Full opinion text
AMENDED ORDER SANDS, District Judge. Background Defendants Engelhard Corporation (“Engelhard”) and Floridin Corporation (“Floridin”) are manufacturers and distributors of attapulgite clay. Floridin is a wholly owned subsidiary of Defendant U.S. Silica Company, and U.S. Silica is a wholly owned subsidiary of Defendant U.S. Borax, Inc. Floridin Answer ¶ 9. Engelhard owns attapulgite clay reserves in southwestern Georgia and northwestern Florida and operates an attapulgite clay processing plant in Attapulgus, Georgia. Engelhard Answer ¶ 8. Floridin also owns attapulgite reserves in similar localities of Georgia and Florida, and Floridin operates an attapulgite clay processing plant in Quincy, Florida. Floridin Answer ¶ 9. Attapulgite clay is a naturally occurring mineral that in the United States is only found along the Georgia-Florida border. Tr. 7 at 86:13 — 86:16. Attapulgite clay is also found in various foreign countries, including Spain, China, Ukraine, Senegal, India, Australia, Turkey, France and South Africa. Tr. 7 at 86:13-86:21. There are two general types of attapulgite clay: gellant quality attapulgite (“GQA”) and sorbent quality attapulgite (“sorbent clay”). Tr. 7 at 86:6-86:12. Crude GQA and crude sorbent clay are normally found together in attapulgite reserves, Tr. 7 at 88:6-88:16, with sorbent quality crude usually closer to the surface. Tr. 7 at 92:24-93-12. The two products are usually mined together, separated at the mine site, and delivered for separate processing at a processing facility. Tr. 7 at 88:17-89:16. Once processed, sorbent clay is used for its absorption qualities in products such as kitty litter. Tr. 7 at 88:4-88:12, 86:2-86:9. On the other hand, processed GQA is used as a thickener and suspension agent in such end use applications as suspension fertilizers, animal feeds, paints, drilling fluids, asbestos-free asphalt roof coatings, tape joint compounds, and molecular sieves, among other things. Tr. 7 at 86:2-86:12; PX 349; PX 350; PX 362. At the present time, only three companies mine, process and distribute GQA in the United States: Engelhard, Floridin, and Mil-white Company (“Milwhite”), which also operates its processing facility in Attapulgus, Georgia. A fourth company, Oil-Dri Company (“Oil-Dri”) operates a processing facility in Ochlocknee, Georgia in which it used to process GQA until 1993, when it discontinued such processing. Tr. 3 at 212:18-213:2. Of the three presently competing forces in the United States GQA market, Engelhard and Floridin are the largest competitors, with each holding a market share slightly above 40 percent. Milwhite controls the remaining 15 percent or so of the GQA market. Tr. 6 at 40:24-41:25. In 1993, U.S. Silica decided to leave the attapulgite business. Tr. 7 at 120:20-120:22; DX 1121. U.S. Silica offered to sell Floridin’s assets, including the Quincy plant, its associated reserves and the intangible assets of its sorbent and gellant businesses. Tr. 7 at 120:18-120:22. In order to increase profitability, Engelhard expressed interest in purchasing Floridin’s more modern processing facility in Quincy, as well as its sorbent clay business. Tr. 7 at 121:2-121:11; 135:15-169:2. Engelhard and Floridin had previously attempted an acquisition in 1987 that included Floridin’s GQA business, but the Department of Justice notified both parties that it would challenge the proposed transaction under the antitrust laws insofar as it resulted in the merger of the two companies’ GQA businesses. DX 1205. Thus, the Defendants structured the present transaction, such that Engelhard would acquire Floridin’s Quincy plant, associated reserves, and sorbent clay business, while a third-party, ITC Corporation (“ITC”), would purchase Floridin’s “GQA business.” Tr. 7 at 121:2-121:11; DX 1116. Specifically, ITC would be purchasing Floridin’s customer lists, know-how and other intangible assets of Floridin’s GQA business. Tr. 2 at 155:11-155:15. In addition, Engelhard and ITC would enter into a joint venture agreement under which Engelhard would supply ITC with GQA at cost, and the two companies would share the Quincy processing facility, but operate and compete as independent manufacturers and distributors. See DX 1115. The Department of Justice determined that the proposed acquisitions would not result in two new, independent competitors, but rather that the transaction would reduce the number of competitors in the U.S. gel clay market from three to two. Accordingly, Plaintiff brought this action pursuant to § 7 of the Clayton Act, 15 U.S.C. § 18. Plaintiff seeks a permanent injunction against the proposed Engelhard-Floridin-ITC transaction described above. Discussion Section 7 of the Clayton Act provides in pertinent part: No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital ... of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. 15 U.S.C. § 18. “The first step in any Section 7 case is to determine the relevant product market.” United States v. Gillette Co., 828 F.Supp. 78 (D.D.C.1993). See U.S. Anchor Mfg., Inc. v. Rule Industries, Inc., 7 F.3d 986, 994 (11th Cir.1993). Indeed, in order to make a meaningful determination about market power and the potential for a substantial lessening of competition as the result of a given transaction, both a relevant product market and a relevant geographic market for that product must be defined. Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 5.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962). In order to prevail, the Plaintiff must carry the burdens of proof and persuasion regarding market definition. FTC v. University Health, Inc., 938 F.2d 1206, 1217-18 (11th Cir.1991); United States v. Baker Hughes, Inc., 908 F.2d 981, 982-83 (D.C.Cir.1990); Kaiser Aluminum & Chem. Corp. v. FTC, 652 F.2d 1324, 1340 (7th Cir.1981); United States v. Idaho First Nat’l Bank, 315 F.Supp. 261, 265 (D.Idaho 1970) (stating that government must show by a preponderance of the evidence a reasonable probability of lessening of competition within a relevant market). In the present case, the government argues that the relevant product market is gel quality attapulgite clay (“GQA”) and the relevant geographic market is the United States. The Court shall first address the relevant product market. While all products compete at some general level, in three landmark cases, the Supreme Court recognized that not every possible substitute for a given product falls within the parameters of an antitrust relevant market. For every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range. The circle must be drawn narrowly to exclude any other product to which, within reasonable variations in price, only a limited number of buyers will turn; in technical terms, products whose “cross-elasticities of demand” are small. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 612 n. 31, 73 S.Ct. 872, 882 n. 31, 97 L.Ed. 1277 (1953). In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities, reasonably interchangeable by consumers for the same purposes make up that “part of the trade or commerce,” monopolization of which may be illegal. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264 (1956). The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523-24, 8 L.Ed.2d 510 (1962) (citations omitted). Over the last half century, courts have found a variety of ways to express the concepts of “cross-elasticity of demand” and “reasonable interchangeability.” In the Eleventh Circuit’s most recent pronouncement on the subject, the Court of Appeals stated: Defining a relevant product market is primarily a process of describing those groups of producers which, because of the similarity of their products, have the ability — actual or potential' — -to take significant amounts of business away from each other. U.S. Anchor Mfg., Inc. v. Rule Industries, Inc., 7 F.3d 986, 995 (11th Cir.1993) (quotation marks omitted). Within this framework, the Plaintiff has strenuously argued that pursuant to § 1.11 of the U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (1992), when determining the boundaries of a relevant product market, “the relevant inquiry is whether there exist substitutes to which a consumer would switch in response to a small but significant (i.e., 5 or 10 percent) price increase in the product in question (here, gel clay).” Postr-Trial Submission of the United States at 8. Under this test, if such a 5 or 10 percent price increase, “would not cause a sufficient number of customers to switch to other products to make the price increase unprofitable, that product ... is a relevant product market or line of commerce under Section 7 of the Clayton Act.” Id. at 5. This “5%-10%” test was critical to the testimony of Plaintiffs relevant market experts and formed the foundation of Plaintiffs case-in-ehief. See e.g., Tr. Vol 6 at 101:2-4 (Dr. Bodisch stating, “If the customers told me they would not switch away from attapulgite in response to a 10 percent price increase, I have excluded the alternative from the market”); 23:21-23:24; 26:12-26:16; 31:10-31:12; 68:2-68:6; 70:5-70:8; 74:15-74:20. However, notwithstanding Plaintiffs position that application of this test is dispositive in this ease, it must be noted that: In 1982, when the Department of Justice first announced the five-percent test, the Attorney General noted that the Merger Guidelines merely serve the purpose of determining what mergers the department will challenge. United States Department of Justice, Merger Guidelines, 1982 (Explanation and Summary) reprinted in 4 TRADE REGULATION REPORTS (CCH) ¶ 13,102, at 20,528.... Certainly, the Guidelines are not binding on the courts.... Olin Corp. v. F.T.C., 986 F.2d 1295, 1300 (9th Cir.1993). See F.T.C. v. PPG Industries, Inc., 798 F.2d 1500, 1503 n. 4 (D.C.Cir.1986) (“Department of Justice Guidelines offer a useful illustration ... but are by no means to be considered binding on the court”). On the other hand, the Court recognizes that in many cases faithful application of the 5%-10% test will, in fact, result in an accurate description of the relevant product market. Thus, analysis must begin by determining whether Plaintiffs application of the 5%-10% test provides an accurate picture of the relevant product market for the instant action. For the following reasons, the Court finds that it does not. As discussed above, attapulgite gel clay is generally used as a thickener or suspension agent. The evidence shows that in most of its applications GQA forms only a small percentage, anywhere from jioth of a percent to about 10 percent, of the total cost of the final product in which it is an ingredient. On average, it appears that GQA comprises 5 percent or less of the overall cost of the final products in which it is a part. In addition, each final product in which GQA is used has been specially formulated to achieve some particular end-use requirement. The evidence further shows that most, if not all, of the products in which GQA is used would have to undergo some degree of reformulation in order achieve the same end-use requirements without or with less GQA. In light of these factors, the results of the 5%-10% test may not provide the same information that they would for a direct, end-use product like pens or shoes. One must ask whether a decision not to substitute another product in place of GQA in the face of a 5 to 10 percent rise in the cost of GQA is indicative of a lack of alternate competitive products within the relevant market or simply a matter of triviality for the purchaser? For example, in a product in which GQA comprises 5 percent of the overall cost of the product, a 5 percent rise in the cost of GQA will only result in a .25 percent increase in the overall cost of the product. In other words, in a $100 product, a 5 percent increase in the cost of GQA would result in a 25 cent increase in the overall product cost. By the Plaintiffs own standards, a relevant market would consist of a product for which a sole producer could institute a small but significant price increase without losing enough customers to substitute products so as to make that increase unprofitable. While “significant” in that paradigm is clearly meant to be looked at from the viewpoint of the seller, in the present case, market realities dictate that significance must also be examined from the point of view of the purchaser. The “varying circumstances of each case” determine the cross-elasticity of demand, duPont, supra, 351 U.S. at 395, 76 S.Ct. at 1007, and in this ease, the significance of GQA price increases to purchasers must be considered in order to determine whether a negative response to the 5%-10% test reveals meaningful information about product competition or simply gives insight into market complacency. When the cost of reformulation is also taken into consideration, the Plaintiffs 5%-10% test betrays itself. The record is replete with examples of customers who purchased attapulgite exclusively from Engelhard or exclusively from Floridin. In many of these cases, simply changing GQA suppliers would require product testing and potential reformulation. See e.g., Tr. 2 at 51:24. In light of the low cost of GQA as a percentage of their overall product cost and the potential for significant qualification costs, some customers stated that they would not switch from Engelhard GQA to Floridin GQA, or vice versa, if their present supplier raised the price by 5 or 10 percent. See Tr. Vol. 5 at 126:15-126:18; [Director of Purchasing for a pesticide manufacturer] Dep. at 34:9-34:23. Pursuant to the Plaintiffs formalistic application of the 5%-10% test, such information would require a finding that Engelhard GQA and Floridin GQA constituted separate product markets. Such a conclusion would reflect the notion that only physically identical products could be in the same market. The Supreme Court has rejected such a position. See duPont, supra, 351 U.S. at 394, 76 S.Ct. at 1006-07. Plaintiffs expert witness, Dr. Frederick Warren-Boulton, discussed in his rebuttal testimony the importance of being unimportant. Tr. 11 at 18:16-18:17. The Court does not dispute the fact that a low-cost item in a high-priced, specialized formulation enjoys a certain amount of protection against cost-cutting substitutions, since the potential benefits of the minimal cost savings will often be outweighed by the fear of distorting the quality of the final product. To the same degree that this must be kept in mind as a potential source of inhibition to the free flow of competition, so too must it be acknowledged in formulating a realistic test to determine the boundaries of the relevant product market. “Indeed, the Department of Justice itself acknowledges that a higher percent increase in price is appropriate in determining the relevant product market in certain cases.” Olin, supra, 986 F.2d at 1302 (citing United States Department of Justice, Merger Guidelines— 1984 § 2.11 n. 7 (“For example, a larger increase may be appropriate[ ] if the ‘price’ to be increased is a tariff or commission that constitutes a small fraction of the price of the product being transported or sold”)). Understanding the circumstances under which most GQA purchasers operate, the answer to the 5%-10% question posed by the Plaintiff in this ease almost seems predetermined. Thus, as applied by the Plaintiff, the test tells very little about competing products and actual competition to GQA. Plaintiffs application of the 5%-10% test suffers from another shortcoming. The Plaintiff only made inquiries with current purchasers of GQA. Tr. 7 at 73:6-73:13; Tr. 11 at 90:10-90:19. In so doing, Plaintiff ignored perhaps the best source of information relevant to the product market inquiry, to wit: those customers who have already switched to an alternate product. While Dr. Bodiseh correctly stated that such switches away from GQA may have been motivated for reasons totally irrelevant to the product market inquiry, Tr. 7 at 73:16-73:17, so too may they have been the result of price competition in combination with functional interchangeability. So again, the Court is precluded from viewing meaningful actions of consumers in the marketplace. Perhaps more importantly, by only interviewing current GQA users about products that currently employ GQA, the Plaintiffs 5%-10% test presupposes that competition can only exist at the post-formulation stage, when GQA has already been chosen as an ingredient in an end-use product. Again, this forces the customer to account for qualification and reformulation costs when responding to the 5%-10% test, which raises the problems discussed above. Further, the Supreme Court contradicted such a position in United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct.. 1738, 12 L.Ed.2d 953 (1964). In finding that glass containers and metal containers competed in a relevant product market for § 7 purposes, the Supreme Court stated: Interchangeability of use and cross-elasticity of demand are not to be used to obscure competition but to recognize competition where, in fact, competition exists.... Thus, though the interchangeability of use may not be so complete and the cross-elasticity of demand not so immediate as in the case of most intraindustry mergers, there is over the long run the kind of customer response to innovation and other competitive stimuli that brings the competition between these two industries within § 7’s competition-preserving proscriptions .... That there are price differentials between the two products or that the demand for one is not particularly or immediately responsive to changes in the price of the other are relevant matters but not determinative of the product market issue. Id. at 453^155, 84 S.Ct. at 1745-1746. The Supreme Court so held notwithstanding the fact that: [T]he machinery necessary to pack in glass is different from that employed when cans are used [or] that a particular user of cans or glass may pack in only one or the other container and does not shift back and forth from day to day as price and other factors might make desirable.... Id. at 450, 84 S.Ct. at 1743. Thus, the Supreme Court contemplated that competition at the reformulation or manufacturing facility restructuring phase is relevant to the product market issue. While the Continental Can decision makes no reference to a 5%-10% test, the distinct possibility that a glass bottler might not restructure its bottling facility to accommodate canning in response to a 5 or 10 percent increase in the cost of glass is not beyond serious question. Again, this does not mean, ipso facto, that simply because a product can be used in the same end-use functions as GQA that it is in the same relevant market. Rather, it highlights the failure of the 5%-10% 0% test to account for the possibility that purchasers and potential purchasers of GQA could opt to use a substitute substance for the same function when creating a new product or retooling an old one. Such formulation stage competition could very well serve as a restraint against anticompetitive price increases by forcing GQA producers to price their products competitively or price themselves out of the market completely. While this may or may not be the case, the breadth and scope of the Plaintiffs 5%-10% inquiry in this action leaves no way of knowing the answer with any reasonable certainty. While the 5%-10% test may be very useful for the purposes of examining the hundreds of proposed transactions that the Department of Justice must evaluate yearly and may readily define the product market in many of those instances, its application to the facts in the instant case is of little use in establishing a relevant product market. Indeed, based solely on this evidence, the Plaintiff would not even meet its burden of proof on this issue. However, the Plaintiff introduced additional evidence on the issue of relevant product market during the trial of this case. The analysis must now focus on whether the full record establishes by a preponderance of the evidence that the relevant market for § 7 purposes is gel quality attapulgite clay produced in the United States. For the following reasons, the Court finds that it does not. A. Evidence of Substitution in Response to a Price Increase Above 5 to 10 Percent Was Unreasonably Discounted As previously discussed, the Plaintiff relied heavily on the Merger Guidelines 5%-10% test in concluding that GQA formed a relevant market for antitrust purposes. As a result, the Plaintiff discounted evidence in the record of substitution, or at least initiation of a substitution process, by GQA consumers in response to different levels of “small but significant price increases.” In fact, several customers indicated that substitution would occur at price increase levels at or slightly above those proposed by the Plaintiff. Of three GQA customers in the animal feed industry interviewed by Dr. Bodisch, one manufacturer indicated that he would switch from GQA to gums if GQA prices rose approximately 15%. Tr. 6 at 111:13-111:24; DX 1135 at DJ-A4-02168. A second manufacturer indicated that a rise of 10 to 20 percent in GQA prices would initiate a search for substitutes. Tr. 6 at 112:23-113:4. The third interviewee, a raw materials supplier indicated that switches away from GQA and toward increased gum usage would occur if the price of GQA went up by $10 per ton. Tr. 6 at 110:114-111:1. Even at the low end of GQA prices, around $140 per ton, such a per ton cost increase would only amount to about a 7 percent change in price. Another customer, who uses GQA in a “sound deadening” end-use product, testified in a CID deposition that his employer, [a chemical company], would likely switch to a substitute product if the price of GQA rose 10 percent, or perhaps even less. [Purchasing Manager for a chemical company] CID Dep. at 38:2-38:5. One of Dr. Bodisch’s interviewees, a GQA customer in the tape joint compound industry, stated that in the face of a 5 to 10 percent increase in GQA prices he might look into reformulation although customer satisfaction would be the number one concern. Tr. 6 at 117:4-117:16. Dr. Bodisch’s reaction to this particular customer response exemplified the rigidity of the Plaintiffs approach to defining the relevant market. Q: You told us, sir, that nobody would look at reformulation at that level of increase. Did I miss [sic] hear you? A: I think I said nobody would switch. Nobody told me definitively they would switch. Tr. 6 at 117:17-117:20 (emphasis added). Thus, even if substitution was contemplated in response to minimal price increases, Dr. Bodisch would not consider further inquiry if a cold-called interviewee was not willing to definitively commit to technical reformulation at a 5 or 10 percent increase. Other customers indicated that switching would occur at slightly higher levels. Asphalt roof coating manufacturer Jack McClellan, of DeWitt Products, testified that a 25 percent price increase would initiate a reformulation process at his company. McClellan CID Dep. at 50. (10% increase in final product cost or 25% increase in GQA cost). Robert Knauer of Benjamin & Moore Company, a paint manufacturer, testified that substitution would occur if GQA prices rose somewhere between 25 and 50 percent. Tr. 2 at 15:4-15:7. Two other paint manufacturers interviewed by Dr. Bodisch similarly indicated that a 25 to 50 percent increase in the price of GQA would be required to initiate substitution. See DX 1133 at DJ-A1-00001; DX 1133 at DJ-A1-00018. As to these and other paint manufacturers interviewed in preparation of his expert report, Dr. Bodisch testified: They told me that for an excessive price increase, defined as maybe 25 percent or so, they might start looking [sic] alternatives; but with respect to the relevant antitrust question for market definition, consistently the paint manufacturers told me they would not go to alternatives for gel clay in response to a 10 percent price increase. Tr. 6 at 74:15-74:20. In fact, Dr. Bodisch stated that a lot of the customers he interviewed in the paint industry indicated that they would switch to, or look for, substitute products if GQA prices rose in the neighborhood of 25 to 30 percent. Tr. 6 at 78:11. Of course some customers indicated that price increases would have to be even larger to induce substitution. A raw material distributor in the suspension fertilizer industry indicated to Dr. Bodisch that a 40 to 50 percent GQA price increase would be required to induce substitution in his industry. Tr. 6 at 103:-103:15; DX 1135 at DJ-A402167. A paint manufacturer indicated to Dr. Bodisch that it would take a “gigantic” price increase to prompt reformulation. DX 1133 at DJ-A1-00005. Jim Nattier, of Baroid Drilling Fluids Company, testified at trial that there is no price increase level that would induce his company to substitute for GQA in salt water drilling muds due to the belief that there are no available substitutes for GQA in such products. Tr. 4 at 109:18-109:25. Allen Harrison of UOP, a molecular seive producer, stated that similar conditions prevail in the molecular seive industry. Tr. 2 at 59:9-59:12. Thus, the evidence shows that at least some GQA customers would respond to a price increase of less than 20 percent by switching to or searching for substitute products. In addition, a greater number would switch away in response to price increases between 25 and 50 percent. Again, in light of the small role that GQA plays in most end-use products, such facially compelling numbers lose some of their force. See e.g., Tr. 6 at 78:18-78:22 (A paint industry consumer “guesses it would take at least a 25 to 50 percent price increase in gel clay before he would look for substitutes because it is only three-tenths of 1 percent of the cost of his product which translates into about one cent on a gallon of paint”). Even considering the customers who indicated that a GQA price rise would have to be gigantic to induce substitution, the Court finds that the evidence does not paint as clear a picture as the Plaintiff would suggest. The evidence appears less conclusive still when account is taken of the numerous customers who indicated that no substitution would occur at a 5 to 10 percent price increase, yet never pinpointed a price increase level at which substitution would occur. These problems are compounded by the fact that Dr. Bodisch drew his conclusions without ever ascertaining the full size of the individual end-use markets he was analyzing. For example, in relation to paints, Dr. Bodisch guessed that the number of paint manufacturers in the United States numbered over one hundred, Tr. 6 at 73:18, yet admitted that he had interviewed only six to eight paint manufacturers in preparing his expert report. Tr. 6 at 74:7. Dr. Bodisch could not conclusively identify the numbers of companies using thickeners in animal feeds, asphalt coatings, suspension fertilizers or tape joint compounds. Tr. 7 at 8:1-8:23. While knowledge of the “all thickeners” market is not a requirement, Dr. Bodisch’s testimony indicated a lack of awareness of even the total number of GQA customers in those markets. In light of the variety of responses by the fairly narrow group of customers interviewed about a hypothetical price increase, a deeper look into these product markets was required. Perhaps if no customers had been willing to substitute at any level near 10 percent, then that “cushion” would bolster the reliability of the 5%-10% test. However, that was not the case, and by ignoring evidence of substitution in response to small price changes, though greater than 10 percent, the relevant question — is there cross-elasticity of demand between GQA and other products— once again appears approached but unanswered. Without greater detail, it remains guesswork for the Court to determine whether no reasonably interchangeable, competitive products exist or whether such products exist but would not be turned to immediately by current GQA users due simply to triviality or the specter of reformulation costs. B. Evidence of Customers’ Use of or Ability to Incorporate Substitute Products Was Unreasonably Discounted The major applications for GQA are in suspension fertilizers, animal feeds, paints, tape joint compounds, asphalt roof coatings, drilling fluids, and molecular sieves. Tr. 7 at 103:9-103:19; DX 1109 at 4. The record suggests that substitute products are either currently used or available for use by GQA customers in several of the main end-use applications of GQA. The Court shall evaluate the evidence in this regard on a market-by-market basis. 1. Suspension Fertilizers a. Testimony Ted Walden, Manager of the Fertilizer Division of United Suppliers in Elora Iowa, testified by deposition on July 13, 1995. United Suppliers makes phosphate and potash suspension fertilizer and uses GQA in both. Walden Dep. 9:9-9:17. United Suppliers has purchased GQA exclusively from Engelhard for the past 11 years, Walden Dep. at 10:13. While Mr. Walden has heard of other companies using substitute products in suspension fertilizers, he has no direct knowledge of the same. Walden Dep. at 30:7-30:19. Mr. Walden stated that an increase in the price of GQA would likely result in a shift to production of dry fertilizers, which require no GQA, as opposed to an effort to reformulate. Walden Dep. at 31:17. b. Customer Calls by Dr. Bodisch In preparing his expert report, Dr. Bodisch interviewed four GQA customers in the suspension fertilizer industry. One of these customers was a distributor of raw materials to suspension fertilizer producers, and this customer indicated that 30 to 35 percent of suspension fertilizers could use sepiolite as a complete or partial substitute for GQA depending on the acidity and location of the end-use product. Tr. 6 at 102:16-103:4; DX 1135 at DJ-A4-02167. The same distributor indicated that at least one of his customers used sodium bentonite in their liquid fertilizers. Tr. 6 at 103:5-103:7; DX 1135 at DJA4-02167. However, this distributor further stated that it would take a 40 or 50 percent increase in the price of GQA to induce substitution. Tr. 6 at 103:9-103:15. Another customer indicated that sodium bentonite as well as a new polymer might work as substitutes for GQA. Tr. 6 at 104:13-104:21; DX 1136 at DJ-A4-02244. However, this customer also indicated that he knew little about the polymer and that sodium bentonite did not work as well as GQA. Tr. 6 at 104:16-104:21; DX 1136 at DJ-A4-02244. Dr. Bodisch indicated that this customer also referred to the use of gums and xanthum in suspension fertilizers. Tr. 6 at 105:2-105:3. In relation to these potential substitute products, the ensuing discourse revealed some of the problems previously discussed in this opinion. Q: Would it make any difference to the (sic) your analysis how many people were actually using the product? A: Using which product? Q: Gums or xanthum, for example? A: Only if a price increase in gel clay would induce substitution to that product. The fact that somebody else is using it does not necessarily suggest the gel clay producers could not raise price. Q: The fact that they are using it does suggests [sic] that at some point they have made the decision that it is the best product for them to use, price and other factors taken into account, does it not, sir? A: Yes, it does, for that product; but that decision has already been determined. The issue here is if gel clay prices go up, would somebody who is now using xanthum gums switch to gel clay, not somebody who has already made the decision, for whatever reason, to use xanthum gums. That’s a different question. What I am trying to identify here is what happens in response to a price increase in gel clay. Tr. 6 105:4-105:23. Dr. Bodisch more specifically explained that the 5%-10% test dictated which alternatives needed further investigation. Q: Let me ask you the question of whether you would regard xanthum and attapulgite as reasonably interchangeable if, in fact, a customer having considered both, were the [sic] choose xanthum? A: They might be substitutes but not in the context of a 5 or 10 percent price increase in gel clay. Tr. 6 106:17-106:22. Another suspension fertilizer industry customer interviewed by Dr. Bodisch indicated that he is presently considering switching from GQA to sodium bentonite, and that he was also considering a new polymer as a substitute for GOA. Tr. 6 at 107:14-107:25; DX 1136 at DJ-A4-02241. The final customer in the suspension fertilizer industry interviewed by Dr. Bodisch stated that he used GQA in all his products, was unfamiliar with sepiolite or bentonite, and that he had tried a xanthum gum product with limited success. DX 1133 at DJ-Al-00014. In light of these responses, Dr. Bodisch again looked to the 5%-10% test: Q: The answers you got, at least from this group of customers, were that other products were actually in use, were they not, but that they didn’t answer your particular question of what would happen in response to a 10 percent price increase? A: That’s right, with respect to this customer. Tr. 6 at 108:10-108:14. Thus, notwithstanding considerable evidence about current use or potential use of alternative products, Plaintiff saw no need to conduct a further inquiry in this consumer market because switching would not occur at the 5 to 10 percent range. 2. Animal Feeds a. Testimony No witnesses from the animal feed industry testified at trial or by way of deposition. b. Customer Calls by Dr. Bodisch Dr. Bodisch interviewed a distributor of raw materials to animal feed manufacturers who stated that both GQA and sepiolite could be used in animal feeds, with sepiolite capturing the majority of the sales in the northwestern region of the United States. Tr. 6 at 109:21-109:23; DX 1135 at DJ-A4-02166. This distributor further indicated that sepiolite was cheaper than GQA, and that several large companies were currently using it in formulations. Tr. 6 at 109:24-110:2. However, Dr. Bodisch testified that at least some of those companies had switched back to GQA due to poor performance, notwithstanding cheaper prices. Tr. 6 at 110:2-110:7. This distributor further indicated that gums are used for purposes similar to GQA by some manufacturers, and that he thought some would switch towards increased gum usage if the price of GQA went up by $10 per ton. Tr. 6 at 110:14-111:1. An interview with a manufacturer of animal feeds revealed that this GQA customer only used xanthum gum in liquid feeds, and that if the price of GQA went up by approximately 15% he would switch from GQA to gums in those applications where GQA is used. Tr. (Bodisch) Vol. 6 at 111:13-111:24; DX 1135 at DJ-A4-02168. A second animal feed manufacturer stated that he used both GQA and sepiolite in his formulations, and that the two products are essentially “one to one.” Tr. 6 at 111:25-112:2. In addition, Dr. Bodisch testified about another company using a substance called halocite is imported from New Zealand. Tr. 6 112:14-112:19; DX 1133 at DJ-Al-00019. The interviewee indicated that a price rise of 10 to 20 percent in GQA would initiate a search for substitutes, including the imported material from New Zealand. Tr. 6 at 112:23-113:4. Thus, in the animal feed industry, substitute products have either been used, are currently being used, or appear available for purposes of substitution. 3. Tape Joint Compounds a. Testimony Pat Hudgens, purchasing manager for Georgia Pacific’s Gypsum Division, testified by way of deposition, taken July 6, 1995. Georgia Pacific uses GQA in a variety tape joint compounds. Hudgens Dep. at 7:24-8:2. Mr. Hudgens testified that Georgia Pacific has looked at alternatives in the past, including bentonite, but has not found a substitute for GQA. Hudgens Dep. at 12:1-12:13. He added that he was unaware of any direct substitute for GQA. Hudgens Dep. at 11:21-11:22. Mr. Hudgens acknowledged that his company has really never had a need to seriously evaluate alternatives to GQA. Hudgens Dep. at 42:9-42:10. b. Customer Calls by Dr. Bodisch Dr. Bodisch interviewed one manufacturer of tape joint compound who stated that there are no substitutes for GQA in his products and that he would not switch away from GQA in the face of a 10 percent price increase. Tr. 6 at 115:12-115:18. DX 1136 at DJ-A402251. A second tape joint manufacturer, however, told Dr. Bodisch that his company currently uses liquid associative thickeners as a substitute for GQA in about 10% of its tape joint compounds, and that the two different formulations are actually marketed and sold as the same product. Tr. 6 at 115:19-116:20; DX 1136 at DJ-A4-02260. The same customer also stated that his company had looked at sepiolite and found it to perform more efficiently than GQA, but that the sepiolite was only cost efficient as a complement to GQA rather than as a substitute. DX 1136 at DJ-A4-02260. A third customer discussed the use of sepiolite in combination with GQA in the its west coast plants, and that substitution to sepiolite would be a possibility in response to a GQA price increase, so long as customer satisfaction could be maintained. Tr. 6 at 117:4-117:16. Thus, the record indicates that substitutes are in fact used or available to replace GQA, either partially or fully, in tape joint compound applications- In fact, in the case of liquid associative thickeners, the substitution has been so complete that the substitute-bearing product and the GQA-bearing product are marketed as one in the same. c. Documentary Evidence American Colloid Company issued a document touting “Aeeu-Gel F Volclay” as a replacement to GQA “in the production of asbestos-free compounds requiring a thixotrope to improve workability and spreadability.” DX 1156. The document specifically refers to use in tape joint compounds, indicates that the Volclay is a cost effective substitute to GQA. Id. An Engelhard customer call report from 1991 indicated that one customer was “embarking on new technology with an ‘Attapulgite free’ joint compound. This involves the use of organic thickeners and air float Kaolin. This produces a viscosity stable compound at a lower price than Attapulgite.” DX 1250. 4. Paints a. Testimony Robert Knauer, a consultant for Benjamin Moore & Company, a paint manufacture, testified during the trial of this action. Mr. Knauer stated that Benjamin Moore uses GQA in some but not all of its solvent-based paints. Tr. 2 at 7:8-7:9. For those paints in which GQA is an ingredient, Benjamin Moore considers qualified products from Engelhard and Floridin to be “complete alternates,” interchangeable “on a pound-for-pound basis ... without any change in the formulas.” Tr. 2 at 12:18-12:21. Mr. Knauer stated that he knew of no complete alternative for GQA in the paints which use GQA. While Benjamin Moore also manufactures water-based and latex paints, it does not use GQA in those formulations. Tr. 2 at 7:22. Mr. Knauer identified several thickeners that are used in Benjamin Moore’s solvent paints which use no GQA, including: Natrosol Plus, Tr. 2 at 27:11; wax based thickeners, Tr. 2 at 28:2; Viscotrol, Tr. 2 at 28:22; castor oil based products, Tr. 2 at 29:1-29:4; and Aerosil, Tr. 2 at 29:22. However, Mr. Knauer did not indicate that these products could replace GQA. On the other hand, Mr. Knauer did acknowledge that GQA and Ben-tone SD-1 can compete at the formulation level for use in solvent-based paints. Tr. 2 at 43:16-43:20 and Tr. 2 at 45:15-45:17. James Depew, Vice President of Purchasing for Glidden Paint Company also testified during trial. Without stating which types of paints in which GQA is used by Glidden, Mr. Depew stated that Glidden purchases about 800 tons of GQA annually. On direct examination, Mr. Depew confirmed what he had previously written in a letter, DX 1028, stating that if an increase in GQA price had an unfavorable affect on any of Glidden’s products, the company would be able to reformulate to eliminate or reduce GQA usage. Tr. 5 at 113:6-113:21. Mr. Depew also testified that, to his knowledge, substitutes for GQA were presently available, Tr. 5 at 113:25, although he was unable to identify any on the stand. Tr. 5 at 127:4-127:11. As GQA comprises about jioth of a percent of Ghdden’s overall raw material costs, Tr. 5 at 114:9-114:23, Mr. Depew did not believe that a 5 percent price increase would lead to substitution. Tr. 5 at 116:21-116:23. John McMahon, Jr., of Majemac company, a wholesale distributor to the paints and plastics industries, testified by deposition, taken July 13, 1995. Mr. McMahon stated that Majemac supplies 167 paint customers. McMahon Dep. at 5:19-5:21. He further testified that GQA is normally used in water-based paints, and that cellulosic thickeners and organoclays are largely used in solvent or oil based paints. McMahon Dep. at 8:23-9:3. However, he stated that cellulosic thickeners and organoclays could compete with GQA in water-based formulations, McMahon Dep. at 8:14-8:18, and that customers could offset increased GQA prices by adding more eellulosies and organoclays while reducing GQA usage. McMahon Dep. at 10:14-10:17. In fact, Mr. McMahon believed that GQA could likely be completely replaced, perhaps by eellulosies, but that reformulation would be required. McMahon Dep. at 22:19-22:23. b. Customer Calls by Dr. Bodisch One interviewee contacted by Dr. Bodisch stated that GQA was used in water based paints, and that his company would pass on to customers a 5 percent price increase in GQA prices. DX 1133 at DJ-A1-00001. A second GQA purchaser told Dr. Bodisch that his company used GQA as a thickener in latex paints, and indicated that it would take a “gigantic” price increase to prompt reformulation. DX 1133 at DJ-A1-00005. A third paint manufacturer indicated that there are several substances that can work well with GQA in water based and latex paints, but did not discuss any substitutes. DX 1133 at DJ-A1-00010. This customer did mention that bentones can be used in some solvent paints instead of GQA. Id. Another customer stated that he used GQA in latex paints, and he was unaware of substitutes for GQA. DX 1133 at DJ-A100018. However, this customer also noted that there had never been a need to look for substitutes, and that a 25 to 50 percent price increase would be required to prompt such a search. Id. ■ Another customer, a distributor, called by Dr. Bodisch revealed that at least one paint company was using some type of montmorillionite product as a substitute for GQA in water based paints. DX 1133 at DJ-A100021. The interviewee indicated that he did not believe that GQA competitors knew about this use of montmorillionite, and that he hoped to gain 25 percent of the thixotropic market for paints with this product in the next five years. Id. Thus, of three witnesses from the paint industry called to testify at trial or by deposition, two believed that GQA competed with and could be partially or fully replaced by alternative thickeners in response to a price increase. While the third witness did not know of alternatives for GQA in his products where GQA had already been incorporated, he did acknowledge that GQA and B entone SD-1 compete at the formulation levels. On the other hand, while one of Dr. Bodisch’s customer calls revealed some use of montmorillionite as a paint thickener, the remainder generally indicated a lack of competitive alternatives to GQA. A close reading of the testimony and customer call notes reveals an important piece of information. On the one hand, James Depew, John McMahon, and all the customers called indicated that GQA is only used in water-based or latex paints. On the other hand, Robert Knauer, who was called as a witness for the Plaintiff in its ease-in-chief, testified that Benjamin Moore only uses GQA in its solvent-based paints, and does not use GQA at all in its water-based and latex paints. Tr. 2 at 7:8-7:22. Mr. Knauer testified that in latex paints Benjamin Moore uses cellulosic and associative thickeners. Tr. 2 at 11:24-12:14. One of the Plaintiffs main contentions in this action has been that while many thickeners exist, they cannot and do not compete with GQA in those applications that use GQA. The premise of this argument is that specific applications require very specific results, and thus small variations in end-use requirements can be the enough to preclude head-to-head competition, notwithstanding simultaneous use in the same general market or specific application. However, this argument is dealt a terrible blow when the government’s own witnesses testify that some companies make all of their solvent paints without GQA, while others only use GQA in such formulations, and some companies make all of their water-based and latex paints without GQA, while others use only GQA in such formulas. The logical conclusion is that either form of paint can be manufactured at competitive prices either with or without GQA, and that the reluctance of companies to change formulas is not based upon a lack of competitive alternatives within the relevant market, but rather is the result of complacency due to the trivial cost of attapulgite in most paint formulations. c. Documentary Evidence In assessing its entrance into the fine grind market, Floridin analyzed competition in several end-use applications. See DX 1251. In evaluating the paint market, Floridin accounted for a variety of thickeners which presented different competitive problems or advantages for GQA. These thickeners included cellulosics, associative thickeners, hectorite, organoclays, and fumed silica. See id. at FL 72 000097-FL 72 000098. 5. Drilling Fluids a. Testimony At trial, Jim Nattier, Vice President of Industrial Products for Baroid Drilling Fluids Company, testified about the use of GQA in the drilling fluids industry. In the most basic terms, drilling fluids serve as a lubricant protecting the drill during the process of drilling for oil and gas. Mr. Nattier explained that there are three basic classifications of drilling fluid-fresh water, salt water and oil based. Tr. 4 at 92:10-92:16. These fluids are not interchangeable, but rather customized for particular drilling operations. Tr. 4 at 92:25. GQA is the primary constituent of salt water drilling fluids, 4 at 93:8-93:12, while bentonite is generally used for fresh water drilling fluids. Tr. 4 at 94:24-94:25. In oil based drilling fluids, both chemically altered attapulgite and chemically altered bentonite are used. Tr. 4 at 95:1-95:2. Mr. Nattier stated that the chemically modified agents cannot be substituted for GQA in salt water drilling muds, Tr. 4 at 95:5, and that he knows of no substitute for GQA in salt water drilling fluids. Mr. Nattier also explained that because drilling an oil or gas well is a several million dollar venture in which the cost of the drilling fluids are minimal, that formulation decisions are driven mainly by performance rather than cost. Tr. 4 at 100:12-100:22. In fact, Mr. Nattier stated that only a lack of GQA or the failure of GQA to perform in a particular application would cause Baroid to switch to something else. Tr. 4 at 109:18-109:25. While a foreign affiliate of Baroid uses Senegalese attapulgite in salt water drilling fluids, Baroid has never used foreign attapulgite in its salt water drilling fluids due to poor quality. Tr. 4 at 113:9-118:14. Ray Somers, Director of Procurement for Baroid Drilling Fluids, testified at trial. Mr. Somers indicated that Baroid purchased clay from Floridin and Milwhite, but not Engelhard. Tr. 4 at 128:2-128:16. Other than indicating concern about losing one of three potential suppliers of GQA, Mr. Somers had little to add to Mr. Nattier’s testimony on the issue of relevant markets in the drilling fluids industry. During a Civil Investigative Demand deposition, taken May 8, 1995, David L. Ruff, General Manager of Floridin discussed drilling fluids. Mr. Ruff stated that about 10 to 15 percent of Floridin’s business is in drilling fluids (“drilling muds”). Ruff CID Dep. at 113:2-113:4. Mr. Ruff testified that Floridin had in fact lost a salt water drilling mud customer to a synthetic-alternative. Ruff CID Dep. at 110:9-10:22. This loss was discussed in a Floridin interoffice memorandum regarding its drilling mud customer, Coastal Caisson Corporation. See DX 1226. The memo discusses the loss of approximately 300 to 400 tons per year of Florigel H-Y to Coastal Caisson as a result of a switch to a product called “Super Gel.” Id. This Super Gel is a polymer which is used in fresh and salt water and one five gallon pale[sic] has about the same efficiency as a ton of H-Y. It’s cost per five gallon is about the same as a ton of H-Y.... Other drilling firms in the area such as Smith Drilling state they too use Super Gel when required but they also use Florigel because it’s main advantage is that it is not harmed or degraded by high acid conditions or a very high pH at the drill site. Id. See also DX 1258 (interoffice memo discussing loss of salt water drilling fluid business to pre-hydrated bentonite). In his deposition testimony, Mr. Ruff added that recent technological advances have allowed customers to switch to treated sodium bentonite in salt water drilling mud applications. Ruff CID Dep. at 112:18-116:9. See DX 1179 at 2 (“Reports claim salt water mud clays (Attapulgite) have been increasing prices at a much higher rate than Sodium Bentonite and that it is now more economical to pre-hydrate Sodium Bentonite than to use Attapulgite”). b. Customer Calls by Dr. Bodisch One GQA customer called by Dr. Bodisch was a distributor of raw materials to the drilling mud industry. This distributor indicated that an increase in the cost of GQA would likely result in a shift to sepiolite or treated bentonite. DX 1133 at DJ-A100003. Dr. Bodisch noted, however, that this contact was not an engineer and thus not certain about possible technical barriers to such reformulations. Id. A drilling mud manufacturer who uses GQA in all his salt water drilling muds indicated to Dr. Bodisch that both polymers and sepiolite are alternatives to GQA in the drilling mud industry. DX 1133 at DJ-A100006. This manufacturer noted, however, that polymers are very expensive, and he did not expand on the use of sepiolite except to say that it is the “closest” to GQA. Id. The trial testimony of both witnesses for Baroid Drilling was perfectly clear — there are no substitute for GQA in salt water drilling mud applications. However, the customers called by Dr. Bodisch seemed to contradict that position, suggesting that sepiolite, polymers or treated bentonite are possible alternatives to GQA. Mr. Ruff also discussed the use of treated sodium bentonite in salt water drilling fluid applications, and this testimony was is supported by historical data. Thus again, based on the strong testimony of witnesses from one company, the Plaintiff seemed willing to overlook evidence of potential substitutes that did not fit neatly into the Merger Guidelines product market test. In addition, the testimony of Jim Nattier makes clear that the search for substitute products is not a high priority due to the minor cost of drilling fluids as a part of extremely expensive drilling ventures. Thus, the question of lack of alternatives versus market complacency again arises, but due to the Plaintiff’s reliance on the 5%-10% test, probative questions in this regard are neither asked nor answered. 6. Asphalt Roof Coatings As a general matter, all witnesses agreed that asbestos was the product of choice for asphalt roof coatings. However, due to environmental and insurance coverage concerns, the industry, in large part, has been forced to turn to alternative thickeners. a. Testimony Vanessa Whitmore, a raw material buyer for Tremco Incorporated’s roofing division testified at trial about the use of GQA in Tremco’s roofing felts and roofing adhesives. Tremco began using GQA to replace asbestos as a thickener. Tr. 4 at 152:17-152:18. Ms. Whitmore stated that Tremco uses four thickeners for its roofing products — Ben-tone-SD2, Tixogel-VZ, Minugel-AR and Attagel 36. Tr. 4 at 158:21-158:24. Bentone-SD2 and Uxogel-VZ are interchangeable with each other for Tremco’s purposes, as are Minugel-AR and Attagel 36. Tr. 4 at 159:1; 159:24-159:25. GQA is used in Tremco’s solvent-based adhesives, while TixogelVZ and Bentone-SD2 are used in solvent-free adhesives. Tr. 4 at 161:16-161:18. Ms. Whitmore testified that Tremco would not substitute for GQA in response to a 5 percent price increase because it would not be worth the trouble of reformulation. Tr. 4 at 157:10-157:21. Carl Defani, of Gardner Asphalt, a roof coating manufacturer, testified by Civil Investigative Demand deposition, taken June 6, 1995. Gardner uses GQA in its roofing cements. Defani CID Dep. at 9:21. Gardner has tested many substitutes, but has never marketed a product including these substitutes. Defani CID Dep. at 15:25-16:3. Mr. Defani believed that bentones would make a satisfactory product but not at a competitive price. Defani CID Dep. at 18:12-18:13. Sepiolite has also been tested with unsatisfactory results. Defani CID Dep. at 18:16-18:17. At the present time, Mr. Defani is not aware of any substitutes for GQA. Robert A. Bair, of ALCO-NVC, a roof coating manufacturer, testified by deposition, taken July 14, 1995. Mr. Bair testified that there are substitutes for GQA in asphalt roof coatings, Bair Dep. at 9:2-9:5, stating, “We have looked at all different types of raw materials. Could we substitute a bentonite clay or a ball clay? Yes. It really wouldn’t make the best product though.” . Bair Dep. at 9:10-9:13. Mr. Bair stated that ALCONVC has formulas using no GQA which it could produce presently. Bair Dep. at 11:22-11:24. GQA is a minor cost in ALCONVC’s final product, so a 5 to 10 percent increase would likely not initiate a substitution of GQA in its roof coatings. Jack McClellan, of DeWitt Products, manufacturers of asphalt roof coatings, testified by Civil Investigative Demand deposition, taken May 23, 1995. When asked what DeWitt could replace GQA with, Mr. McClellan responded: Attapulgus — there are different channels that we can take. There are Bentonite clays that we can look at and possibly replace, if they were cost effective. There is Sepiolite, and I’m not sure if that’s a clay or not. I’m not scientifically well endowed to know whether Sepiolite is a clay or not, but it is an ingredient that has properties which can swell and make a gel system in an asphalt product. There are precipitated silicas, fume silicas, and there might be some other things that we have investigated but I just can’t recall at this time, that you can use for gelling purposes. I take that back I do remember and recall that there are a couple of liquid ingredients that we probably can look at, that will swell upon heat activation, that may work. McClellan CID Dep. at 18:11-19:2. Mr. McClellan explained that after a decision was made to stop using asbestos, various substitute products were tested, and that sepiolite was the second choice behind GQA. McClellan CID Dep. at 25:19-25:20. Sepiolite performed identically to GQA in DeWitt’s tests, however, due to higher shipping costs for sepiolite, GQA was chosen. McClellan CID Dep. at 25:22-26:8. Mr. McClellan stated that if sepiolite were available, a replacement product could be produced “within a couple of weeks.” McClellan CID Dep. at 27:25. Mr. McClellan added that he would look to reformulation if the price of his finished product went up by 10 percent, however, it would probably take an increase of about 25 percent in the cost GQA to initiate a reformulation effort. When asked about the proposed transaction between Engelhard and Floridin, Mr. McClellan answered: My opinion is that I think competition is good, and the limit on competition is bad. But what is competition? Competition could be Attapuigus clay. The competition is also asbestos. The competition is also Bentonite clay. Competition is sepiolite, fume silica, precipitated silica. Those are all competitive things that can make decisions in the marketplace. McClellan CID Dep. at 86:9-86:16. b. Customer Calls by Dr. Bodisch The Court could not recognize which, if any, of Dr. Bodisch’s customer calls related to the asphalt roof coatings industry. Once again, the record contains compelling evidence that competitive, substitute products are presently available in the marketplace. While the evidence is by no means conclusive, it certainly suggests that a fuller inquiry was necessary to clearly define the market. However, because substitution for the most part would occur only in response to a price increase above 10 percent, no such inquiry was made. 7. Molecular Sieves a. Testimony Allen R. Harrison testified at trial about UOP’s use of GQA in molecular sieves. Mr. Harrison stated that GQA is used in about 70 to 75 percent of UOP’s molecular sieves. Tr. 2 at 56:21. He added that in sieves which use GQA, no product could substitute for the GQA. Tr. 2 at 58:13. UOP has purchased all of its GQA from Floridin for over a decade. Tr. 2 at 50:15-50:22. Prior to switching to Floridin, UOP had purchased exclusively from Engelhard. Tr. 2 at 50:22. Mr. Harrison testified that UOP has tested other products in the past, such as GQA from Milwhite, Tr. 2 at 53:17-53:25, Chinese GQA, Tr. 2 at 55:8-55:13, and sepiolite from Tolsa, Tr. 2 at 57:23-58:5, but all have failed in testing. UOP uses Kaolin in sieves which do not use GQA, Tr. 2 at 56:23, but Mr. Harrison believed that Kaolin could never be a substitute for GQA in sieves that use GQA. Tr. 2 at 57:3. Roger Allen Nash, also of UOP, testified at trial and essentially affirmed the positions taken by Mr. Harrison. b. Customer Calls by Dr. Bodisch The only GQA customer in the molecular sieve industry called by Dr. Bodisch was Roger Nash. As stated, Mr. Nash’s trial testimony reflected that of Mr. Harrison. The customer call report provides no additional information. Thus, the evidence of record, though limited to the experiences of one company, indicates that there are no competitive substitutes for GQA in the molecular sieve market. 8. Other Applications The applications discussed above are the most common applications for GQA. However, other applications exist, and the Plaintiff took a Civil Investigative Demand deposition on June 1, 1995 of a customer using GQA for such an application. [This deponent] is the Purchasing Manager at [a chemical company]. [Purchasing Manager] CID Dep. at 7:4. [This chemical company] uses GQA in two sound-deadening applications. One is a [confidential] spray and the other is a [confidential] spray, each meant to reduce the transfe