a due diligence analysis. Pis. ’ Reply Attach. 1 Aff. of Whitfield A. Russell ¶¶ 1, 9(a) (Russell Decl.). However, Mr. Russell represented that he never received a response from Verso regarding his email. Id. ¶ 9(b). In addition, regarding the $58 million sale price, Mr. Russell believed it “is a relatively low price typical of older, condensing power plants divested by electric utilities.” Id. In his view, had one of his anonymous clients been permitted “to bid on the Bucksport co-generation facility, it would have necessarily undertaken to explore carefully whether there was any paper making company willing to continue operation of the paper making capacity at Bucksport,” and had such a company emerged, would have potentially led to a higher bid for the Mill. Id. ¶ 9(c).

Mr. Warren-Boulton stated that “it may well be profitable for a buyer other than AIM to continue operating Bucksport even if it is not profitable for Verso to operate Bucksport after the merger. Specifically a new [owner] could find it profitable to operate Bucksport and would be willing to pay more for Bucksport than AIM is willing to pay.” Warren-Boulton Decl. at 4. However, he did not provide insight on whether there were or are any specific buyers to buy. the Bucksport Mill, or to buy it for more than $58 million. See id. at 2-5.

Upon information from officials with the state of Maine, Plaintiffs’ counsel attempted to learn the identity of an alleged potential buyer willing to pay more than $58 million for the Mill, one who had emerged before Verso accepted the AIM contract.. Pis. ’ Reply Attach. 6 Decl. of Kim Ervin Tucker at 2 (Second Tucker Decl.). However, Attorney Tucker explained “it is impossible for the State or Plaintiffs to confirm this since Verso had required. the buyer to sign a confidentiality agreement regarding any offers made to Verso.” Id. On January 8, 2015, Maine Governor Paul LePage’s office issued a public statement regarding closure of the Bucksport Mill, noting that “Administration officials are aware [a] firm was able to communicate with Verso and express its interest in pursuing due diligence to continue papermak-ing activities. Before that due diligence could even take place, Verso chose to sell the asset to AIM.” Id. at 5. According to the Governor’s Office, “more than one firm had expressed genuine interest in acquiring the asset in Bucksport to continue papermaking activities.” Id. at 4. In addition, the public statement claimed that another potential firm “made several attempts to contact Verso” before the sale to AIM, but Verso never responded. Id. at 5. Finally, the Governor’s Office stated that “there are still interested parties out there.” Id.

7. AIM’s Intended Use of the Bucksport Mill

On its face, the MIPA entered into between AIM and Verso suggests that AIM intends to use the Bucksport Mill for its power-generating facility, its scrap value, and for use as a landfill, but does not mention paper production. MIPA § 1.01 (“Buyer’s Intended Use”). In addition, AIM does not sell or produce coated paper. McGlin Decl. ¶ 7. Since 2011, AIM has acquired three paper mills in total (not including the Bucksport Mill) from New-Page and Verso. Id. ¶8; Supplemental Decl. of Jeff McGlin ¶4 (ECF No. 88) (McGlin Supplemental Decl.).

Despite section 1.01 of the MIPA, Mr. McGlin explained that AIM will not necessarily scrap the Bucksport Mill, at least not right away:

AIM has not agreed with Verso that it will dismantle the mill. AIM is at liberty to resell the mill at any time after closing, and would sell to a buyer intending to operate the mill to make paper, if the offer represented a better economic opportunity than salvage of the mill. Since it will take some time to commence and complete salvage operations, there will be a period of opportunity after closing for a buyer to purchase the mill from AIM before the mill is dismantled.

McGlin Decl. ¶ 13. Furthermore, during .oral argument, AIM’s counsel indicated that the definition from section 1.01 is

used in all of the seller’s representations and warranties and covenants, and the reason is quite simple. Verso is promising AIM that in the interim period be-' tween the [MIPA] and the closing of the transaction, Verso’s not going to do anything with that facility that’s going to impair what AIM is planning to do with that — with that property.

Tr. of Proceedings 59:16-22. The Court later inquired: “But you’re saying that that [provision] doesn’t apply to postsale activities on the part of AIM?” Id. 60:8-9. AIM’s counsel replied: “Correct. There’s not a single promise by AIM in that agreement anywhere regarding how AIM is going to use that facility. That’s just not a covenant or a representation that AIM makes to Verso.” Id. 60:10-13.

In addition, Mr. McGlin stated that while “AIM has not finalized its strategy for the use of the site ... the site represents a potentially very good strategic fit with a number of recycling facilities AIM has developed throughout Maine, and AIM intends to explore the beneficial use it might develop for the deep water port associated with the Mill site.” McGlin Decl. ¶ 17.

II. POSITION OF THE PARTIES

A. Plaintiffs’ Motion

Plaintiffs assert that, through this lawsuit, they hope “to protect and preserve the capacity of the Bucksport Mill to operate as a paper mill,” and continue their employment at the Mill “under the employ of a successor employer.” Pis. ’ Mot. at 1 & n. 1. In addition, they contend that Verso plans on “violating its prior commitment to Plaintiffs” regarding when it will remove hard drives and data on the hard drives from the Bucksport Mill computers; Plaintiffs claim that Verso promised not to remove hard drives and data until after the sale, but now plan on doing so “a few days before the transaction is completed.” Id. at 1-2. They further argue that an injunction is necessary under the circumstances of this case:

Once AIM takes control of the Bucks-port Mill, it will be nearly impossible for Plaintiffs to obtain the relief they seek in their lawsuit, which is a limited injunction against the destruction or sale of the Bucksport Mill to any entity which does not intend to continue to use it for the production of paper until at least June 1, 2015, so that a paper-manufacturer has adequate time to make a bona fide offer for the Bucksport Mill.

Id. at 3. In summary, Plaintiffs contend that closure of the Bucksport Mill and its pending sale to AIM “is anticompetitive and violates federal [and state] antitrust laws,” specifically, 15 U.S.C. §§ 1-2, 18, and 10 M.R.S. §§ 1101-1102-A. Id. at 2.

Quoting Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 430 (1st Cir.1985) for the proposition that “ ‘the key to the whole question of an antitrust remedy is of course the discovery of measures effective to restore competition,’ ” Plaintiffs seek a temporary restraining order (TRO) and preliminary injunction: (1) blocking the sale between Verso and AIM or any other entity that does not intend to continue operating the Bucksport Mill as a paper mill; (2) prohibiting “Verso and AIM from taking any actions that would render the Bucksport Mill inoperable on a cost basis, or otherwise financially impair the Bucksport Mill”; (3) forcing Verso to coordinate with the Maine Department of Economic and Community Development or another neutral party appointed by the Court “to seek, solicit, evaluate and respond to offers from prospective buyers willing to continue to operate the Bucksport Mill as a printing paper mill”; (4) ensuring that Verso and AIM not damage “the Bucksport Mill as a going concern for the production of coated paper”; (5) forbidding Verso from selling or attempting to sell the “electric power plant associated with the Bucksport Mill” unless sold to a buyer that agrees to continue running the Mill as a paper mill; and (6) preventing Verso “from rejecting any offer to purchase the Bucksport Mill at a reasonable price from any bona fide buyer [including any competitor] willing to continue operating it” as a paper mill. Id. at 3-5.

In Plaintiffs’ view, ‘Verso’s sole purpose in shutting down the Bucksport Mill and selling it for scrap is to reduce competition in the North American market for coated paper, and increase its chances for obtaining monopoly power.” Id. at 7. Furthermore, referencing prior deals between AIM and Verso, which Plaintiffs characterize as “scrapping endeavors,” they argue that those deals and the pending Bucks-port Mill sale “are all part of a Verso-NewPage-AIM scheme to reduce capacity and supply in the coated paper market ... [t]he antitrust laws do not permit a dominant firm to conspire to reduce output, as Verso plainly is poised to do.” Id. Thus, according to Plaintiffs, if this deal goes through, the following laws will be violated:

1. 15 U.S.C. § 18 and 10 M.R.S. § 1102-A: By Verso’s attempt to shut down the Bucksport Mill and pending deal with AIM, it “tend[s] to create a monopoly, in both the market for coated paper in North America, and the labor market for specialized Mill workers in the state of Maine”;

2. 15 U.S.C. § 2 and 10 M.R.S. § 1102: By Verso’s attempt to shut down the Bucksport Mill and pending deal with AIM, it “creates a dangerous probability that Verso will achieve monopoly power and raise market prices,” and constitutes conspiracy to monopolize; and

3. 15 U.S.C. § 1 and 10 M.R.S. § 1101: ‘Verso’s agreement with NewPage to shut down the Bucksport Mill and reduce output constitutes concerted action in restraint of trade.”

Id. at 7-8.

Addressing the suitability of a preliminary injunction, Plaintiffs recite the four required elements:

(i) [T]he movant’s likelihood of success on the merits of its claims;

(ii) whether and to what extent the mov-ant will suffer irreparable harm if the injunction is withheld;

(in) the balance of hardships as between the parties; and

(iv) the effect, if any, that an injunction (or the withholding of one) may have on the public interest.

Id. at 9 (quoting Corporate Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir.2013)). In Plaintiffs’ view, “all four factors favor granting a TRO and preliminary injunction.” Id. at 10.

1. Likelihood of Success on the Merits

Plaintiffs contend that they have shown a likelihood of success on the merits based on their claims that Verso has violated federal and state antitrust laws. Id. First, quoting Section 7 of the Clayton Act, 15 U.S.C. § 18, they assert that the MIPA between Verso and AIM and prior dealings demonstrate an intent to “ ‘substantially ... lessen competition, or to tend to create a monopoly.’ ” Id. Specifically, the deal

will lead to the immediate removal of 350,000 tons of production capacity from the market for coated paper and will “substantially lessen competition” in the same market. Additionally, it will also lessen competition in the market for the specialized labor provided by plaintiffs that have been trained to work in paper production.

Id. at 11. According to Plaintiffs, if the acquisition were completed, Verso-New-Page will control “more than fifty percent (50%) of the North American coated paper market.” Id. at 11-12.

Second, Plaintiffs argue that they “have established that Verso has attempted to monopolize the market for North American coated paper,” in violation of 15 U.S.C. § 2. Id. at 12. To prove an “attempt to monopolize,” Plaintiffs say they must show “ ‘(1) the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.’ ” Id. (quoting Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 448, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)). They assert that (1) the first Spectrum Sports element has been met because they “have demonstrated that Verso has engaged in anticompetitive conduct by intentionally shutting down and selling the Bucksport Mill at below market value for salvage, as well as stating publically that it would not sell the Bucksport Mill to any competitor,” id.; (2) the second Spectrum Sports element has been met based on “Verso’s statements that it will not sell the Mill to any competitor, and the suspicious timing of its actions to shut down the Bucksport Mill while a DOJ investigation [was] pending,” id. at 13; and (3) the third Spectrum Sports element has been met because ‘Verso will have greater tha[n] 50% of the market for coated paper in ... North America” if the NewPage Acquisition is approved. Id. at 13-14 (citing Hayden Pub. Co. v. Cox Broad. Corp., 730 F.2d 64, 69 n. 7 (2d Cir.1984); Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 667 (7th Cir.1987)).

Third, Plaintiffs assert that “an agreement to shut down the Bucksport Mill constitutes a restraint of trade,” in violation of 15 U.S.C. § 1. Id. at 14. This is so, according to Plaintiffs, because (1) Verso and NewPage are competitors that reached an agreement “to reduce output,” (2) Verso could not shut down the Bucks-port Mill without the written approval of NewPage (i.e., to gain DOJ approval and indicates that Verso and NewPage communicated about the Bucksport Mill sale), and (3) “both parties understand that reducing their market share in the market for North American coated paper would improve the chances for the acquisition gaining approval,” as demonstrated by Verso and NewPage agreeing that upon DOJ approval, NewPage “should sell two of its paper mills to a third party if the acquisition is approved.” Id. at 14-15.

Fourth, Plaintiffs claim they have “demonstrated a conspiracy to monopolize between Verso and AIM,” in violation of 15 U.S.C. § 2. Id. at 15. To prove a “conspiracy to monopolize,” Plaintiffs say their burden of proof must only reasonably tend to show “ ‘(1) concerted action; (2) overt acts in furtherance of the conspiracy; and (3) specific intent to monopolize.’” Id. (quoting Boston Scientific Corp. v. Schneider (Eur.) AG, 983 F.Supp. 245, 268 (D.Mass.1997); citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). They argue that (1) the first Boston Scientific Corp. element has been met because the sale agreement between AIM and Verso states that “AIM will only use the Mill as a power plant, as a landfill, and for salvage,” id.; (2) the second Boston Scientific Corp. element has been met based on AIM and Verso’s prior dealings and the sale at hand, id. at 15-16; and (3) the third Boston Scientific Corp. element has been met based on Verso’s public statement that it will not sell the Mill to one of its competitors, and the sale of the Mill “at far below market value.” Id. at 16.

2. Irreparable Harm Caused to Plaintiffs if the Preliminary Injunction was Denied

Plaintiffs argue they will suffer irreparable harm if the preliminary injunction and TRO were denied because they “have demonstrated that they will lose their ability to work for the Bucksport Mill if the Mill is sold to AIM and it is destroyed. Once the key facilities and machines of the Bucks-port Mill are gone, it would require enormously large investments of money and capital to reopen the Bucksport Mill and restart paper production.” Id.

3.The Balance of Hardships

In Plaintiffs’ view, there would be “no great hardship imposed on Verso” if it was prevented from selling the Bucksport Mill to AIM temporarily and required to keep the Mill in reasonable working condition “until a new buyer can be found.” Id. In contrast, according to them, Plaintiffs will suffer “great and irreparable hardship” if the Mill is sold and destroyed because a new buyer could no longer acquire and continue operating it as a paper mill, leaving Plaintiffs unemployed. Id. at 16-17.

4.The Effect on Public Interest

Plaintiffs also assert that the effect on public interest is great, as the “Bucksport Mill is vital not only to those it employs, but also the entire community of Bucks-port and the surrounding area. The Mill employs more than 500 persons and provides about 44% of the town’s tax revenue.” Id. at 17.

5.Standing

Finally, Plaintiffs argue they have standing under the Clayton Act, 15 U.S.C. § 26, to pursue their claims, and because they are seeking injunctive relief, “they need only show ‘significant threat of injury from an impending violation of the antitrust laws.’ ” Id. (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969)). Plaintiffs also argue they have standing not only as terminated employees of the Bucksport Mill, but also as “purchasers of magazines containing coated paper, [as] both interests coincide.” Id. at 17-18 (citing an array of caselaw). They explain:

The consumers’ interest is obvious: incrementally more capacity supplying the market is likely to lead to somewhat lower prices. The employees’ complementary interest in maintaining the Bucksport Mill as a viable long term producer of coated paper is equally obvious: they are suppliers of specialized, skilled paper mill labor in an isolated geographic market, and thus are dependent on the Mill being productively operated to create the demand for their skilled services.

Id. at 18.

Furthermore, Plaintiffs assert that standing in antitrust cases is evaluated on a case-by-case basis, based on the following factors:

(1) [T]he causal connection between the alleged antitrust violation and harm to the plaintiff;

(2) an improper motive [by Defendant];

(3) the nature of the plaintiff’s. alleged injury and whether the injury was of a type that Congress sought to redress with the antitrust laws (‘antitrust injury’);

(4) the directness with which the alleged market restraint caused the asserted injury;

(5) the speculative nature of the damages; and

(6) the risk of duplicative recovery or complex apportionment of damages.

Id. (quoting Sullivan v. Tagliabue, 25 F.3d 43, 46 (1st Cir.1994)). Here, Plaintiffs argue that all relevant Sullivan factors have been met, based in large part on arguments previously discussed (including that “ ‘loss of employment’ may constitute an antitrust injury” and “consumers of magazines and other products containing coated paper” have standing “because they will likely pay higher prices as a result of the destruction of the Bucksport Mill”). Id. at 19-20 (citing Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1176 (5th Cir.1976); Eichorn v. AT & T Corp., 248 F.3d 131, 142 (3d Cir.2001)).

B. AIM’s Opposition

AIM counters Plaintiffs’ motion by first adopting the arguments made by Verso that Plaintiffs have not demonstrated a likelihood of success on the merits. AIM’s Opp’n at 3; see Section II.C.l, infra. It adds that, despite Plaintiffs’ contention, it has “no restriction whatsoever regarding its disposition of the Mill, has not promised Verso that AIM will dismantle the Mill, and in fact if AIM were offered a better economic opportunity than salvage from a manufacturer seeking to make paper at the Mill, AIM would sell to that manufacturer.” AIM’s Opp’n at 3 (citing McGlin Decl. ¶ 13).

Although AIM argues that the Court should deny Plaintiffs’ motion based solely on the Plaintiffs’ failure to demonstrate a likelihood of success on the merits, it argues that the other three elements have not been met either. Id. at 4. First, addressing possible irreparable harm to Plaintiffs if the Court denied their motion, AIM asserts that Plaintiffs’ claim that the employees will not be able to work for the Mill if it is sold and subsequently destroyed “shows neither that Plaintiffs will suffer harm that is irreparable nor that the injunction they seek would prevent that harm.” Id. According to AIM, Plaintiffs may pursue a damages remedy but not injunctive relief, and the loss of jobs is not caused by the sale of the Bucksport Mill, but rather, “by the Mill’s unprofitability as a paper-making operation.” Id. at 4-5. In addition, AIM contends that it did not know of the possibility to purchase the Bucksport Mill until after Verso had announced the shutdown and informed its employees that they were being laid off. Id. at 5 (citing McGlin Decl. ¶ 10). Furthermore, AIM points out that Plaintiffs have not demonstrated a likelihood that a buyer of their preference will make an offer for the Bucksport Mill before their proposed June 2015 cutoff date, or that these employees will be available for work by that date. Id. In short, AIM believes “[a] brokered sale at arms’ length has produced presumably the best terms the market is willing to offer on the Bucksport Mill.” Id. at 6-7.

Turning to the balance of hardships, AIM contends that Plaintiffs’ assertions are merely conclusory. Id. at 7. In contrast, AIM contends there is evidence “of substantial countervailing harm to AIM.” Id. First, if there is a buyer willing to pay more for the Mill than AIM, “that opportunity for profit belongs to AIM by virtue of its purchase agreement, and the injunction would serve only to steal that opportunity from AIM.” Id. at 7-8. Second, if the injunction delays the closing until June 2015, AIM asserts it will be harmed by, among other things, loss of profits and substantial costs. Id. at 8 (citing McGlin Decl. ¶¶ 15(a)-(b), 18(a)-(d)). Third, “there is a significant chance that the injunction will kill this transaction, even if no other buyer can be found,” because the MIPA would allow Verso or AIM to terminate the deal. Id. (citing MIPA §§ 8.01, 6.01(e)). Plus, if the deal does not close, AIM argues it “will obviously lose any profit it expects to make,” and notes it has already invested $200,000 in costs associated with the sale, “which will be unrecoverable if the deal does not close.” Id. at 9.

Finally, addressing the effect on public interest, AIM observes that, as a result of the Consent Order filed by the Director of Bureau of Labor Standards in Kennebec County Superior Court on December 23, 2014, “all Bucksport Mill workers will receive all of their negotiated severance and vacation benefits within five days of AIM’s closing” or by March 19, 2015. Id. at 11; Def. Verso Paper Corp. and Verso Paper LLC’s Supplemental Mem. of Law in Opp’n to Pls.’ Mot. for Expedited Declaratory J. and Req. for Prelim, and Permanent Inj. Attach. 3 Consent Order ¶ 11 (ECF No. 40). Thus, if the sale is blocked, AIM asserts that workers will be unable to get “their money during the heating season, and in the earliest part of their search for new employment, [which] is a significant harm to those workers, to their dependents, and to local businesses that benefit from those workers’ ability to spend.” AIM’s Opp’n at 11. In addition, AIM argues that if the Mill is not going to continue on as a paper mill, it should be put “to some other productive use,” and finally, “enjoining AIM’s purchase of the Mill is destructive, not promotive, of competition.” Id.

C. Verso’s Opposition

In response to Plaintiffs’ motion, Verso counters that “Plaintiffs stop short of asking this Court to order the U.S. economy to generate demand for the products that Verso made at the Bucksport mill, but absent that market demand the relief that Plaintiffs seek will be futile.” Verso’s Opp’n at 2. Verso observes that even Plaintiffs observe that the coated paper markets are declining rapidly, and “[g]iven the acknowledged and inevitable decline of this industry, the only question is which mills will close — not whether more mills will close.” Id. at 3 (citing Am. Compl. ¶ 139). In summary, Verso argues that

Plaintiffs fall far short of meeting their burden of establishing, by a clear showing, that they satisfy even one of the four elements required for entry of a preliminary injunction, much less all four as the Supreme Court has required in Winter v. Natural Resources] Defense] Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). They therefore fail by even a wider margin to meet the even higher burden needed to justify a mandatory injunction of the type they request here.

Id.

In addition, Verso argues that Plaintiffs lack standing because their alleged injury (i,e., loss of employment) “is not a cognizable antitrust injury,” and that they have not made a “clear showing” to support the alleged antitrust violations under state or federal law. Id. Verso contends there was no conspiracy to monopolize as required to support a violation of 15 U.S.C. § 1, and this is further evidenced by the DOJ’s assertion that “Verso contemplated closing the [Bucksport] mill before it decided to merge with NewPage,” and the DOJ “does not allege that the closing of the Bucksport Mill is a result of the ... merger.” Id. at 3-4 (citing Competitive Impact Statement at 3 n. 1). Regarding Plaintiffs’ contention as to 15 U.S.C. § 2, Verso questions how it could gain “market power” in the industry by shutting down the Mill and “given the current state of competition in the” industry. Id. at 4. Regarding Plaintiffs’ contention as to Section 7 of the Clayton Act, Verso responds that because AIM is not a competitor and “[m]arket power cannot be created in the relevant market by the sale of an operation to a company that is not a competitor, supplier, or distributor in the market,” their claim must fail. Id. Verso also asserts that “Section 7 addresses the concern that a purchaser could gain market power as result of an acquisition. There is no instance in which a court found that a transaction gave a seller market power in violation of Section 7.” Id. (emphasis in original). As for the alleged violations under Maine law, Verso argues “there is no private right to seek injunctive relief.” Id.

1. Likelihood of Success on the Merits

a. Standing

First, Verso argues that Plaintiffs’ claims must fail because they lack standing because they have not shown an antitrust injury (i.e., loss of employment is not an antitrust injury). Id. at 9. According to Verso, because “Plaintiffs’ alleged injury derives entirely from [ ] Verso’s decision to close the Bucksport mill ... that injury ... is not an ‘injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts [allegedly] unlawful.’ ” Id. at 8 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). Verso relies on the Supreme Court’s observation in Brunswick Corp. that “the plaintiffs ‘would have suffered the identical ‘loss’ — but no compensable injury — had the acquired [companies] instead obtained refinancing or been purchased by [someone else],’ ” and therefore, there was no antitrust injury. Id. at 9 (quoting and citing Brunswick Corp., 429 U.S. at 487-88, 97 S.Ct. 690). Verso also asserts that a requisite showing of antitrust injury is required when a plaintiffls) seeks injunctive relief, and therefore, applies to Plaintiffs. Id. (citing Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 113, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986)). Here, Verso contends that, as was the' case in Brunswick Corp., Plaintiffs “would have suffered the identical loss” from Verso’s decision to close the Bucksport Mill, regardless of Verso’s competitive size, or if Verso had chosen not to sell the Mill at all. Id. In other words,' “Plaintiffs’ alleged injury flows from the closure of the mill, not from any reduction in competition in any market.” Id.

Next, citing Serpa Corp. v. McWane, Inc., 199 F.3d 6, 11 (1st Cir.1999), Verso argues that “Plaintiffs’ alleged irreparable injury in this case is, like sales representatives or distributors, too remote to confer standing.” Verso’s Opp’n at 10. According to Verso, courts have rejected “similar antitrust claims by suppliers, distributors and other third parties that acquisitions violate Section 7 of the Clayton Act or the other antitrust laws — even if the underlying merger or acquisition would allegedly violate the antitrust laws.” Id. (citing Serpa Corp., 199 F.3d at 12; Alberta Gas Chems. Ltd. v. E.I. Du Pont De Nemours & Co., 826 F.2d 1235, 1240-42 (3d Cir.1987); John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 500 (9th Cir.1977)) (emphasis in original).

Furthermore, Verso distinguishes the two cases relied on by Plaintiffs for the proposition that loss of employment is a suitable antitrust injury, arguing that “in both cases the alleged restraint was directed at the labor market, not the .employer.” Id. at 11. It argues that in Tugboat, Inc.,

[t]he court explicitly refused to find that employees of a company that was the victim of an antitrust conspiracy could separately recover for antitrust claims due to reduced work opportunities. Rather, the court recognized that the employees had standing “not because they suffered injuries as a result of then-employer being victimized by violations of the antitrust laws, but because the conspiracy in this case was aimed at the employees as much as it was aimed at the employer.”

Id. (quoting Tugboat, Inc., 534 F.2d at 1177). Similarly, Verso asserts that in Eichom, “the antitrust injury flowed from the challenged restriction directly constraining the plaintiffs employment opportunities; it was not an indirect result of the sale of a facility.” Id. (citing Eichorn, 248 F.3d at 142).

b. 15 U.S.C. § 1

In response to Plaintiffs’ contention that Verso’s decision to shut down the Mill was done as a part of the merger agreement (i.e., “Verso had to obtain the written consent of NewPage ...”), Verso points out that section 5.6(c) of the merger agreement provides that ‘Verso and NewPage agreed to obtain written consent from each other before selling any asset, where such action was taken in order to gain DOJ approval.” Id. at 12-13 (emphasis in original). Thus, in Verso’s view, because the sale of the Bucksport Mill was not done to gain DOJ approval, the DOJ knew of Verso’s plans to shut down the Mill, and section 5.6(c) is the sole basis upon which Plaintiffs must be relying, they “have identified no evidence, either in the Complaint ... or in support of their Motion, even to suggest plausibly, much less prove, that Verso and NewPage reached an agreement to close the Bucksport mill.” Id. at 13-14.

c. Remaining Antitrust Claims

Verso also contends that Counts 2, 3 and 4 in Plaintiffs’ Complaint must fail. Id. at 14. First, regarding Plaintiffs’ claims under 15 U.S.C. § 2, Verso argues that

1) [it] made a legitimate and unilateral business decision to close the Bucksport mill; 2) market conditions preclude Verso from being able to exercise market power now that the mill is closed and this will not change when it acquires NewPage; and 3) the core challenged conduct (the closure of an unprofitable paper mill) can never give rise to a claim of attempted or actual monopolization (or a conspiracy to achieve [the] same).

Id. at 14-15. Among other arguments, Verso asserts that “[a] company cannot hope to gain monopoly power by reducing its own production capacity. If anything, Verso’s decision to close the Bucksport mill should increase competition in the market by creating additional opportunities for Verso’s competitors to take business from Verso.” Id. at 16 (emphasis in original). Furthermore, Verso cites International Railways of Central America v. United Brands Co., 532 F.2d 231, 239-40 (2d Cir.1976) for the proposition that “[c]ourts have refused to use the antitrust laws as a blunt instrument to force companies to continue unprofitable operations,” even one that is in a position of monopolization. Verso’s Opp’n at 16-17.

Second, regarding Plaintiffs’ claims under 15 U.S.C. § 18, Verso argues that those claims must fail as well because “AIM is not a competitor of Verso. It also is not a supplier of paper-making inputs or a distributor of paper.... Market power cannot be created in the relevant market by the sale of an operation to a company that is not a competitor, supplier, or distributor in the market.” Id. at 17-18. In other words, there has been no “horizontal acquisition of a director competitor” or “a vertical acquisition” of a supplier in the distribution or production chains. Id. at 18.

Finally, Verso agrees that construction of Maine antitrust laws should be done by comparing to the federal counterparts, and therefore, concludes that “Plaintiffs fail under their Maine antitrust law theories for the same reasons they fail under federal law.”- Id. at 18-19. Furthermore, it contends that “Maine’s state laws do not provide for a private right of action for injunctive relief under either 10 M.R.S. § 1102 or 10 M.R.S. § 1102-A” because that form of relief is left solely to the Maine Attorney General under 10 M.R.S. § 1104(2). Id. at 19 (citing Melnick v. Microsoft Corp., Nos. CV-99-709, CV-99-752, 2001 WL 1012261, at *4 (Me.Super. Aug. 24, 2001)).

2.Irreparable Harm Caused to Plaintiffs if the Preliminary Injunction was Denied

Verso argues that no irreparable harm will result by denying the preliminary injunction because “the Bucksport mill has already closed. Granting the relief Plaintiffs seek (blocking the sale of the Bucks-port mill to AIM and requiring Verso to continue to spend money on the mill for 6 months) will not cure their claimed irreparable harm.” Id. In addition, Verso contends that Plaintiffs have not presented any evidence that a buyer would emerge during that time period that would want to continue operating it as a paper mill, nor that the workers would be willing to and capable of coming back to work after six months. Id. at 20. Verso concludes that “their claim defies both market realities and common sense.” Id.

3.The Balance of Hardships

Verso asserts that “[t]he balance of equities in this case weighs heavily against granting Plaintiffs’ Motion.” Id. For example, Verso points out that it may potentially lose the $60 million committed by AIM to purchase the Bucksport Mill (as noted in AIM’s Opposition), and “[e]ven if Verso can find another buyer for the site, it is impossible to estimate today what a now unknown purchaser would be willing to pay for the site.” Id. As a result, Verso argues that it will suffer “loss of liquidity,” which will harm the former Bucksport Mill employees entitled to their remaining severance payments due under the Consent Order. Id. at 20-21. In other words, the employees would have to wait until March 2015 before they receive those payments. Id. at 21.

4.The Effect on Public Interest

Lastly, Verso argues that granting the relief sought by Plaintiffs would not benefit the public interest because it “will interfere with the efficient operation of the free market.” Id. In addition, the town of Bucksport could be adversely impacted because “AIM intends to pursue potential strategic uses for the mill, which would present a substantial economic opportunity for the public.... If AIM abandons the transaction due to an injunction, the potential development of Bucksport is lost and may not be recovered.” Id. at 22 (citing McGlin Decl. ¶ 17).

D. Plaintiffs’ Corrected Reply

Plaintiffs begin by asserting that “Verso made the intentional decision to sell the Mill to a scrapper and reject any bids from companies that wanted to keep the Bucks-port Mill running.” Pis. ’ Corrected Reply at 2 (citing Second Tucker Decl. at 4; Russell Decl. ¶ 9). In Plaintiffs’ view, these companies “need to have the chance to make their bid, with the knowledge that it will be taken seriously, and they will have the opportunity to conduct due diligence.” Id. at 3. They argue this will not happen, however, unless the Court orders “Verso to accept any bid for the plant above $58 million from a paper manufacturer.” Id. Citing Local 1330, United Steel Workers of Am. v. United States Steel Corp., 631 F.2d 1264, 1282-83 (6th Cir.1980), Plaintiffs contend this was a “remarkably similar case,” in which the Sixth Circuit reversed the district court’s denial of an injunction “where U.S. Steel refused to consider any bids from the Steelworkers Union, that was interested in purchasing the factory where they worked.” Pis.’ Corrected Reply at 4.

Returning to standing, Plaintiffs contend that Verso only challenges their standing as “suppliers of labor” but not as “consumers, because the case law is clear on that point.” Id. at 12. Citing Blue Shield of Virginia v. McCready, 457 U.S. 465, 472, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) for the proposition that 15 U.S.C. § 15 protects “all who are made victims of ... forbidden practices,” Plaintiffs contend that “Verso does not address why [they] should not be considered ‘victims’ of the forbidden practices alleged in the Complaint.” Pis.’ Corrected Reply at 12. In response to Verso’s contention that “Plaintiffs’ alleged injury flows from the closure of the mill, not from a reduction in competition in any market,” Plaintiffs counter that their injuries come from “multiple acts,” including (1) the Mill’s closure, leading to employees being laid off; (2) the threat of the Mill being torn down, which will lead to employees being unable to return; (3) Verso’s refusal to sell to one of its competitors, which will lead to employees being unable to return; (4) the reduction in competition that has already occurred; and (5) price increases for groundwood paper that have already occurred. Id. at 13-14. Therefore, in Plaintiffs’ view, they have standing both as “indirect purchasers” and as employees. Id. at 15.

Plaintiffs turn to recent developments regarding the DOJ’s findings. Id. Plaintiffs opine “that the DOJ has not analyzed whether the sale of the Bucksport Mill to AIM would lessen competition or tend to create a monopoly, because that transaction was not submitted to them for review. The only transaction that was submitted ... was the acquisition of NewPage by Verso.” Id. According to Plaintiffs, this is because “deals valued at $75 million or more” are the ones that require pre-ap-proval from the DOJ, and because the Bucksport Mill sale was less, no approval was required. Id. However, they quote the Competitive Impact Statement to support their argument that “ ‘the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.’ ” Id. at 16. Plaintiffs also submit that the “DOJ simply accepted Verso’s self-serving assertion that it had intended to close the Mill; and on this basis treated Bucksport as if it simply did not exist.” Id. (citing Competitive Impact Statement at 3 n. 1).

Plaintiffs assert that there are “anticom-petitive effects of permanently eliminating the Bucksport Mill from the market for coated printing papers.” Id. at 21. According to them, before the Mill closed, “it was a source of actual competition in coated groundwood paper and a source of potential competition in other various ... types of coated printing papers (if the machines were adapted to produce other types of paper).” Id. (emphasis in original). Plaintiffs cite an array of caselaw for the proposition that preservation of “potential competition” is an antitrust issue. Id. at 22-23.

They also appear to change their argument regarding the percentage of control Verso will have following the completion of its merger with NewPage. Compare Pis.’ Mot. at 11-12 (arguing that completion of the merger will mean that Verso controls “more than fifty percent (50%) of the North American coated paper market”) with Pis.’ Corrected Reply at 20 (explaining that “the combined Verso-NewPage company has at least 38.2% of North America[n] capacity before the Bucksport closure,” and “35.8% of North American capacity” after its closure, not including imports for either figure). According to them, “from Jan. 2014 to Jan. 2015, Verso’s share of the market has jumped from 13% to 35.8%.” Pis. ’ Corrected Reply at 20.

Next, Plaintiffs point out that it is undisputed that Mr. Castonguay stated publicly that Verso would not sell the Bucksport Mill to one of its competitors, and Verso has not refuted it. Id. at 25. In addition, Plaintiffs argue that because Verso employed a broker that “has no expertise in selling paper mills and is only utilized to broker deals for energy plants,” this represents “strong evidence” that Verso had no intention of selling the Mill to a competitor. Id. at 25-26. Furthermore, Plaintiffs believe that the “quick sale” between Verso and AIM suggests that Verso had no interest in hearing bids from other potential bidders. Id. at 26. Despite Mr. McGlin’s declaration, explaining that AIM. has the right to sell the Mill to whomever it wants once the deal is completed, Plaintiffs opine that “AIM would not want to alienate future customers by selling the Bueksport Mill to a competitor of the merged Verso-NewPage entity. Then they would never be hired again to scrap a productive facility.” Id. at 28.

Plaintiffs assert that Verso’s merger with NewPage was “the only reason that Verso decided to close Bueksport,” notwithstanding contrary Verso declarations. Id. at 38. To support their argument, Plaintiffs point to the timing of the Bucks-port Mill closure in relation to the DOJ review. Id. at 82-33. In summary, Plaintiffs assert that