Full opinion text
OPINION MURRAY M. SCHWARTZ, Chief Judge. There are several motions now pending before the Court in this case (the “Coke case”) and in two other cases (C.A. Nos. 83-95 and 83-120, the “diet Coke cases”), involving, inter alia, contract claims between The Coca-Cola Company (the “Company”) and certain of its bottlers (the “bottlers”). The bottlers brought the Coke case in 1981, charging that the Company had breached its agreements with them by supplying Coca-Cola syrup sweetened with fructose (high-fructose corn syrup or “HFCS”) rather than sucrose — without the bottlers’ consent. The bottlers also claim the Company has overcharged them for syrup and injured them in other ways. In part the Coke and diet Coke cases have their genesis in earlier contract litigation between the Company and then-existing “parent” bottlers in 1920 and 1921 (the “1921 litigation”). The parties resolved the 1921 litigation through consent decrees (the "Consent Decrees”), which incorporated as a judgment of this Court the amended contracts between the parent bottlers and the Company and resolved the major issue between the Company and the parent bottlers concerning the term of the contracts. The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920). In keeping with the initial ruling of the Court on the plaintiff parent bottlers’ preliminary injunction motion and prior to any decision on appeal, the Company accepted the bottlers’ position that their contracts were perpetual, rather than terminable at will. The contracts between the parent bottlers and the “actual,” or “first-line” bottlers, who were more or less the predecessors of the current plaintiffs, were also amended as a result of the 1921 litigation. The contracts now in force between the plaintiffs and the Company derive from the 1921 contracts, and as a result are perpetual as well. Consequently, this court has acknowledged, and the parties apparently agree, that the Consent Decrees retain vitality despite the intervening years and the gradual acquisition of the parent bottlers by the Company. However, several questions regarding the enforceability of the decrees by these particular plaintiffs remain. Because of these questions, and because the Court previously has ruled that the plaintiffs in all likelihood lack standing to enforce the decrees as parties, Coca-Cola Bottling Co. of Elizabethtown v. The Coca-Cola Co., (Coke IV), 654 F.Supp. 1419, 1445 (D.Del. 1987), the plaintiffs have renewed their motion to intervene in the 1921 litigation. Additionally, the Company has moved for summary judgment on certain aspects of the plaintiffs’ contract claims. In particular, the Company requests this Court to rule as a matter of law that (1) the plaintiffs are not entitled to any damages under Count One of their amended complaint (the “unjust enrichment” count); (2) the plaintiffs’ assertions concerning the construction of the term “standard Coca-Cola Bottling Syrup” in connection with Count Two (the “standard syrup” count) be rejected; (3) the applicable statute of limitations bars all or part of the plaintiffs’ claims under Count Three (the “market price” count); (4) the plaintiffs are not entitled to any recovery from the fund received by the Company in settlement of sugar industry antitrust litigation (the “Western Sugar” count); and (5) the plaintiffs lack standing to enforce the 1921 consent decrees. The plaintiffs have cross-moved for summary judgment on the Western Sugar action. Both sides agree that this issue is ripe for decision as if tried on a paper record. Accordingly, that portion of this opinion concerning Western Sugar will constitute the Court’s findings of fact and conclusions of law in keeping with Federal Rule of Civil Procedure 52. This Court has jurisdiction under 28 U.S. C. § 1332(a)(1), (c) (1982). I. BACKGROUND After more than seven years of pre-trial jousting, the cases brought against the Company by certain of its bottlers (C.A. Nos. 81-48, consolidated with No. 87-398; 83-95, and 83-120) (respectively, the “Coke ease,” and the “diet Coke cases”) have been set for trial commencing on September 21, 1988. To date, the litigation has provided the raison d’etre for no less than nine opinions, and this Court’s pronouncements alone are beginning to approach the bulk of the Saga of Eric the Red. If the parties’ briefs and appendices are included, not to mention the record, the cases take on prodigious dimensions. Although several of the previous Coke and diet Coke opinions have narrated portions of the history of the Company and its bottlers, at this juncture a full picture of that history is appropriate. The following is a composite of the factual summaries of several previous opinions. Any resemblance to those earlier summaries and to the plaintiff Elizabethtown’s brief for class certification Docket Item (“Dkt. 60”) is entirely intentional. A. The Genesis of the Bottling System To begin at the very beginning: in 1886, an Atlanta pharmacist, Dr. John Styth Pemberton, developed the formula for Coca-Cola. Soon afterward, Asa G. Candler, also a pharmacist and owner of a wholesale drug company, purchased an interest in the formula and trademark and formed The Coca-Cola Company to market Coca-Cola syrup to drugstores as a fountain beverage. The story continues in 1899, when two Chattanooga lawyers, B.F. Thomas and J.B. Whitehead, bought the rights to receive Coca-Cola syrup at a fixed price for vending in “bottles or other receptacles.” Thomas and Whitehead also received certain trademark rights. The rights conveyed to Thomas and Whitehead extended throughout the United States, with some exceptions, and were exclusive, i.e., the Company did not reserve the right to bottle Coca-Cola itself, but only retained the right to manufacture syrup for sale to Thomas and Whitehead and for distribution to soda fountains. Under the terms of the contracts with the Company, Whitehead and Thomas agreed to “establish in the city of Atlanta, as soon as the necessary machinery and buildings can be obtained, a bottling plant for the purpose of bottling a mixture of Coca-Cola syrup preparation with carbonic acid and water.” The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796, 800 (D.Del.1920) (“Coke 1920” or “Judge Morris’s opinion”) (quoting 1899 contract). Expenses relating to construction and operation of the plant were to be borne entirely by Whitehead and Thomas. They agreed to “put up in bottles or other receptacles, a carbonated drink containing a mixture of the Cola-Cola Syrup and water charged with carbonic acid gas under a pressure of more than one atmosphere.” Id. Under the contract, the syrup was to be mixed with at least one ounce of syrup to eight ounces of water. Other provisions of the contract obliged Whitehead and Thomas to provide the consumers with a “sufficient quantity” of the drink “to supply the demand in all territory embraced in this agreement,” or else forfeit certain of their rights; to buy all the “Coca-Cola syrup necessary to a compliance with this agreement” directly from [the Company]; to refrain from using substitutes for the syrup or to use the syrup in any way other than that specified; and to sell unbottled syrup only with the written consent of the Company. Id. Thomas and Whitehead formed Coca-Cola Bottling Company, a Tennessee corporation, in December 1899. Shortly after the formation of the Cola-Cola Bottling Company, Thomas and Whitehead, disagreeing about the terms of the contracts between their company and the bottlers who would actually bottle Coca-Cola (the “actual” or “first-line” bottlers), divided the business. Thomas retained the original bottling company (the “Thomas Co.”), along with the bottling business in approximately fifteen states, and conveyed rights to the bottling business in the remainder of the states to Whitehead. Whitehead and a new partner, J.T. Lupton, named their bottling company “The Coca-Cola Bottling Company” (the “Whitehead-Lupton Co.”). The Coca-Cola Company, the Whitehead-Lupton Co. and the Thomas Co. joined the “parent bottlers” in amending the 1899 agreement to reflect the new bottling company. The two bottling companies, unable to meet demand themselves and thus fulfill their obligations under the contract, contracted with actual bottlers who invested in and operated plants as well as bottled, promoted, and sold Coca-Cola in various exclusive territories assigned to them. By 1920, the amount of the investment in “physical properties” by the actual bottlers outstripped that of the Company by a ratio of five to one. Coke 1920, 269 F. at 801. Manufacture, shipment, and bottling were performed by the Company and the actual bottlers. The parent bottlers’ contribution to the process consisted primarily of recruiting actual bottlers and otherwise developing the bottling business. In 1915, the contracts between the Company and the parents were further modified to accommodate changes in the antitrust laws brought about by passage of the Clayton Act. The corresponding contracts between the parents and the actual bottlers also were modified. The Coca-Cola Company was purchased by a banking syndicate in 1919 and became a Delaware corporation, which assumed all the Georgia company’s previous obligations to the parent bottlers. From 1899 until the bottlers filed suit in 1920, several changes in the formula for Coca-Cola syrup occurred. The most important of these changes for present purposes was the elimination of saccharin from the syrup produced after 1907. Another change was the development of different formulae for fountain syrup and bottlers’ syrup. Among other differences, bottlers’ syrup includes more sugar than fountain syrup. Prior to 1906, the Company had used a combination of saccharin and sugar to sweeten the syrup. That year marked the passage of the Pure Food and Drug Act, following which the Company began using granulated sugar in lieu of saccharin. The parties agreed to an increase in the price of syrup to reflect the higher cost of the sweetener. Refined granulated sugar became the most expensive ingredient used in the manufacture of syrup. World War I severely affected the sugar market, and thus the Company’s costs of producing syrup. Among other things, the war brought rigid price controls and rationing. The Company, and its bottlers, who were also purchasers of large amounts of sugar, were permitted to buy only 50% of their requirements. At the end of the war, the removal of price controls and a severe shortage of sugar combined to produce a rise in the price of sugar from nine cents a pound in September 1919 to over twenty-seven cents a pound in June, 1920. Sugar rationing spurred experimentation with new sweeteners. A division of the United States Department of Agriculture (“USDA”) tested corn syrup and corn sugar for suitability as substitutes for conventional granulated sugar, and concluded that the substitutes “[could] be used to replace one-fourth to one-half of the amount of sugar ordinarily used [in soft drinks], thereby effecting a saving of approximately 50,000 tons of sugar a year.” Dkt. 60 at 20 (quoting research published by the USDA’s Bureau of Chemistry titled “Formulas for Sugar-Saving Sirups [sic]”). At about the same time, the Company began substituting corn syrup for sugar in order to attempt to meet demand. B. The 1920 Litigation The extreme rise in sugar prices led the parent bottlers to agree to permit the Company to pass on sugar price increases in excess of nine cents per pound to the actual bottlers. The Company then sought to enter into new contracts with the parents that would allow the Company to raise syrup prices based on the Company’s manufacturing costs. The bottlers insisted on obtaining specific information regarding the manufacturing costs. When the Company refused to disclose the cost information, offering only “the integrity and good faith of The Coca-Cola Company,” Plaintiffs’ Exhibit (“PX”) 1 at 1580, for verification, the parent bottlers rejected the proposal of flexible pricing, which precipitated a confrontation. The Company took the position that its contracts with the parent bottlers were terminable at will and the parent bottlers demanded that the Company acknowledge the perpetual nature of their contracts. The Company responded to the demand by informing the parent bottlers that their contracts were terminated as of May 1, 1920. After initially filing suit against the Company in Georgia, the two parent bottlers withdrew the suit and refiled in the United States District Court for the District of Delaware on June 1, 1920, seeking to enjoin the Company from terminating their contracts. Six first-line bottlers intervened in support of the parent bottlers. What occurred during the pendency of that litigation is described in Coke III, 654 F.Supp. at 1394-95: On June 10,1920, the parties to the Delaware litigation agreed to entry of an order requiring the Company to supply the parent bottlers’ and actual bottlers’ requirements of Coca-Cola Bottlers Syrup during the pendency of the litigation. Under the terms of the Order, the price of the syrup paid by the actual bottlers to the parent bottlers was fixed at $1.72 per gallon for 5 months (until November 1, 1920), by which time it was anticipated a final decision on the applications for interlocutory injunctions would have been rendered. The Order further provided that if the final decision had not issued by November 1, 1920, the syrup price would be increased or decreased from the $1.72 level based upon increases or decreases in the Company’s actual costs of manufacture of the syrup. During the negotiations leading to the June 10 Order, it appears the Company failed to disclose fully that it had entered into substantial long-term sugar contracts at prices near the top of the market. The bottlers were given to understand, from representations made in an affidavit filed on June 7, 1920 by Charles H. Candler, then Chairman of the Board of The Coca-Cola Company, that the Company had favorable long-term sugar contracts “very much lower than the present market price.” Charles Rainwater, in a letter to Candler dated January 14, 1921, recollected Candler’s statements to the bottlers: You represented that The Coca-Cola Company had but one written contract, which expired in about three weeks, and one verbal contract, under which the market price each Monday morning was controlling. Although the price of sugar dropped steadily from its peak in June, 1920, the price of syrup to the parent and actual bottlers under the June 10, 1920 Order remained fixed. Thus, while competing soft-drink prices fell, the retail price of Coca-Cola remained high. Actual bottlers suffered a loss in sales volume. The Chairman of The Coca-Cola Company reported that the Company’s total sales volume of syrup (which included both bottle and fountain syrup) declined 53% in September, 1920 and 50% in October, 1920, because of the high price of syrup. The bottlers expected relief on November 1, based on their understanding of the Company’s sugar contracts. Instead, with the market price of sugar continuing to fall, the Company announced a price increase for its syrup in November, 1920, in order to recoup the cost of its inventories of high-priced sugar. The Company also announced price increases in December, 1920, and January, 1921. The bottlers agreeing in the June 10 Order to a price for syrup based upon the Company’s total manufacturing cost quickly discovered they had unwittingly exposed themselves to and insulated the Company from the hazards of the marketplace. The Company required the bottlers to pay for the Company’s poor judgment in overpurchasing high-priced sugar, while it continued to receive fixed profits per gallon of syrup. Both The Coca-Cola Company and especially the actual bottlers found themselves in a precarious economic position while maintaining an increasingly antagonistic negotiating posture. The Company represented its costs of manufacture under the June 10 Order had increased because of long-term sugar contracts at high prices. The parent bottlers, in disbelief, demanded verification of the Company’s figures. The bottlers’ audit revealed discrepancies, and the Company and the parent bottlers were unable to reconcile their figures or even agree on items of overhead to be included in the cost calculation. When the Company in January 1921 announced an estimated February cost of manufacture of $1.85, the bottlers took new action. In February, a parent bottler and actual bottlers filed supplemental complaints accusing the Company of fraud in the negotiation of and operation under the Order and sought appointment of a special master to determine the syrup cost under the terms of the Order. Id. (citations omitted). In The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920), the Court granted the parent bottlers’ motions for preliminary injunctions, stating that their contracts with the Company were perpetual and that the parent bottlers had received property rights in the bottling business from the Company. See 269 F. at 816. On July 6, 1921 while an appeal was pending, the parties executed separate settlement agreements — :one between the Company and Whitehead-Lupton parent bottler, and the other between the Company and the Thomas parent bottlers. The Court formally incorporated those agreements as final judgments on October 4, 1921. The Consent Decrees amended and clarified the contracts between the Company and the parent bottlers. Paragraph 1 of the agreements declare “that the primary obligation of all parties hereto, as well as all other individuals and Bottling Companies who employ the name Coca-Cola ... is to promote the sale of Coca-Cola.” Paragraph 2 memorializes the parties’ agreement that the contracts between them “shall remain of full force and effect” and “be perpetual,” and provides that the parent bottlers must obtain the consent of the Company to any assignments made under the contract. The third paragraph establishes a mechanism by which “either party” may “demand arbitration” in the event of “abnormal or burdensome conditions.” The fourth paragraph governs forfeiture, and applies expressly to actual bottlers as well as parent bottlers. Paragraph 5 fixed the price of syrup to the parents at $1.17y2 per gallon, and established a formula to accommodate changes in the price of sugar. The parties designed the pricing formula so that it would be triggered when the price of sugar rose above seven cents per pound. For every increase in the price of sugar above seven cents/pound, the bottlers agreed to pay six additional cents per gallon of syrup. The pricing formula was “to include all possible increases in the cost of producing such syrup” by the Company, other than those resulting from arbitration. Paragraph 6 lays out the obligation of the parent bottler to sell to the actual bottlers at a maximum price of $1.30 per gallon of syrup, “[i]n order to promote the sale of Coca-Cola and enable the actual bottlers to compete with other beverages.” The actual bottlers’ price increased on the same basis as that set forth in paragraph 5. Paragraph 7 delineates the method of calculating the market price of sugar. The parties agreed that the price would be determined quarterly, the first seven days of each quarter, “by averaging the market price of standard granulated sugar ... as quoted at [the ten largest domestic refineries].” Paragraph 10 contains the Company’s promise that “the syrup sold and furnished by it to the party of the first part [the parent bottler] is to be high grade standard Bottlers Coca-Cola Syrup.” Paragraph 10 also provides that the syrup furnished to the bottlers “shall contain not less than five and thirty-two one hundredths (5.32) pounds of sugar to each gal-Ion of syrup.” C. 1921-1980 Following the 1921 settlement, the Company gradually acquired all the parent bottlers and subparent bottlers and assumed their obligations to the actual bottlers. By 1975, the Company had completed the acquisitions. In 1978, the Company proposed amendments to the bottlers’ contracts to substitute a new formula for pricing syrup using a “sugar element,” a “base element,” and the Consumer Price Index. The amendment “also contained a provision that in the event the Company modified the formula of Coca-Cola Bottlers Syrup to replace sugar with ‘another sweetening ingredient,’ the resulting savings would be passed through to amending bottlers.” Coke III, 654 F.Supp. at 1395. From 1978 until 1987, when the Company withdrew the proposed amendment, a large majority of the bottlers accepted the proposal and modified their contracts. Out of an original group of 102 bottlers, only 42 actual bottlers remained in the litigation by the time of trial of the class issues in 1983, and only 30 now remain. The remaining bottlers continue to purchase syrup and bottle Coca-Cola under the 1921 contracts or contracts that closely resemble those original agreements. The Consent Decrees contain a provision setting the price of syrup to the bottlers according to a formula which is based upon the “market price” of sugar “as quoted at the refineries by the ten refineries operating in the United States ... at the time, having the largest capacity of output.” Consent Decrees, ¶ 7. The impetus for the “market price” term came from the bottlers’ disastrous experience with the Company’s sugar purchases following World War I and the first several months of the 1920 litigation. The objective served by tying the syrup price to market price was twofold: (1) to transfer from the bottlers to the Company the economic risks associated with long term sugar purchases; (2) to provide an objective verifiable price for the cost of sugar. Coke III, 654 F.Supp. at 1408. In the period immediately following the entry of the Consent Decrees, the parties disagreed over whether the syrup should be priced at the “quoted,” or “list,” price, or the actual selling price. This disagreement went unresolved. The Company’s later practice, as reflected in a memorandum from a Company vice president to the head of the Company’s Purchasing Department, see Coke III, 654 F.Supp. at 1416, was to use the actual selling price rather than the higher list price. The Company determined actual selling prices through inquiries of the refiners. The Company discontinued this practice in 1969, when it began using official list prices. Since 1969, in making inquiries of refiners, the Company has requested their “official list prices,” which then form the basis for the market price calculation. In January 1980, the Company started using a new sweetener, high-fructose corn syrup, or HFCS-55 (“HFCS”), in place of granulated sugar made from cane or beets (“sucrose”). HFCS is made “by hydrolysis of corn starch by chemical enzymes.” Dkt. 60, at 50. At first, HFCS constituted fifty percent of the sweetener used in the syrup. Later, the Company dropped sucrose from the syrup altogether. The Company describes the decision to substitute HFCS as having been “reached only after years of research and extensive testing confirmed that this improved version of HFCS was indistinguishable from sucrose when used in Coca-Cola, and that there would be no decline in either the quality or the sales of Coca-Cola if it were used.” Defendant’s Brief in Support of Motion for Partial Summary Judgment, at 13 (Dkt. 798). The Company sold HFCS-sweetened syrup to both amended bottlers, i.e., those bottlers that had accepted the 1978 contract amendment, and unamended bottlers operating substantially under the 1921 agreements. Although the amended bottlers received a “pass-through” of the savings to the Company from the use of HFCS, which is cheaper than sucrose, whereas the unamended bottlers did not, the syrup price paid by amended bottlers still exceeded that paid by unamended bottlers. D. 1980-1988 Early in the 1960’s, the Company introduced TAB, a diet cola drink. TAB was sold under a separate agreement from the existing contracts. Although by 1983 TAB had built up the biggest market share of any diet soft drink, the Company determined that its market appeal was too narrow to keep up with the rapid expansion in the diet market. Accordingly, the Company created a new product, diet Coke, the name of which “was chosen carefully and focused on the descriptive nature of the word ‘diet’ and the tremendous market recognition of ‘Coke.’" Diet Coke I, 563 F.Supp. at 1127. It was the surprise introduction of diet Coke, coupled with the Company’s insistence that the bottlers give up rights to recover alleged overcharges while a court determined whether such rights in fact existed, that led to the diet Coke litigation now before this Court. In 1985, the Company tried to substitute a different formulation of Coca-Cola, called “new Coke,” for the old Coca-Cola. When the market reacted unfavorably to the demise of “old” Coke, the Company resumed producing it, under the name “Coca-Cola Classic,” or “Classic Coke.” When the Company first introduced new Coke, it was sold under the terms of the existing contracts as Coca-Cola bottlers’ syrup. Upon the reintroduction of classic Coke, there were for the first time two Coca-Cola bottler’s syrups recognized by the Company: one for new Coke, and one for classic Coke. The Company, however, is selling the syrup for classic Coke under the previous contract terms “ostensibly” without waiving the right “to decide at a later time that the syrup for Coca-Cola Classic is not Coca-Cola Bottler’s Syrup, even though the identical syrup was considered Coca-Cola’s Bottler’s Syrup” prior to the introduction of new Coke. Diet Coke III, 107 F.R.D. at 291. Also in 1985, the Company further extended its product line with the advent of caffeine-free Coke and caffeine-free diet Coke, Cherry Coke, and, later, diet Cherry Coke. E. Previous Coke and Diet Coke Decisions This Court’s nine previous published opinions in this case and in the diet Coke cases warrant attention in assessing the parties’ arguments. A synthesis being too ambitious a project at this juncture, the following quick overview will aid the discussion. Coke I, 95 F.R.D. 168 (1982): Coke I denied the plaintiff Elizabethtown’s motion for class certification on the principal grounds that because, at that time, as many as thirty-two different states’ laws could be involved, the commonality requirement of Federal Rule of Civil Procedure 23(a) was not satisfied; and because of the necessity of considering different courses of dealing peculiar to individual bottlers, the typicality requirement of Rule 23(a) was not met. In reaching these conclusions, the Court held that the plaintiff lacked standing to enforce the Consent Decrees given the clear statement of the Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 1932, 44 L.Ed.2d 539 (1975) that non-parties to consent decrees may not directly enforce those judgments, “even though they were intended to be benefited by it.” Coke II, 98 F.R.D. 254 (1983): The opinion on reargument, Coke II, retreated from Coke Vs denial of class certification and the standing holding. With regard to commonality, the Court concluded: In the instant case there are common issues of law and fact as to each of the plaintiffs claims. Enforcement of the 1921 Consent Decrees and the Bottler’s Contracts, is alleged to be premised, in part, upon the meaning of certain provisions of the Consent Decrees regarding the pricing and composition of Bottler’s Syrup. Plaintiff alleges that these provisions were incorporated into all of the Bottler’s Contracts and concludes that interpretation of the Consent Decrees is essential to interpreting the Bottler’s Contracts. The unjust enrichment claims in Counts I, III and IV are also based, in part, upon the pricing and composition provisions of the Consent Decrees and the Bottler’s Contracts. Since resolution of all of these common questions of law and fact will affect all or a significant number of the putative class members, the plaintiff has satisfied the commonality requirement of Rule 23(a)(2). Id. at 265 (footnote omitted). The plaintiff’s showing under the typicality requirement was also reassessed. This reassessment revealed that, although not all of the proposed representative’s claims would be typical of those of putative class members, certain of the claims were typical. Plaintiff alleges that the meaning of terms in the Bottler’s Contracts regarding the composition and pricing of Coca-Cola are derived, at least in part, from the 1921 Consent Decrees. Many of these contracts were entered into immediately after entry of the Consent Decrees as final judgments.... Moreover, most, if not all, Bottler’s Contracts state that the bottler is assigned certain rights and privileges from its parent bottler— the Thomas Co. or the Whitehead Co.— that the parent originally received from Coca-Cola in a series of contracts, including the Consent Decrees, during the period between 1899 and 1921. Therefore, interpretation of relevant provisions regarding the pricing and composition of the 1921 Consent Decrees will likely be necessary in determining the meaning of similar provisions in the Bottler’s Contracts .... Id. at 266-67 (footnotes and citations omitted). Additionally, the Court withdrew its standing holding, concluding that “the Court need not have decided these issues in that they were not necessary for a determination of the class certification motion then before the Court.” Id. at 264. The standing issues were left to “be addressed when and if a decision is necessary for the proper adjudication of this ease.” Id. Diet Coke I, 563 F.Supp. 1122 (1983): The next installment in the developing epic involved the related diet Coke cases — one brought by bottlers operating under unamended contracts derived from the Consent Decrees (C.A. No. 83-95) and one brought by bottlers who have accepted the Company’s 1978 proposal and amended their contracts (C.A. No. 83-120). The plaintiff bottlers in these two unconsolidated cases brought preliminary injunction motions requesting that the Court order the Company to “allow them to purchase diet Coke syrup without waiving their interim rights.” Id. at 1130. When the Company introduced diet Coke, it took the position that diet Coke was not covered by the existing contracts and that the bottlers would have to negotiate new agreements. Pending agreement, the Company offered the new syrup only to bottlers willing to forgo their claims to the syrup at the existing contract price for Coke syrup until there was a judicial determination that diet Coke syrup fell within the scope of the old contracts. The bottlers assert that they are faced with a Hobson’s choice: accede to the demands of the Company and accept diet Coke pursuant to the Temporary Amendment thereby waiving any right to recover any overcharges during the time the Temporary Amendment is operative; or reject the terms of the Temporary Amendment and thereby lose the opportunity to market diet Coke, incur the wrath of frustrated customers, and risk potential loss of shelf-space and destruction of their businesses. Id. at 1129-30. Noting that the product covered by the original contracts in all likelihood must contain 5.32 pounds of sugar, because of the language in paragraph 10 of the Consent Decrees, the Court found that diet Coke syrup was “not likely to be encompassed by the contractual phrase Bottler’s Coca-Cola Syrup as employed by the 1921 Consent Decree.” Id. at 1135. Thus, the unamended bottlers failed to demonstrate probability of success on the merits in this regard. The Court also determined that the unamended and amended bottlers’ argument based on their trademark rights (which are identical) failed to establish a probability of success on the merits. Id. at 1139. Unlike the trademark rights, the contractual rights of the amended bottlers differ in a material respect from those of the unamended bottlers. The 1978 amendment contains a provision which states: In the event that the formula for Bottle Syrup is modified, in whole or in part, with another sweetening ingredient, the Company will modify the method for computing the Sugar Element in such a way as to give the Bottler the savings realized as a result of such modification .... Id. at 1139. The amended bottlers argued that the provision encompasses diet Coke syrup. The Company countered that the clause does not apply because diet Coke is not a modified version of Coke, but rather is a new product. The Court accepted the amended bottlers’ position for the purposes of the preliminary injunction, but found no irreparable injury, because the loss of “additional profits ... cannot constitute irreparable harm under the applicable standards.” Id. at 1141. Diet Coke II, 637 F.Supp. 1220 (1984): Diet Coke II denied the amended bottlers’ motion for summary judgment on their contractual entitlement to diet Coke based on the existence of a genuine issue of material fact regarding the provisions of the 1978 amendment. Diet Coke III, 107 F.R.D. 288 (1985): The third diet Coke decision concerned the motion by both amended and unamended bottlers for disclosure of Company formulae for certain syrups. The Court found that (1) the formulae were trade secrets; but (2) the balancing of plaintiffs’ need for the information against the injury to the Company favored the plaintiffs. Given the Company’s position that Coke and diet Coke are two separate products, the Court therefore ordered the Company to disclose the formulae for diet Coke, new Coke, and classic Coke, but denied the request for disclosure of the formulae for TAB and certain experimental colas. Diet Coke IV, 110 F.R.D. 363 (1986): Diet Coke IV arose from the Company’s refusal to comply with the order of Diet Coke III. The Court responded by entering a preclusion order giving “plaintiffs ... the advantage of every possible inference that fairly could be drawn from the formu-lae evidence sought.” Id. at 369. “The governing principle was that the preclusion order must in no way prejudice plaintiff and in no way benefit defendant.” The Court further held that the “plaintiffs are entitled to compare the entire formulae, and to obtain a favorable comparison of the entire formulae. Defendant may not qualify those comparisons by noting the difference in sweetener.” Id. Coke III, 654 F.Supp. 1388 (1986): Coke III set forth the Court’s findings of fact and conclusions of law subsequent to trial of two certified class issues. In particular the trial revealed that the term “sugar” as used in the Consent Decrees meant “refined granulated sucrose from cane.” Id. at 1406. The term must be interpreted to include sucrose from beets as well as cane, however, because the Company had begun using beet sugar in 1941 and continued to use it with the bottlers’ knowledge and without their objection. Id. at 1403. The second certified issue, concerning the meaning of “market price” as used in the decrees, was resolved in favor of the following interpretation: “Market price” as used in paragraph 7 of the Consent Decrees means an average of the price per pound for refined granulated sugar of the grade and in the packaging unit in which it is principally sold to industrial users f.o.b. the refinery, as made known to such industrial users upon inquiry prior to sale by the ten refineries in the United States with the largest capacity and output during the first seven days of each calendar quarter, less any discounts, allowances, or rebates from that price which are available to industrial users or are made known to them upon inquiry prior to sale.... Id. at 1418. The Court specifically excluded from the definition the Company’s actual cost of purchasing sugar, which might be even lower than the verifiable prices, due to the Company’s negotiation with sugar suppliers. Coke IV, 654 F.Supp. 1419 (1987): Coke IV mainly treated the bottlers’ motion for summary judgment on the issue of their standing to enforce the Consent Decrees. After carefully considering the question of the plaintiffs’ ability to enforce the decrees directly as parties, the Court held that (1) the unamended bottlers that trace their contractual rights to the Whitehead-Lup-ton Company had standing to enforce the decrees directly; but (2) bottlers whose contracts derive from the Thomas Company lacked standing, except with respect to certain rights under the decrees which were assigned to them by the parent bottler. Coke V, 668 F.Supp. 906 (1987): The last episode in the nine-part series resulted from the plaintiffs’ preliminary injunction motion brought to prevent the Company from implementing its announced policy to provide the bottlers with sucrose-sweetened syrup exclusively, rather than HFCS-sweetened syrups. The plaintiffs also sought to amend their complaint to drop their request for sucrose syrup and to add a request for an injunction directing the Company to supply HFCS-sweetened syrup and to supplement their complaint to include claims made in the motion for preliminary injunction; i.e., to allege “an additional breach of the Consent Decrees and Bottler’s Contracts based on the Company’s decision in March, 1987 to supply sucrose syrup to unamended bottlers.” Id. at 922. The theory of the new claim is that “HFCS-55 syrup is ‘standard Bottlers Coca-Cola Syrup,’ not sucrose syrup, and the threatened action breaches the implied duty of good faith.” Id. II. THE SUMMARY JUDGMENT STANDARD The standard applicable to the consideration of summary judgment motions is laid out in three recent United States Supreme Court decisions: Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). These decisions refocus the summary judgment standard, clarifying the movant and non-movant’s responsibilities. The movant must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a crucial element of his or her case. The non-movant must then identify portions of the record which tend to support the allegedly unsupported element. See Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Significantly, this trilogy of cases assures the trial court that where the party bears the burden of proof on an issue, and the evidence pertaining to that issue plainly falls short of the party’s burden, summary judgment is proper. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510-11. With these principles in mind, I will turn to the parties’ motions. III. THE COMPANY’S SUMMARY JUDGMENT MOTION The Company moves for summary judgment “in whole or in part” on a number of the plaintiffs’ claims. Dkt. 798 at 4. First, the Company contends that the plaintiffs’ “unjust enrichment” theory of recovery under Count One is deficient as a matter of law because the plaintiffs sue on express contracts. Id. (“[t]he law is simply that Plaintiffs are not entitled to the relief they seek under any set of facts.”). Second, the Company asserts that it has no duty to provide HFCS-sweetened syrup to the plaintiffs in light of the Court’s prior rulings concerning the meaning of sugar and the Company’s duty to provide syrup sweetened with sucrose. If the Court accepts this argument, the Company will be entitled to summary judgment on Count Two. The Company also requests summary judgment on the plaintiffs’ prayer for punitive damages under Count Two, urging that punitive damages may not be awarded in breach of contract cases. Third, the Company contends that the plaintiffs’ claims for damages resulting from the alleged improper calculation of syrup price are barred by the applicable statute of limitations. Fourth, the Company seeks judgment on the plaintiffs’ claims to pro rata shares of the settlement proceeds which the Company received as a result of the compromise of the Western Sugar litigation. The plaintiffs have cross-moved for summary judgment on the Western Sugar claim. And finally, the Company seeks a ruling from the Court that “no Plaintiff has standing to enforce the Consent Decrees.” Dkt. 798 at 9. The plaintiffs vigorously oppose the Company’s motion. They have launched a broad defense to the motion in the form of a remarkable argument that “[a]s a result of the special relationship between the Company and the bottlers, The Coca-Cola Company owes the bottlers higher fiduciary duties than the duties associated with ordinary contracts, and must account to the bottlers for any profits obtained in breach of those duties without their consent.” Plaintiffs’ Brief in Opposition to Defendant’s Motion for Partial Summary Judgment and in Support of Plaintiffs’ Cross-Motions for Partial Summary Judgment, at 4-5 (Dkt. 811) (citation omitted). Tn addition, the plaintiffs make more specific arguments countering the Company’s position. Because the plaintiffs’ fiduciary duty theory, if valid, will affect dramatically the analysis of four out of the five major Company arguments, I will address this theory first. Next, I will address the parties’ arguments with regard to Counts One, Two, Three, 'and Four, respectively. Lastly, I will turn briefly to the standing issues. A. Fiduciary Duty The plaintiffs base their assertion that the Company and the bottlers have formed a fiduciary relationship on two grounds: (1) the wide scope of the relationship, which is “immeasurably broader than the mere purchase and sale of syrup” ; and (2) the characterization by the Company of the relationship as a “partnership.” See Dkt. 811, at 4. The effect of this fiduciary relationship between the bottlers and the Company, according to the plaintiffs, is to create obligations between the two sides which are greater than ordinary contractual duties. The Court finds the plaintiffs’ arguments concerning the existence of a fiduciary relationship largely unpersuasive. The first prop supporting the plaintiffs’ argument falls when one considers the law concerning the creation of a fiduciary relationship in the plaintiffs’ jurisdictions. For example, under California law — as the defendant correctly points out — the existence of a fiduciary relationship “arises only when the person in whom confidence is reposed acquires some control over the affairs of the other.” Walker v. RFC Corp., 728 F.2d 1215, 1221 n. 5 (9th Cir.1984). A careful examination of the law relied upon by the plaintiffs, see Dkt. 811A, exh. B (collecting state law on fiduciary relationships), fails to bolster plaintiffs’ argument that a fiduciary relationship exists between the Company and the bottlers. The majority of that law concerns what fiduciary duties are owed once the requisite relationship is found. That relationship does not exist here. The Company and the bottlers, although bound together by their common interest in promoting the sale of Coca-Cola, are arms-length bargaining parties, not partners. Other authorities relied upon by the plaintiffs likewise miss the point. For example, Amott v. American Oil Co., 609 F.2d 873, 881 (8th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980), which holds that a fiduciary relationship inheres in a franchise relationship, has been interpreted “as resting on the implied covenant of good faith and fair dealing.” Cambee’s Furniture v. Dough-boy Recreational, Inc., 825 F.2d 167, 171 (8th Cir.1987) (citing Bain v. Champlin Petroleum Co., 692 F.2d 43, 47-48 (8th Cir.1982)). These ordinary implied duties are not contested by the Company. Cam-bee’s then states that “a franchise or other ordinary business relationship does not alone create fiduciary duties.” Id. Additionally, ABA Distributors, Inc. v. Adolph Coors Co., 542 F.Supp. 1272 (W.D.Mo. 1982), which relies on Amott, characterizes the “fiduciary duty” between a brewer and its distributor as one of “good faith and fair dealing.” Id. at 1286. Accord Larese v. Creamland Dairies, Inc., 767 F.2d 716, 717 (10th Cir.1985). In Carter Equipment v. John Deere Industrial Equipment Co., 681 F.2d 386, 391 (5th Cir.1982), the court held that “[a] fiduciary relationship arises only if the activity of the parties goes beyond their operating on their own behalf and the activity is for the benefit of both.” Because the relationship between the Company and the bottlers is both independent and interdependent, the Court is willing to assume that this necessary precondition for the finding of fiduciary relationship has been met. However, the Carter Equipment court proceeds to emphasize the importance of one party “re-pos[ing] trust or confidence in [the other],” as “critical to an ultimate determination regarding the existence of a fiduciary relationship.” Id. Phillips v. Chevron, U.S.A., Inc., 792 F.2d 521 (5th Cir.1986), in discussing Carter Equipment, qualifies the language in the decision concerning the requirement that neither party in a fiduciary relationship “take selfish advantage of [the other’s] trust or deal ... in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith,” id. at 524, by stating that “[t]his generalized duty of good faith and fair dealing is, however, limited by the terms of the franchise agreement.” Id. The plaintiffs in this case, despite their long and mutually profitable relationship with the Company, are far from reposing in it complete trust and confidence of the sort which engenders a fiduciary relationship. By referring to the relationship between the bottlers and the Company as a “special partnership,” the Company has not created a legal partnership with associated fiduciary duties. The necessary indicia of a legal partnership, or for that matter of a joint venture, for the most part are absent. These indicia include one party having a voice in the management of the other’s manner of conducting business, sharing of risks, and joint control or ownership of assets. See, e.g., Circo v. Spanish Gardens Food Manufacturing Co., 643 F.Supp. 51 (W.D.Mo.1985) (distributors bringing action against manufacturer for breach of constructive partnership agreement failed to establish requisite indicia of joint venture or partnership). Although through contractual provisions the Company exercises some control over the bottlers’ methods of bottling the product, this control is distinct from control over management of the bottlers’ affairs. Similarly, the common fortunes of the Company and the bottlers may ride to an extent on the demand for Coca-Cola, but this does not amount to risk-sharing of the requisite kind. Finally, with the possible exception of certain trademark rights, the parties do not jointly own any assets. See Satellite Financial Planning v. First National Bank of Wilmington, 633 F.Supp. 386, 401 & 401 n. 20 (D.Del.1986) (neither partnership nor joint venture created absent association “to carry on a business for profit as co-owners”) (relying on Delaware law). One must strain to find a resemblance between the parties’ relationship and a partnership: if a faint resemblance does exist, it is far too weak to give rise to special fiduciary duties. Moreover, there is an arguable resemblance to a partnership in any franchising or manufacturer/distributor relationship. Courts in the plaintiffs’ states which have addressed the question have generally found that such relationships are not fiduciary, although the conventional implied duty of good faith and fair dealing applies to these relationships. See, e.g., Walker v. KFC Corp., 728 F.2d 1215, 1221 n. 5 (9th Cir.1984) (applying California law); Mid-America National Bank v. First Savings & Loan Ass’n, 161 Ill.App.3d 531, 113 Ill.Dec. 367, 371, 515 N.E.2d 176, 180 (1987); W.K.T. Distributing Co. v. Sharp Electronics Corp., 746 F.2d 1333, 1336-67 (8th Cir.1984) (applying Minnesota law); Bain v. Champlin Petroleum Co., 692 F.2d 43, 48 (8th Cir.1982) (applying Missouri law); Power Motive Corp. v. Mannesmann Demag Corp., 617 F.Supp. 1048, 1051-52 (D.Colo.1985) (applying Ohio law); Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981); Picture Lake Campground, Inc. v. Holiday Inns, Inc., 497 F.Supp. 858 (E.D.Va.1980) (applying Virginia law); Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 711 (7th Cir.) (applying Wisconsin law), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984). Significantly, cases finding fiduciary responsibilities between, e.g., franchisors and franchisees, frequently arise in the context of a franchise termination where the franchisee has invested a considerable amount in the franchise. See, e.g., Atlantic Rich-field Co. v. Razumic, 480 Pa. 366, 390 A.2d 736, 742 (1978) ("The weight of commentary has argued in favor of judicial recognition that the nature of a franchise agreement imposes a duty upon franchisors not to act arbitrarily in terminating the franchise agreement.”); Shell Oil Co. v. Mari-nello, 63 N.J. 402, 307 A.2d 598, 601-02 (1973), cert. denied, 415 U.S. 920, 94 S.Ct. 1421, 39 L.Ed.2d 475 (1974), superseded by statute, see Ricco v. Shell Oil Co., 180 N.J.Super. 399, 434 A.2d 1151 (1981) (inequality of bargaining power may give rise to fiduciary relationship; where landlord/franchisor attempted to terminate lease on ten days notice as provided in lease, court found violation of public policy). Moreover, the analysis in Shell Oil appears to turn more on contract of adhesion principles rather than on the existence of fiduciary duties. Id. 307 A.2d at 602 (“[T]he provisions of the lease 'and dealer agreement giving Shell the right to terminate its business relationship with Marinel-lo, almost at will, are the result of Shell’s disproportionate bargaining position and are grossly unfair.”). In addition, the rationale underlying basic fiduciary doctrine weighs heavily against the plaintiffs’ assertion that the Company owes them “duties ... that are much higher than those that apply to ordinary business contracts.” Dkt. 811, at 34. Generally, courts in the plaintiffs’ states limit the application of fiduciary standards to situations where “one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” Pardue v. Bankers First Federal Savings & Loan Ass’n, 175 Ga.App. 814, 334 S.E.2d 926, 927 (1985) (quoting Ga.Code Ann. § 23-2-58). The dominant theme of the case law cited in the margin is that fiduciary relationships arise where one party has the power and opportunity to take advantage of the other, because of that other’s susceptibility or vulnerability. The vulnerability of the bottlers lies only in the greater economic strength and bargaining power of the Company. This disparity does not rise to a level where the bottlers are powerless; nor does it persuade this Court that the bottlers are equitably entitled to special protection because of their unique ties to the Company. In sum, the plaintiffs’ argument that the relationship between the Company and the bottlers is a fiduciary one is unpersuasive. The Court agrees, as does the Company, that the Company is under an implied duty of good faith and fair dealing. This implied duty, however, does not create the kind of strict fiduciary responsibilities alleged by the plaintiffs. Even accepting the facts as plaintiffs present them, the law simply is that no fiduciary relationship arises from such facts. Because, as the plaintiffs concede, no award of punitive damages may be sustained in the absence of a breach of fiduciary duty beyond the implied duty of good faith and fair dealing, the Court will enter judgment in favor of the defendant with respect to the claim for punitive damages contained in Count Two. B. Count One: the “Unjust Enrichment” Count Simply put, plaintiffs’ theory of recovery under Count One is that the Company wrongfully continued to charge them for sucrose-sweetened syrup while providing them with HFCS-sweetened syrup. This practice, according to the plaintiffs, deprived them “of the benefits of the economic bargain set forth in the 1921 Consent Decrees and ... their first-line Coca-Cola bottlers’ contracts, which contemplated a syrup price tied to the price of the sweetening ingredient actually used.” Supplemental and Amended Complaint, ¶ 52(b) (Dkt. 570). The plaintiffs allege that the refusal to “pass through” the savings to the Company from the use of HFCS constitutes a breach of the Consent Decrees and the bottlers’ individual contracts. The plaintiffs have characterized their Count One theory as an “unjust enrichment” theory, as has this Court. See Dkt. 570, 1152(c); Coke II, 98 F.R.D. at 261. Indeed, the defendant contends that “[rjegardless of how Plaintiffs describe it, their theory under Count One is one of unjust enrichment,” and cannot be viewed as anything but an unjust enrichment theory. Defendant’s Reply Brief in Support of its Motion for Partial Summary Judgment, at 22 n. 13 (Dkt. 815) (emphasis original). Following from that contention, the defendant argues, is the inescapable proposition that the plaintiffs are not entitled to recover on a theory of unjust enrichment because they are suing on an express contract. See Chrysler Corp. v. Airtemp Corp., 426 A.2d 845, 854 (Del.Super.1980). The plaintiffs’ respond that their “unjust enrichment” theory is actually a conventional contract theory: they contend that their expectancy interest has been damaged by the Company’s use of a lower-cost sweetener while charging for sugar. Under this theory, the bargain struck in 1921 contemplates pricing based roughly on the cost of the sweetener used in the syrup. The plaintiffs concede that “the existence of an express contract precludes an action in quasi-contract for unjust enrichment.” Dkt. 811 at 50. However, they argue, “[t]his does not mean ... that the damages to the plaintiffs’ expectation interest ... are not recoverable simply because that amount may be equal to the amount by which the Company has been unjustly enriched.” Id. The label plaintiffs (and the defendant and the Court) have previously placed on this argument, unjust enrichment, should not control. Rather, the Court must examine the actual argument the plaintiffs have been making to determine whether it is truly an unjust enrichment theory and therefore barred by the existence of express contracts. Viewed in this light, the plaintiffs’ argument, despite the misnomer, is plainly contract-based. Therefore, the Court will tolerate the shift in terminology from “unjust enrichment” to “expectancy interest.” The defendant’s second theory in support of its motion for partial summary judgment on Count One is that, even assuming a breach, the plaintiffs have not been damaged by the Company’s use of HFCS-55. The plaintiffs do not contend that HFCS affects the quality of the product or its taste. They do not claim that the Company’s use of HFCS has affected their sales or profits. Because they “have continued to pay a price for Coca-Cola Bottle Syrup which has been determined as provided by the pricing formula in their contracts (i.e., they have paid exactly the same price they would have paid had the Company used sucrose to sweeten Coca-Cola Bottle Syrup),” Dkt. 798 at 22-23, the Company insists that the plaintiffs have not suffered any damages to their expectancy interest. Like the unjust enrichment argument made by the defendant, this contention is unexceptionable, provided one takes the position that the plaintiffs contracted for syrup at a price tied to changes in the price of sugar, regardless of what kind of sweetener is used. If this position is rejected, however, the defendant’s “no damages” argument falls as well. Consequently, I will turn next to the question of what the pricing formula embodied in the decrees created: an expectancy interest or a pricing system focused on the plaintiffs’ competitive position rather than the Company’s costs. Only if the evidence shows no disputed issue of fact concerning the plaintiffs’ rights under the pricing provision will the defendant succeed in obtaining summary judgment on this point. As noted in Coke III, the Court must undertake construing the Consent Decrees, which have attributes both of judgments and contracts, by applying general contract interpretation principles. The most fundamental principle of contract construction is to ascertain the intent of the parties. See, e.g., Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. at 804. A court should consider the agreement as a whole, putting itself in the position of the parties. The first task is to look at the express terms of the contract itself. A court may also look to other indicia of the parties’ intent. These include the circumstances surrounding the making of the contract, the purpose of the parties, the course of performance under the contract, and trade usage. In applying these principles, a court must guard against inadvertently reforming a contract “under the guise of construction” by “looking too intently for means of bringing about some ultimate good, thwarting an apparent wrong, or preventing hardship_” Coca-Cola, 269 F. at 805. Coke III, 654 F.Supp. at 1397. Applying these principles to the disputed effect of paragraph 10 leads the Court to the conclusion that, while the use of a different sweetener was obviously not contemplated by the parties in 1921, a genuine and material issue of fact exists concerning whether the decrees’ pricing scheme created an expectancy interest on the bottlers’ part that the price of syrup would be linked to sweetener cost, no matter what sweetener was used. In other words, now that more than sixty years have passed since the sugar-based pricing terms were agreed upon and technological advances have made fructose in the form of HFCS-55 an acceptable sweetening ingredient, should its use in syrup sold under the contracts effect a corresponding change in the pricing provision? An equally plausible competing inference is that the bottlers insisted on receiving a high quality syrup at a verifiable price that would enable them to compete with other beverage producers and make a profit. This appears to the Court to be an inference with support in the record that conflicts (to a degree) with the plaintiffs’ theories. Consequently, the inferences raise a genuine and material issue of fact. A careful look at the Consent Decrees and the contemporaneous intent of the parent bottlers and the Company demonstrates the existence of this material issue of fact. Paragraph 10 of the decrees contains specific language concerning the content of the syrup for which the bottlers contracted that is absent from the contracts. The syrup covered by the contracts, however, probably does not differ from that described in the decrees. See Coke V, 668 F.Supp. at 916 (“The Court finds it is more likely the right to receive ‘syrup’ assigned to the unamended bottlers [in their individual contracts] includes the right to receive ‘standard Bottlers Coca-Cola Syrup’ under Paragraph 10 of the Consent Decrees.”). Paragraph 10, mandating that syrup shall contain at least 5.32 pounds of sugar, in combination with paragraphs 5, 6, and 7, protect the bottlers from pricing disasters like the one in which they found themselves during the pendency of the 1920 litigation. At that time, the Company had entered into long-term contracts for sugar at a price above the market price for sugar. Worsening matters, the Company insisted on price increases based upon the June 10, 1920, order of the court allowing pricing tied to the Company’s manufacturing costs. At the same time the price o