PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                  ______

           Nos. 14-2790 through 14-2795
                      ______

In re: CHOCOLATE CONFECTIONARY ANTITRUST
                 LITIGATION


     The Kroger Co., Safeway, Inc., Walgreen Co.,
           Hy-Vee, Inc., Albertsons LLC,
  The Great Atlantic and Pacific Tea Company, Inc.,
         and HEB Grocery Company L.P.,
                          Appellants in 14-2790

                  Giant Eagle, Inc.,
                         Appellant in 14-2791

             United Supermarkets, LLC,
                        Appellant in 14-2792

       Meijer, Inc., Meijer Distribution, Inc.,
     Publix Super Markets, Inc., Super Valu Inc.,
             and Affiliated Foods, Inc.,
                        Appellants in 14-2793
 Card & Party Mart II Ltd., Jones Wholesale Grocery, Inc.*,
       PITCO Foods, and The Lorain Novelty Co., Inc.,
       as representatives of the Direct Purchaser Class,
                            Appellants in 14-2794

          *Pursuant to Clerk Order of July 3, 2014

    CVS Pharmacy, Longs Drug Stores California, Inc.,
      Rite Aid Corporation, Rite Aid Hdqtrs., Corp.,
               and the Golub Corporation,
                         Appellants in 14-2795

                          ______

     On Appeal from the United States District Court
          for the Middle District of Pennsylvania
               (M.D. Pa. No.1-08-mdl-01935)
     District Judge: Honorable Christopher C. Conner
                          ______

            Argued Thursday, April 30, 2015
Before: FISHER, HARDIMAN and ROTH, Circuit Judges.

                (Filed: September 15, 2015)

Scott E. Perwin, Esq.
Kenny Nachwalter
201 South Biscayne Boulevard
1100 Miami Center
Miami, FL 33131




                             2
Steve D. Shadowen, Esq. ARGUED
Hilliard & Shadowen
39 West Main Street
Mechanicsburg, PA 17055

      Counsel for Appellants in 14-2790

Moira E. Cain-Mannix, Esq.
Brian C. Hill, Esq.
Scott D. Livingston, Esq.
Bernard D. Marcus, Esq.
Marcus & Shapira
301 Grant Street
One Oxford Centre, 35th Floor
Pittsburgh, PA 15219

Joseph T. Lukens, Esq.
Faruqi & Faruqi
101 Greenwood Avenue
Suite 600
Jenkintown, PA 19046

      Counsel for Appellants in 14-2791

Daniel H. Gold, Esq.
Haynes & Boone
2323 Victory Avenue
Suite 700
Dallas, TX 75219,

      Counsel for Appellant in 14-2792




                            3
Richard L. Coffman, Esq.
The Coffman Law Firm
505 Orleans Street
Suite 505
Beaumont, TX 77701

David P. Germaine, Esq.
Alberto Rodriguez, Esq.
Joseph M. Vanek, Esq.
Vanek Vickers & Masini
55 West Monroe Street
Suite 3500
Chicago, IL 60603

Steve D. Shadowen, Esq. ARGUED
Hilliard & Shadowen
39 West Main Street
Mechanicsburg, PA 17055,

      Counsel for Appellants in 14-2793

Ruthanne Gordon, Esq.
Michael J. Kane, Esq.
H. Laddie Montague, Jr., Esq. ARGUED
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103

Hilary K. Scherrer, Esq.
Hausfeld
1700 K Street, N.W.
Suite 650
Washington, DC 20006




                            4
Roberta D. Liebenberg, Esq.
Adam Pessin, Esq.
Fine Kaplan & Black
One South Broad Street
Suite 2300
Philadelphia, PA 19107

      Counsel for Appellants in 14-2794

Eric L. Bloom, Esq.
Hangley Aronchick Segal Pudlin & Schiller
4400 Deer Path Road
Suite 200
Harrisburg, PA 17110,

      Counsel for Appellant in 14-2795

William F. Cavanaugh, Jr., Esq. ARGUED
Stephanie M. Gyetvan, Esq.
Adeel A. Mangi, Esq.
Patterson, Belknap, Webb & Tyler
1133 Avenue of the Americas
New York, NY 10036

      Counsel for Appellees Hersey Co. & Hersey Canada
      Inc.

Nicole L. Castle, Esq.
McDermott, Will & Emery
340 Madison Avenue
New York, NY 10173




                              5
David Marx, Esq. ARGUED
McDermott, Will & Emery
Suite 4400
227 West Monroe Street
Chicago, IL 60606

Stefan M. Meisner, Esq.
McDermott Will & Emery
500 North Capitol Street, N.W.
Washington, DC 20001

      Counsel for Appellees Mars Inc. & Mars Snackfood
      United States LLC

Peter E. Moll, Esq. ARGUED
Daniel J. Howley, Esq.
Cadwalader Wickersham & Taft
700 Sixth Street, N.W.
Washington, DC 20001

Adam L. Hudes, Esq.
Stephen M. Medlock, Esq.
Carmine R. Zarlenga, III, Esq.
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006,

      Counsel for Appellee Nestle USA Inc.




                           ______




                                 6
                 OPINION OF THE COURT
                         ______

FISHER, Circuit Judge.
        In these consolidated antitrust conspiracy cases, two
groups of plaintiffs, one a certified class of direct purchasers
of chocolate products (“the Direct Purchaser Class”), and the
other a group of individual plaintiffs (“the Individual
Plaintiffs”) (collectively, “the Plaintiffs”), appeal the District
Court’s summary judgment in favor of defendants The
Hershey Company (“Hershey”); Hershey Canada, Inc.; Nestlé
USA, Inc.; and Mars, Inc. and Mars Snackfood U.S., LLC
(collectively, “Mars”) (all appellees are collectively referred
to as “the Chocolate Manufacturers”).
        According to the Plaintiffs, the Chocolate
Manufacturers conspired to raise prices on chocolate candy
products in the United States three times between 2002 and
2007. The Plaintiffs assert numerous errors on appeal, but at
its core, this case is about how courts should view evidence of
a contemporaneous antitrust conspiracy in a foreign market
when that evidence is offered to prove the existence of an
antitrust conspiracy in the U.S. market. Here the foreign
conspiracy involved the Chocolate Manufacturers’ Canadian
brethren: Hershey Canada,1 Mars Canada, Inc., and Nestlé
Canada        (collectively,   “the     Canadian     Chocolate
Manufacturers”), as well as others.
      We agree with the District Court that the Canadian
conspiracy evidence is ambiguous and does not support an

       1
       Hershey Canada is the only one of the Canadian
Chocolate Manufacturers that is a party to this appeal.



                                7
inference of a U.S. conspiracy for two simple reasons. First,
the people involved in and the circumstances surrounding the
Canadian conspiracy are different from those involved in and
surrounding the purported U.S. conspiracy, and second, the
evidence that the Chocolate Manufacturers in the United
States knew of the unlawful Canadian conspiracy is weak
and, in any event, relates only to Hershey. Because we also
conclude that the Plaintiffs’ other traditional conspiracy
evidence is insufficient to create a reasonable inference of a
U.S. price-fixing conspiracy, we will affirm.2
                              I.
       A.     The U.S. Chocolate Industry
       The U.S. chocolate confectionary market is dominated
by three companies: Hershey, Mars, and Nestlé USA.
Hershey is a publicly traded company based in Hershey,
Pennsylvania, and sells such famous brands as Hershey’s
Milk Chocolate Bar and Reese’s Peanut Butter Cups. Mars is
a privately held company headquartered in Virginia and is the
parent company of Mars Snackfood U.S. Among Mars’s most
notable brands are M&Ms and Milky Way. Nestlé USA is a
U.S.-based company wholly owned by Switzerland-based
Nestlé S.A. Nestlé USA sells such popular brands as Nestlé
Crunch and Butterfinger. Besides offering a variety of
chocolate candy brands, the Chocolate Manufacturers offer a
variety of sizes. Some sizes, such as single- and king-size

       2
         Because we conclude that the District Court correctly
granted summary judgment for the Chocolate Manufacturers,
we do not reach the secondary question of whether the
District Court abused its discretion by excluding a portion of
the Individual Plaintiffs’ economic expert’s report calculating
the damages caused by Nestlé USA.



                               8
bars (“singles” and “kings”), are for immediate consumption,
while others, including bags containing miniature or bite-size
candies, are for future consumption. This case focuses on
immediate consumption candy sizes.
      The U.S. chocolate market is highly concentrated.
During the relevant period, these three companies controlled
more than 75% of the U.S. market, with Hershey controlling
approximately 42%, Mars controlling approximately 28%,
and Nestlé USA controlling roughly 8%.
       The primary raw materials for the various chocolate
products at issue are generally the same: cocoa, sugar, dairy
products, peanuts, almonds, fats, and oils. Naturally, the costs
of these ingredients affect the prices of the chocolate
products. To hedge against cost increases for these
ingredients, the Chocolate Manufacturers take advantage of
futures exchanges. For example, in a 2002 internal report,
Hershey understood that through futures contracts, its
coverage on cocoa costs “through mid-2004” was “favorable
versus [its] principal competitors.” J.A. 4620. Still, between
2002 and 2007, it is undisputed that cocoa prices increased.
See J.A. 6273–74 (acknowledging that Hershey’s actual
cocoa costs increased from 2002 to 2006).
       Parallel price increases—in which one company raises
prices and its rivals follow—are not uncommon in this
industry. Although the price increases have not followed a
consistent playbook—some have involved changes in candy
weight while others have involved delays between the initial
and subsequent pricing actions—the Chocolate Manufacturers
raised prices together in 1979, 1981, 1984, 1986, 1991, and
1995.


       B.     The Purported U.S. Conspiracy



                               9
       According to the Plaintiffs, the Chocolate
Manufacturers conspired to raise U.S. list prices on chocolate
candy products three times between 2002 and 2007. On
December 7, 2002, following a seven-year period of stagnant
prices, Mars announced list price increases on singles and six
packs by 3.5 cents per bar effective December 9, 2002. On
December 9, Hershey announced an identical price increase
on singles and a slightly lesser price increase on six packs; in
addition, Hershey announced price increases on kings and ten
packs (all effective January 2003). On December 11, Nestlé
USA’s prices moved too, effectively matching Mars and
Hershey’s price increases on singles, Hershey’s price increase
on kings, and Mars’s greater price increase on six packs.
Days later, Mars matched Hershey’s increase on kings and
exceeded Hershey’s increase on ten packs.
        Next, in November 2004, Mars initiated another price
increase, this time on future consumption products. Nearly
one month later, Hershey followed Mars’s price increase on
future consumption products and also raised prices on singles,
kings, and six packs. Soon after, Mars matched Hershey’s
increases. Nestlé USA followed with nearly identical
increases several days later. Finally, on March 23, 2007, Mars
initiated the final increase during the alleged conspiracy
period when it increased prices on singles and kings. Hershey
matched the increases on April 4, and Nestlé USA followed
the next day.
       The conspiracy was furthered, the Plaintiffs argue, by
the Chocolate Manufacturers exchanging information on each
other’s planned price increases before publicly announcing
those increases. For example, an internal Hershey document
shows that Hershey had information as early as September
2002 that Mars was “considering a price increase due to
rising cocoa costs,” J.A. 5300, and in announcing the 2002



                              10
Mars price increase to the Hershey board of directors,
Hershey’s CEO, Rick Lenny, characterized the Mars increase
as “roughly in line with expectations,” J.A. 4620.
        In addition, the Plaintiffs highlight various
opportunities the Chocolate Manufacturers had to conspire.
For example, in 2002, at a time when the U.S. chocolate
market was not thriving, the Hershey Trust, Hershey’s
controlling shareholder, put Hershey up for sale. Hershey’s
rivals, including Nestlé and Cadbury, were among the
interested buyers. Through the proposed sale process, Nestlé
and Cadbury obtained information about Hershey’s business,
but the record is unclear to what extent Hershey’s most
sensitive information, such as commodities cost coverage,
changed hands and who received it. The Hershey Trust
terminated the sale process in September 2002, shortly before
the first price increase in the purported conspiracy.
       The Plaintiffs also point north to Canada, where the
Canadian chocolate market was embroiled in its own antitrust
conspiracy at the same time as the purported U.S. conspiracy.
Like the U.S. market, the Canadian market is very
concentrated, with the three Canadian Chocolate
Manufacturers controlling roughly 66% of the market.
Hershey is the parent company of Hershey Canada, and Mars
is the parent company of Mars Canada. Hershey Canada and
Mars Canada report to and need final approval from U.S.-
based executives on pricing decisions, but the Canadian
subsidiaries are separate legal entities, operate exclusively in
Canada, and run their own day-to-day operations. Nestlé
Canada, on the other hand, is a subsidiary of Switzerland-
based Nestlé S.A., so it is different from Hershey Canada and
Mars Canada in that it does not report to a U.S. parent
company.




                              11
        From 2002 to 2007, Mars Canada, Hershey Canada,
Nestlé Canada, and Cadbury Adams Canada (“Cadbury
Canada”) allegedly conspired to limit competition on trade
spend3 and to raise prices. The trade spend conspiracy began
in 2002 when ITWAL, a direct purchaser and major
distributor in Canada, sent notices to the Canadian Chocolate
Manufacturers asking them to reign in trade spend. ITWAL’s
efforts were successful, yielding commitments from the
Canadian Chocolate Manufacturers that they would reduce
trade spend. In April 2002, ITWAL’s president sent a notice
to each of the Canadian Chocolate Manufacturers stating,
“[I]t appears your efforts to ‘dry up’ this activity may be
starting to work!” J.A. 7128. Driving home the point,
ITWAL’s president sent another notice in December of that
year to all the Canadian Chocolate Manufacturers stating, “I
WOULD LIKE TO EXTEND CONGRATULATIONS TO
YOU ALL AS WE WIND UP THE YEAR WITH RESPECT
TO YOUR CONCERTED AND COMMITTED EFFORTS
TO CLEAN UP THE DYSFUNCTIONAL RETAIL TRADE
SPENDING.” J.A. 7157 (emphasis added).
       Additionally, there is evidence suggesting a price-
fixing conspiracy among the Canadian Chocolate
Manufacturers, including secret meetings involving pricing
discussions. In 2005, for example, Nestlé Canada CEO Bob
Leonidas told Cadbury Canada President David Sculthorpe
that Nestlé Canada would be increasing prices and proved it
with a copy of a not-yet-issued price-increase announcement,


       3
         Trade spend refers to rebates, allowances, discounts,
and promotions that manufacturers individually negotiate
with retailers that effectively lower the price that the customer
pays.



                               12
and Sculthorpe promised that Cadbury Canada would follow.
J.A. 11817–19.
        The Canadian scheme was ultimately the subject of a
criminal investigation by the Canadian Competition Bureau.
Cadbury Canada cooperated with the investigation, and
Hershey Canada did as well, with Hershey pleading guilty to
one count of price fixing stemming from a 2007 incident and
paying a $4 million (Canadian) fine. J.A. 13564–65. In 2013,
Nestlé Canada, Mars Canada, ITWAL, Leonidas, and
ITWAL’s president were indicted in Canada. The Canadian
case is still pending.
       C.      The Procedural History
       The cases on appeal have a long history. They began
as ninety-one separate civil actions that were filed against the
Chocolate Manufacturers as well as their Canadian
counterparts and several Cadbury entities. In addition to
various state law claims, the actions brought claims under §§
4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, alleging
that the defendants engaged in a U.S. price-fixing conspiracy
in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. In
2008, the Judicial Panel on Multidistrict Litigation
consolidated the actions for pretrial proceedings in the U.S.
District Court for the Middle District of Pennsylvania
pursuant to 28 U.S.C. § 1407(a).
        After the cases were consolidated, each of the
defendants moved to dismiss the complaints for failure to
state a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, but on March 4, 2009, the District Court denied
the motions except as to certain state law claims. See In re
Chocolate Confectionary Antitrust Litig., 

538, 548–49 (M.D. Pa. 2009).4 At the pleading stage, the
District Court decided that the Plaintiffs had adequately pled
a price-fixing conspiracy in violation of the Sherman Act. In
so holding, the District Court relied on allegations regarding
the contemporaneous Canadian conspiracy and the Canadian
chocolate market’s integration with the U.S. chocolate
market. 

In 2011, all the Cadbury defendants
were dismissed after they reached a settlement with the
various groups of plaintiffs. As part of the agreement with the
Direct Purchaser Class, Cadbury agreed to fully cooperate
with the Plaintiffs during discovery. J.A. 2642.
        On December 7, 2012, the District Court certified a
class of all direct purchasers of chocolate candy products for
resale from the Chocolate Manufacturers between December
9, 2002 and December 20, 2007, which formed the Direct
Purchaser Class. The Individual Plaintiffs, comprising mostly
grocery and drug stores, pursued their claims individually. In
certifying the Direct Purchaser Class, the District Court
denied Daubert5 challenges to the Class’s economic experts,
Dr. Robert D. Tollison and Dr. James T. McClave. In re
Chocolate Confectionary Antitrust Litig., 

, 213
(M.D. Pa. 2012). Briefly, Dr. Tollison opined that the U.S.
chocolate market was conducive to price fixing and that a
price-fixing conspiracy did occur in this case, while Dr.

      4
         Several defendants also moved to dismiss for lack of
personal jurisdiction under Rule 12(b)(2). After initially
deferring ruling on these motions, the District Court
ultimately granted the motions as to Mars Canada, Nestlé
S.A., and Nestlé Canada. See In re Chocolate Confectionary
Antitrust Litig., 

, 373 (M.D. Pa. 2009).
       5
         Daubert v. Merrell Dow Pharm., Inc., 

(1993).



                              14
McClave testified to the class-wide damages caused by the
Chocolate Manufacturers’ supracompetitive prices.
        In May 2013, the District Court considered another
Daubert motion, this time challenging the testimony of the
Individual Plaintiffs’ economic expert, Dr. Christopher A.
Vellturo. The District Court granted the motion to exclude
part of Dr. Vellturo’s testimony and reports on the Individual
Plaintiffs’ damages caused by Nestlé USA’s alleged
overcharges because Dr. Vellturo based his calculations on
Mars’s profit margin data, not Nestlé USA’s. The Individual
Plaintiffs appeal that decision here.6 As for the remainder of
Dr. Vellturo’s testimony, the District Court denied the
Daubert motion, concluding that Dr. Vellturo’s other
opinions, including his opinion that the Canadian conspiracy
facilitated or “actuated” the implementation of the U.S.
conspiracy, were admissible. J.A. 100–03.
        At the close of discovery, each of the Chocolate
Manufacturers filed separate summary judgment motions as
to the Individual Plaintiffs’ claims and the Direct Purchaser
Class’s claims. On February 26, 2014, the District Court
granted summary judgment in favor of the Chocolate
Manufacturers. See In re Chocolate Confectionary Antitrust
Litig., 

, 780 (M.D. Pa. 2014). The
Plaintiffs’ claims failed, the District Court reasoned, because
they could not show that the Chocolate Manufacturers acted
against their self-interest and because there was no traditional
conspiracy evidence. In the District Court’s view, the
Plaintiffs’ evidence was as consistent with lawful competition
as with an illegal conspiracy and therefore could not raise a

       6
        As explained earlier, we do not reach this issue
because we will affirm the District Court’s summary
judgment. See supra note 2.



                              15
reasonable inference of a price-fixing conspiracy. 

This decision is the central issue on appeal.
       The Plaintiffs filed timely appeals.
                              II.
        The District Court had jurisdiction under 15 U.S.C. §
15(a) and 28 U.S.C. §§ 1331 and 1337. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s summary judgment and apply the same
standard the District Court did. In re Baby Food Antitrust
Litig., 

, 123–24 (3d Cir. 1999).
        Because substantive antitrust law is intertwined with
our standard of review, we first discuss the underlying legal
principles. The Plaintiffs’ claims arise from § 1 of the
Sherman Act, which prohibits “[e]very contract, combination
in the form of trust or otherwise, or conspiracy, in restraint of
trade or commerce.” 15 U.S.C. § 1. Although its language is
broad, § 1 only prohibits unreasonable restraints of trade. In
re Flat Glass Antitrust Litig., 

, 356 (3d Cir.
2004). Therefore, in some cases, courts must apply “the so-
called rule of reason,” a case-by-case inquiry designed to
assess whether challenged conduct is an anticompetitive
practice. Baby 

.
       Other restraints of trade, however, have such little
redeeming competitive value that they are deemed per se
unreasonable. In re Ins. Brokerage Antitrust Litig., 

, 316 (3d Cir. 2010). Horizontal price fixing among
competitors—what the Plaintiffs claim happened here—is a
classic example of a restraint of trade analyzed under the per




                               16
se standard.7 Texaco Inc. v. Dagher, 

, 5 (2006).
Price-fixing agreements “are all banned because of their
actual or potential threat to the central nervous system of the
economy.” United States v. Socony-Vacuum Oil Co., 

, 224 n.59 (1940).
        In per se cases like this one, “the plaintiff need only
prove that the defendants conspired among each other and
that this conspiracy was the proximate cause of the plaintiff’s
injury.” InterVest, Inc. v. Bloomberg, L.P., 

, 159
(3d Cir. 2003). Without proof of concerted action, the
plaintiff’s claim fails because the “very essence of a section 1
claim . . . is the existence of an agreement.” Alvord-Polk, Inc.
v. F. Schumacher & Co., 

, 999 (3d Cir. 1994).
Therefore, proof of a “unity of purpose or a common design
and understanding or a meeting of minds in an unlawful
arrangement” is required. 

marks
omitted). Such proof may come in the form of direct
evidence, e.g., an explicit admission from a participant that an
antitrust conspiracy existed, or circumstantial evidence.

. An important corollary to the
agreement requirement is that § 1 liability cannot be
predicated on a defendant’s unilateral actions, no matter its
anticompetitive motivations. Monsanto Co. v. Spray-Rite
Serv. Corp., 

, 761 (1984) (“Independent action is
not proscribed [by § 1].”); 

.
       Returning to our standard of review, the summary
judgment standard in antitrust cases is generally no different
from the standard in other cases. Flat 

.
Here as elsewhere, summary judgment is appropriate when

       7
         A horizontal price-fixing agreement occurs when
competitors on the same market level agree to fix or control
prices for their goods or services.



                              17
the evidence “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We also review the
record as a whole and in the light most favorable to the
nonmovant, drawing reasonable inferences in its favor. See
Flat 

.
        There is, however, “an important distinction” in
antitrust cases. 

limits the range of
permissible inferences from ambiguous evidence in a § 1
case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 588 (1986). “[C]onduct as consistent with
permissible competition as with illegal conspiracy does not,
standing alone, support an inference of antitrust conspiracy.”

the plaintiff “present[s] evidence ‘that
tends to exclude the possibility’ that the alleged conspirators
acted independently,” summary judgment is appropriate. 

465 U.S. at 764). The purpose of this
standard is to avoid mistaken inferences that could impose
liability for lawful conduct and, consequently, “chill the very
conduct the antitrust laws are designed to protect.” 

accord Flat 

.
        Under Matsushita, the range of acceptable inferences
that may be drawn from ambiguous or circumstantial
evidence “‘var[ies] with the plausibility of the plaintiffs’
theory and the dangers associated with such inferences.’” Flat

(quoting Petruzzi’s IGA Supermarkets,
Inc. v. Darling-Del. Co., 

, 1232 (3d Cir. 1993)).
If the plaintiff’s theory “makes no economic sense” and if
drawing inferences in its favor would deter procompetitive
conduct, the plaintiff must produce “more persuasive




                              18
evidence” to support its claim. 

marks
omitted).8
       Importantly, even when armed with a plausible
economic theory, a plaintiff relying on ambiguous evidence
alone cannot raise a reasonable inference of a conspiracy
sufficient to survive summary judgment. 

n.21 (“We do not imply that, if petitioners had
had a plausible reason to conspire, ambiguous conduct could
suffice to create a triable issue of conspiracy.”); Rossi v.
Standard Roofing, Inc., 

, 466 (3d Cir. 1998). At
the same time, “defendants are [not] entitled to summary
judgment merely by showing that there is a plausible
explanation for their conduct; rather the focus must remain on
the evidence proffered by the plaintiff and whether that
evidence tends to exclude the possibility that the defendants



       8
         We illustrated the point well in Flat Glass by
comparing the theories involved in Matsushita and Petruzzi’s,

, and we summarize that discussion here.
In Matsushita, the Supreme Court criticized the alleged multi-
firm, predatory pricing scheme as inherently “speculative,” so
the Court refused to draw an inference of a conspiracy from
ambiguous evidence. 

–91, 597–98. In
Petruzzi’s, by contrast, we drew more liberal inferences in the
plaintiff’s favor because the plaintiff’s theory—that the
defendants conspired not to compete with each other on
existing customer accounts—made “perfect economic 

. The only way for the defendants in
Petruzzi’s to increase profits in this manner was by
agreement. Moreover, this conduct of refusing to compete
was obviously not procompetitive. 

acting independently.” 

(internal
quotation marks and brackets omitted).9
                              III.
        The Plaintiffs build their case on a logical enough
foundation: three parallel price increases by the Chocolate
Manufacturers between 2002 and 2007. Moreover, the
Plaintiffs’ theory—that the Chocolate Manufacturers
conspired to fix prices at supracompetitive levels—“makes
perfect economic sense.” Flat 

. If true,
the alleged conduct is also not procompetitive. 

the facial plausibility of the Plaintiffs’ theory and the
circumstantial evidence supporting it, we must be cautious.
The U.S. chocolate market is “a textbook example of an
oligopoly,”10 J.A. 2187, and we cannot infer too much from
mere evidence of parallel pricing among oligopolists, Flat

.
       Our caution is based on the economic theory of
interdependence, which recognizes the differences between

       9
          The “strictures of Matsushita d[o] not apply” when
plaintiffs use direct evidence to prove a conspiracy because
“no inferences are required from direct evidence to establish a
fact,” thus negating any concern about the reasonableness of
the inferences drawn from that evidence. 

. Nor are these concerns implicated when there is
“strong circumstantial evidence” because such evidence is
“sufficiently unambiguous.” 

marks
omitted).
        10
           An oligopoly is a market “in which a few relatively
large sellers account for the bulk of the output.” 2B Phillip E.
Areeda & Herbert Hovenkamp, Antitrust Law ¶ 404a, at 10
(4th ed. 2014).



                              20
competitive markets (markets with many smaller firms) and
oligopolistic markets (concentrated markets with only a few
firms). In competitive markets, the theory goes, any one
firm’s change in output or price would go unnoticed by its
competitors because the effects of that firm’s increased sales
“would be so diffused among its numerous competitors.” 

(internal quotation marks omitted). In a concentrated
or oligopolistic market, by contrast, a single firm’s change in
output or price “will have a noticeable impact on the market
and on its rivals.” 

marks omitted).
Therefore, the theory of interdependence posits that “any
rational decision [by an oligopolist] must take into account
the anticipated reaction of the other firms.” 

marks and brackets omitted). The upshot is
oligopolists may maintain supracompetitive prices through
rational, interdependent decision-making, as opposed to
unlawful concerted action, if the oligopolists independently
conclude that the industry as a whole would be better off by
raising prices. 

this practice of parallel pricing, known as
“conscious parallelism,” produces anticompetitive outcomes,
it is lawful under the Sherman Act for two reasons. 

–60. First, conscious parallelism is not an agreement, 

instead, it “can be a necessary fact of life” in
oligopolies, Baby 

. Second, conscious
parallelism is lawful not because it “is desirable (it is not),”
but because courts have no effective remedy for the problem.
Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 

,
484 (1st Cir. 1988) (Breyer, J.); accord Flat 

.
      Accordingly, evidence of conscious parallelism cannot
alone create a reasonable inference of a conspiracy. Baby

. To move the ball across the goal line,



                              21
a plaintiff must also show that certain plus factors are present.
Flat 

. Plus factors are “proxies for
direct evidence” because they “tend[] to ensure that courts
punish concerted action—an actual agreement—instead of the
unilateral, independent conduct of competitors.” 

marks omitted). Although we have not identified an
exhaustive list of plus factors, they may include “(1) evidence
that the defendant had a motive to enter into a price fixing
conspiracy; (2) evidence that the defendant acted contrary to
its interests; and (3) ‘evidence implying a traditional
conspiracy.’” 

998 F.2d at 1244).
        Yet in cases alleging parallel price increases, as
opposed to some other form of concerted action, “the first two
factors largely restate the phenomenon of interdependence.”
Id.; see also 

(acknowledging that
evidence of actions against self-interest may overlap with
lawful interdependence in parallel pricing cases, but
concluding that the overlap concern is absent when the
challenged conduct involves parallel non-pricing decisions).
Evidence of a motive to conspire means the market is
conducive to price fixing, and evidence of actions against
self-interest means there is evidence of behavior inconsistent
with a competitive market. See Flat 

–
61. By nature, oligopolistic markets are conducive to price
fixing and will often exhibit behavior that would not be
expected in competitive markets. 

factors
are neither necessary nor sufficient to preclude summary
judgment, at least where the claim is price fixing among
oligopolists. 

n.12.
       That leaves traditional non-economic evidence of a
conspiracy as the most important plus factor in cases like this
one. 

. This plus factor looks for “proof that the
defendants got together and exchanged assurances of



                               22
common action or otherwise adopted a common plan even
though no meetings, conversations, or exchanged documents
are shown.” 

marks omitted).
      With these principles in mind, we now turn to whether
the Plaintiffs have identified enough evidence to survive
summary judgment.
                              IV.


       Lacking direct evidence, the Plaintiffs rely on
circumstantial evidence to raise a reasonable inference of a
conspiracy. The District Court found, and the parties do not
dispute, that the Plaintiffs presented sufficient evidence of
parallel pricing. Therefore, our analysis focuses on whether
there are sufficient plus factors to defeat summary judgment.
       A.    Motive
       The District Court found that the Plaintiffs had
adduced sufficient evidence of the Chocolate Manufacturers’
motive to enter into a price-fixing conspiracy, and again, no
one disputes this conclusion on appeal. Given the market
concentration and high barriers to entry, the U.S. chocolate
confectionary market was ripe for collusion. But evidence of
motive without more does not create a reasonable inference of
concerted action because it merely restates interdependence.
See Flat 

.
       B.     Actions Against Self-Interest
       The District Court next held that the Plaintiffs had not
provided enough evidence to show that the Chocolate
Manufacturers acted contrary to their self-interest by raising
prices in 2002, 2004, and 2007. Unlike the first plus factor,
the parties vigorously dispute the correctness of the District
Court’s conclusion on this point. To the Plaintiffs, the District



                               23
Court’s analysis is flawed, rife with inferences drawn against
them and contradicted by their expert evidence concluding
that cost increases could not explain the price increases. To
the Chocolate Manufacturers, the District Court analyzed the
issue correctly by noting the Plaintiffs’ inability to rebut the
Chocolate      Manufacturers’      several    legitimate    and
procompetitive justifications for the price increases as well as
their divergent tactics and strategies implementing the price
increases.
        Part of the disagreement here appears to be based on a
misconception about what this factor means: as discussed
above, evidence of actions against self-interest means there is
evidence of behavior that is inconsistent with a competitive
market. So in Flat Glass, we found this factor present based
on the lack of evidence showing that the price increases were
due to increases in costs or demand. 

.
Similarly here, the Plaintiffs’ economic experts uniformly
opined that cost increases could not explain the price
increases. See J.A. 5135 (Vellturo Report) (“I find that
increased costs were a minor (if significant at all)
consideration in Defendants’ subject price increases.”); J.A.
13893 (Tollison Declaration) (“[C]osts provide no rational
economic explanation for price increases . . . .”); J.A. 14058–
60 (McClave Report) (“My model shows . . . that prices were
elevated to levels during the class period well above those
justified by changes in cost and demand.”). Further, the
Plaintiffs’ experts rejected criticisms that their analyses did
not account for cost variables beyond raw material costs.
These conclusions find at least some support from non-expert
evidence in the record. Compare J.A. 4618–19 (October 2002
memorandum from Hershey CEO Lenny to the Hershey
board of directors noting “extremely sluggish retail
environment” and explaining that Hershey would not raise



                              24
prices in the near term in part because Hershey was covered
on costs), with J.A. 7654 (announcing December 2002
Hershey price increase). Therefore, we agree with the
Plaintiffs (and disagree with the District Court and the
Chocolate Manufacturers) to this extent: the aforementioned
evidence shows that the U.S. chocolate market may not have
been acting consistently with a competitive market.
       This is not to say that the record evidence uniformly
supports the Plaintiffs’ position; to the contrary, there is
substantial support for the Chocolate Manufacturers’
contention that their actions were consistent with, and the
result of, competition. For example, there is evidence
showing that the price increases were taken in anticipation of
rising costs; that costs actually did go up during the
conspiracy period; that the Chocolate Manufacturers tried to
catch each other by surprise with the timing of, and the
products associated with, the price increases; and that the
prevalent practice of line pricing11 by retailers made it


       11
           Line pricing is the practice engaged in by retailers of
setting the same retail price for competing candy products of
the same size. Given the practice of line pricing, the
Chocolate Manufacturers contend that once one manufacturer
raises list prices, it makes sense for all to follow. If a retailer
raises the retail price on all competing candy products of a
given size in response to one manufacturer raising list prices,
the other manufacturers will suffer a decline in sales volume
due to the higher retail price and lose out on any increased
revenue unless they follow the list price increase. See J.A.
1084; see also J.A. 1278 (Mars 2002 document explaining it
would follow Hershey’s price increase on kings because “the
market would move to the higher price with or without us”).



                                25
rational and self-interested for the Chocolate Manufacturers
to follow price increases initiated by a rival.
       Our conclusion is instead a recognition of the case’s
summary judgment posture, where we must draw reasonable
inferences in the Plaintiffs’ favor. At this stage, the
admissible testimony from the Plaintiffs’ experts, coupled
with other record evidence suggesting that the price increases
were not fully explained by cost increases, does the trick.
Although the Chocolate Manufacturers have marshaled
considerable evidence in support of their positions, “we must
accept that the [P]laintiffs have presented some admissible
evidence that higher prices during the period of the alleged
conspiracy cannot be fully explained by causes consistent
with active competition . . . .” In re High Fructose Corn
Syrup Antitrust Litig., 

, 660 (7th Cir. 2002)
(Posner, J.).
        But the Plaintiffs’ victory on this point is a hollow one.
As previously noted, given this factor’s purpose of identifying
conduct inconsistent with a competitive market, it often
restates interdependence. Flat 

(“All
the above indicates that the price increases were collusive, but
not whether the collusion was merely interdependent or the
result of an actual agreement.”). To prove a conspiracy here,
the evidence “must go beyond mere interdependence. Parallel
pricefixing must be so unusual that in the absence of an
advance agreement, no reasonable firm would have engaged
in it.” Baby 

.
       The Plaintiffs have fallen well short of this standard.
Even if we credit the Plaintiffs’ arguments, all they show is
that costs—which they acknowledge were increasing—did
not justify the price increases observed in 2002, 2004, and
2007. To the Plaintiffs’ experts, the fact that cost increases




                               26
couldn’t explain the price increases seems to be enough to
show a price-fixing agreement. See J.A. 2187–88 (Vellturo
Report) (claiming that above-competitive pricing must result
from an express or tacit agreement); J.A. 13891–93 (Tollison
Report) (opining that price increases taken without cost
increases should have been defeated because other firms
would be better off not following). But evidence of a price
increase disconnected from changes in costs or demand only
raises the question: was the anticompetitive price increase the
result of lawful, rational interdependence or of an unlawful
price-fixing conspiracy? See Flat 

;

(“[I]t is quite likely that
oligopolists acting independently might sell at the same
above-marginal cost price as their competitors because the
firms are interdependent and competitors would match any
price cut.”); 

(“One does not need
an agreement to bring about this kind of follow-the-leader
effect in a concentrated industry.”). The Plaintiffs’ experts do
not answer this question.12

       12
          This case is quite different from Petruzzi’s, where
we said the economic evidence went “a long way” in meeting
the plaintiff’s 

. There the alleged
conspiracy was not price fixing but instead an agreement to
compete only on new customer accounts and not to compete
on existing customer accounts (i.e., competition ended once a
defendant “won” a new account). The industry (fat and bone
rendering) was homogeneous, meaning the only basis for
competition among the defendants was price. The economic
evidence in Petruzzi’s showed a price differential between
new and existing accounts (new accounts were offered a
significantly better price than were existing accounts), which
could only rationally be explained by an unlawful agreement.



                              27
       The         Individual       Plaintiffs      acknowledge
interdependence but persist by arguing that Hershey, in
particular, acted against its self-interest by following Mars’s
price increases rather than maintaining lower prices to
increase its market share. For support, the Individual
Plaintiffs point to Hershey’s favorable cost positions in 2002
relative to its rivals as well as Mars’s decision not to follow
Hershey’s 2001 price increase on packaged candy, a decision
which led to Mars increasing its market share.
        Deciding not to follow a price increase initiated by a
rival is just one rational response that an oligopolist can take,
a fact acknowledged by economists, including the Individual
Plaintiffs’ economic expert, Dr. Vellturo. J.A. 2187
(recognizing the “wide range of ‘competitive’ results” in
oligopolistic markets); 6 Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 1429b, at 222–23 (3d ed. 2010)
(discussing how firms in an oligopolistic market may in some
instances choose to follow price increases while in others
choose not to follow). That Hershey may have maintained a
temporary cost advantage over its rivals did not make it
irrational for Hershey to follow a price increase if it believed
it would ultimately be better off by doing so. Indeed, the
evidence is fully consistent with Hershey recognizing its
temporary cost advantage but also recognizing how a price
increase may still be to its benefit as well as the benefit of the
chocolate industry as a whole. See J.A. 4619 (letter from
Hershey CEO Lenny to the Hershey board explaining why

contrast, the Plaintiffs’ economic evidence is
based on parallel price increases among oligopolists without
corresponding cost increases, a result which, as previously
noted, is as consistent with interdependence as with a
conspiracy.



                               28
Hershey would not initiate a price increase in the near term
but also noting that Hershey was “prepared to follow” any
price increase initiated by a rival and adopting a “wait and
see” strategy). This follow-the-leader strategy is especially
reasonable in the U.S. chocolate market given the prevalent
practice of line-pricing by retailers. Therefore, even focusing
on Hershey and its cost advantages, the Plaintiffs cannot tell
us whether Hershey’s decision to follow the price increase
was due to interdependence or an unlawful agreement.
        Moreover, focusing on Hershey’s cost advantage over
its rivals says nothing of Mars’s and Nestlé USA’s decisions
to raise prices. Even if Hershey’s motivations for following
the price increase were anticompetitive, unilateral
anticompetitive conduct is not proscribed by § 1 of the
Sherman Act. See 

.
       In sum, although there is some evidence that the
Chocolate Manufacturers acted inconsistently with a
competitive market, the evidence does not go beyond
interdependence and therefore does not create an inference of
a conspiracy.
       C.     Traditional Conspiracy Evidence
       We now consider the most important plus factor in this
case: whether there is enough traditional conspiracy evidence
to create a reasonable inference that the Chocolate
Manufacturers conspired to fix prices. The Plaintiffs identify
several categories of traditional conspiracy evidence, but the
most important is evidence of the contemporaneous Canadian
conspiracy. We therefore discuss the Canadian conspiracy
evidence first, followed by the Plaintiffs’ other traditional
conspiracy evidence.
             1.     The      contemporaneous        Canadian
conspiracy



                              29
       The Individual Plaintiffs and the Direct Purchaser
Class do not ascribe the same meaning to the Canadian
conspiracy evidence. According to the Individual Plaintiffs, it
is reasonable to infer a domestic conspiracy from the
evidence of a Canadian conspiracy based on the fact that the
Canadian market is a similar adjacent market involving the
same participants. The Individual Plaintiffs further contend
that a jury should be permitted to weigh evidence of the
Canadian conspiracy in assessing the credibility of the
Chocolate Manufacturers’ explanations for the U.S. price
increases. Finally, the Individual Plaintiffs argue, based on
testimony from their economic expert, that the Canadian
conspiracy “actuated” or facilitated the U.S. conspiracy.
According to Dr. Vellturo’s actuation theory, the sharing of
information between the Chocolate Manufacturers and their
Canadian counterparts led the Chocolate Manufacturers to
observe the success of the Canadian conspiracy and
implement a tacit or express U.S. conspiracy. See J.A. 2191–
92. On appeal, the Direct Purchaser Class distances itself
from the actuation theory, arguing instead that the Canadian
conspiracy is relevant to assessing the Chocolate
Manufacturers’ conduct because it enhances the plausibility
of a domestic conspiracy.
       We have not considered what inferences may be
permissibly drawn from evidence of a foreign antitrust
conspiracy about the existence of a domestic antitrust
conspiracy. The Areeda treatise guides our analysis, and we
quote from it at length:
      Illegal behavior elsewhere in time or place does not
      generally allow the inference of an immediate
      conspiracy. If the immediately challenged behavior
      would not imply a conspiracy among firms that are
      similar to the defendants [but that are not involved in a



                              30
      conspiracy elsewhere], then a distinct conspiracy in the
      past or in a different market has little power to explain
      the present behavior. But if there is other evidence of a
      present conspiracy, the defendants’ sins elsewhere may
      cast doubt on the truthfulness of their innocent
      explanations.


      Of course, the scope of a proved conspiracy will often
      be uncertain. It may be difficult to define the
      boundaries of a conspiracy proved to cover an adjacent
      time period, product, or region. Competitors who were
      conspiring in this market yesterday may still be doing
      so today. Parties who are conspiring in New York may
      be doing the same in New Jersey.


      If immediate parallelism is as likely to result from
      present interdependence as from proved conspiracy in
      the past, we should not lightly assume in fact or
      presume in law that the earlier conspiracy continues.
      Contemporaneous conspiracies in adjacent geographic
      markets could reasonably be deemed sufficient to
      transfer to the defendants at least the burden of going
      forward with evidence of an explanation that
      performance is different in the second market, that any
      motivation for conspiracy in one market does not
      extend to the other, or that the personnel or other
      circumstances make it unreasonable to interpret the
      proved conspiracy as extending to the adjacent market.


Areeda & Hovenkamp, supra, ¶ 1421a, at 160.




                             31
       The Second and Eleventh Circuits have taken positions
consistent with the Areeda treatise. In In re Elevator Antitrust
Litigation, 

, 51–52 (2d Cir. 2007) (per curiam),
the Second Circuit concluded that a claim of a domestic or
worldwide conspiracy in the elevator and elevator services
markets was unsupported by allegations of a conspiracy in the
European elevator market given the absence of “any evidence
of linkage between” the foreign and domestic conduct.
Without such a link, the plaintiffs’ argument was merely “‘if
it happened there, it could have happened here.’” 

Similarly, in Williamson Oil Co. v. Philip Morris USA, 

, 1316–17 (11th Cir. 2003), the Eleventh Circuit
held that a district court did not abuse its discretion in
excluding evidence of contemporaneous foreign conspiracies
involving cigarette manufacturers that were also charged with
a domestic antitrust conspiracy. The court reasoned that
without “some palpable tie between these overseas activities
and [the manufacturers’] pricing actions in the United States,
the foreign undertakings . . . do not tend to exclude the
possibility of independent action in the setting of domestic
cigarette prices.” 

       We are persuaded by the sensible approach articulated
by the Areeda treatise and inherent in the reasoning of the
courts in Elevator and Williamson Oil. A conspiracy
elsewhere, without more, generally does not tend to prove a
domestic conspiracy, especially when the conduct observed
domestically is just as consistent with lawful interdependence
as with an antitrust conspiracy. To hold otherwise would
sanction the use of unabashed propensity reasoning—the
fallacy that “if it happened there, it could have happened
here”—to prove a domestic conspiracy using evidence of a
foreign conspiracy. But if two markets are sufficiently similar
or adjacent and the relevant activities therein are sufficiently



                              32
linked or tied in some way, e.g., the people involved in the
conspiracies are the same or overlapping, it may be
reasonable to use evidence of a foreign conspiracy to support
an inference of a domestic conspiracy.13
       Based on our review of the record, we conclude that
the Plaintiffs have not adequately linked the Canadian
conspiracy to the purported U.S. conspiracy to justify using
the former to support an inference of the latter. First, the
people involved in the Canadian conspiracy are different from
those involved in the purported U.S. conspiracy. Granted,
Mars Canada and Hershey Canada are subsidiaries whose
executives report to and receive final approval from U.S.
executives on certain decisions, including pricing decisions.

       13
          Our decision in Flat Glass is not to the contrary.
There we noted in dicta that evidence of a defendant’s price
fixing in a market for original equipment manufacturer glass
would be relevant to the claim that the same defendant also
conspired to fix prices in the market for flat glass, a closely
related but distinct product market in the same geographic
area. 

–78. The evidence in Flat Glass
involved identical companies and one executive who
participated in the price-fixing conspiracies in both product
markets. It is therefore consistent with the rule stated above
because the people and companies involved in both
conspiracies overlapped.
       Nor does the standard we adopt here conflict with
Continental Ore Co. v. Union Carbide & Carbon Corp., 

(1962). Continental Ore is inapposite because the
relevant foreign conduct in that case was part of a single
conspiracy that “was effectuated both here and abroad,” 

and the Plaintiffs do not contend a single conspiracy
existed here.



                              33
But the evidence does not show that any U.S. executives were
involved in the Canadian trade spend or price-fixing
conspiracies. The evidence instead shows that the
conspiratorial conduct occurred in Canada when Canadian
executives and ITWAL agreed to limit trade spend or raise
prices in concert, not when they received final approval from
U.S. executives on price changes. And as for Nestlé USA, the
case is stronger yet. Nestlé Canada is not a subsidiary of
Nestlé USA, and Nestlé Canada’s pricing decisions did not
need Nestlé USA’s approval.
        Second, although the Canadian and U.S. markets are in
a sense adjacent, they are not adjacent in the same way that
the New York and New Jersey markets are, to use the
example from the Areeda treatise. The Canadian Chocolate
Manufacturers are distinct legal entities operating in a
different country, and their wrongdoing does not tend to show
that the Chocolate Manufacturers engaged in similar
wrongdoing in the United States. Cf. Ins. 

n.44 (“[A] subsidiary is a distinct legal entity and is not
liable for the actions of its parent or sister corporations simply
by dint of the corporate relationship.”).
        Third, the circumstances surrounding the Canadian
conspiracy are markedly different from the purported U.S.
conspiracy, and comparing the two reveals gaping holes in
the Plaintiffs’ proof in this case. In Canada, ITWAL played a
primary role in instigating, organizing, and facilitating the
Canadian conspiracy; the Plaintiffs here identify no similar
U.S. player. In Canada, the conspiracy involved concerted
action on trade spend in addition to price fixing; the purported
U.S. conspiracy only involved price fixing. In Canada, the
Canadian Chocolate Manufacturers’ most senior executives
exchanged pricing information and agreed to fix prices, see,
e.g., J.A. 14106 (describing a November 22, 2007, telephone



                               34
call between a Nestlé Canada executive and a Hershey
Canada executive in which the Hershey Canada executive
promised that Hershey Canada would follow a Nestlé Canada
price increase); J.A. 11817–18 (Sculthorpe of Cadbury
Canada testifying to a meeting with Leonidas of Nestlé
Canada where Leonidas said Nestlé Canada was raising
prices and Sculthorpe said Cadbury Canada would follow);
the Plaintiffs here can point to hardly any communications,
let alone pricing communications, among the Chocolate
Manufacturers’ U.S. executives. And in Canada, Cadbury
Canada’s cooperation with the Canadian Competition
Bureau’s investigation yielded evidence of conspiratorial
conduct in Canada; Cadbury’s settlement with the Plaintiffs
here required cooperation as a condition of the settlement, but
despite that cooperation, no similar evidence was uncovered
in the United States.
       As to the actuation theory, we reject its application
here for the reasons stated by the District Court.14 The
actuation theory posits that conspiratorial “conduct and
outcomes” in Canada facilitated an unlawful U.S. conspiracy.

       14
          We have doubts about the actuation theory and
whether it unduly blurs an already fine line between lawful
interdependence and unlawful conspiracies, especially when
the alleged conspiracy involves price fixing among
oligopolists supposedly formed by a tacit agreement. “[E]ven
when each firm rests its own [pricing] decision upon its belief
that competitors will do the same,” that only shows
interdependence, not a conspiracy. 

. But because the District Court concluded that Dr.
Vellturo’s theory was admissible and the Chocolate
Manufacturers do not challenge that decision on appeal, we
reject the theory’s application on its own terms.



                              35
J.A. 2192. The theory therefore presumes a factual
foundation, namely that the U.S. decision makers knew of the
unlawful conduct in Canada and their knowledge of that
conduct gave them confidence to raise U.S. prices by a tacit
or express agreement. See J.A. 2186 (concluding that the U.S.
price increases were the result “of collusion (either tacit or
express) that was actuated as a result of information and
confidence collected by [the Chocolate Manufacturers] on the
development, execution and conduct of conspiratorial action
among their Canadian operations”).15

       15
          Dr. Vellturo’s explanation of the actuation theory in
his report drives home the point. There he opines that before
2002, the Chocolate Manufacturers were unable to raise
prices together. Posing a thought experiment, he says to
“consider a scenario in which U.S. executives from each
Defendant with pricing authority for both the U.S. and
Canada fly to a meeting in Canada” and “[w]ithout ever
uttering an express word regarding U.S. prices, the three
executives agree to raise prices in Canada by 10%.” J.A.
2193. The thought experiment continues with the executives
returning to the U.S. and monitoring the Canadian outcomes,
and then, without any further communication, one firm
announces a price increase of 10% in the U.S. Dr. Vellturo
opines that under these circumstances, the “coordinated anti-
competitive agreement in Canada has significantly changed
the information known about likely responses to a price
increase in the U.S. by these same companies,” with the price
leader expecting the other companies to follow the price
increase. J.A. 2194. This thought experiment presumes not
only that the conspirators in the U.S. knew of the Canadian
conspiracy but also that the U.S. conspirators are the same
people as the Canadian conspirators.



                              36
       And for good reason. Unless there is direct or
circumstantial evidence showing that the U.S. Chocolate
Manufacturers knew of the unlawful Canadian conspiracy,
the U.S. Chocolate Manufacturers would have no basis to
know whether the Canadian parallel trade spend reductions
and pricing were the result of a conspiracy or
interdependence. If we inferred the existence of a U.S.
conspiracy based on evidence that only shows that U.S.


        Moreover, at oral argument, counsel for the Individual
Plaintiffs clearly explained that Dr. Vellturo premised his
theory on evidence showing “that the U.S. executives with
pricing authority at a minimum knew that there was a [sic]
joint conduct in Canada, [and] at a maximum directed that it
occur.” Oral Argument at 25:38, available at http://www2.
ca3.uscourts.gov/oralargument/audio/14-
2790InReChocolateConfectionaryAntitrust.mp3.
        That being said, Dr. Vellturo backtracked in his
deposition by asserting that the U.S. Chocolate
Manufacturers’ awareness of the Canadian conspiracy was
“not essential to [his] opinion.” J.A. 2529. In that case, we
acknowledge that the factual prerequisites for this variation of
the actuation theory—that the Chocolate Manufacturers
monitored Canadian prices and communicated (lawfully) with
their Canadian affiliates—are satisfied. But under this variant
theory, the inference of a U.S. conspiracy is tenuous because
the U.S. result of parallel pricing is perfectly consistent with
interdependence. See Areeda & Hovenkamp, supra, ¶ 1422b,
at 170 (noting that facilitating devices alone do not imply a
traditional conspiracy because “any parallelism in subsequent
behavior will often be of the sort that can be satisfactorily
explained by oligopolistic interdependence alone and without
regard to the facilitating practice”).



                              37
executives observed the parallel outcomes in Canada but had
no knowledge of the cause of those outcomes (a conspiracy or
interdependence), we would chill lawful conduct. We would
essentially prohibit an oligopolist from recognizing its
interdependence in a foreign market and applying those
lessons in a domestic market, even though interdependence at
home or abroad is lawful under the Sherman Act. If
interdependence alone is not unlawful, we fail to see how
evidence that effectively shows “interdependence squared”
suddenly would create a reasonable inference of a U.S.
conspiracy. Therefore, for the actuation theory to make a
meaningful dent in the Plaintiffs’ burden, they must show
more than similar outcomes in Canada and the United States;
they must instead show that the unlawful Canadian conduct
actuated, facilitated, or informed the U.S. conduct.16
       The District Court correctly found factual support for
the actuation theory lacking in this case, either in the form of
the U.S. Chocolate Manufacturers’ direct participation in or
knowledge of the Canadian conspiracy. First, the theory finds
no support in a 2007 email from Humberto Alfonso, a U.S.-
based Hershey executive, connecting Eric Lent, the new
General Manager of Hershey Canada, with Schulthorpe,
Cadbury Canada’s President. In the email, Alfonso wrote, “In
keeping with the good advice from ‘The Godfather,’ keep
close to your competition.” J.A. 8380. Because Alfonso
participated in the 2007 U.S. pricing decision, and perhaps
also because he appears to have referenced the sinister words



       16
         To the extent Dr. Vellturo’s opinion is based only on
similar outcomes, see supra note 15, it is insufficient on its
own to create a reasonable inference of a conspiracy.



                              38
of Michael Corleone from The Godfather Part II,17 the Direct
Purchaser Class wants us to infer something more sinister
from this social introduction—that Alfonso encouraged or
facilitated the Canadian conspiracy. But social contacts
between competitors without more are not unlawful. See Baby

. Without anything else to suggest
Alfonso’s further involvement in the Canadian conspiracy,
and with Alfonso’s sworn declaration that he sent the email
only as a social introduction and lacked knowledge of the
Canadian conspiracy, see J.A. 12996–97, we cannot read this
email as anything other than a social introduction.
       Nor does Leonidas, CEO of Nestlé Canada, establish
the necessary link between the Canadian and U.S. markets.
According to the Plaintiffs, Leonidas played a key role in the
Canadian conspiracy and regularly interacted with U.S.
executives, including with Nestlé USA’s team when Nestlé
considered buying Hershey in 2002. But this purported
common player did not have pricing authority for the U.S.
market and none of Leonidas’s documented communications
with U.S. executives hinted at illegal conduct in Canada,
leaving a significant gap in the inferences the Plaintiffs ask us
to draw to connect the two conspiracies.
        A set of emails from Hershey Canada executives to
Hershey executives in the U.S. is also not enough. In 2003,
Bruce Brown, Hershey Canada’s General Manager, emailed
Burt Snyder, the Interim President of Hershey International,
shortly after Nestlé Canada initiated a price increase.
Speaking of the Canadian market, Brown said he had “some
intelligence” that “[Mars] is anxious to follow [Nestlé’s] price

       17
         “My father taught me . . . keep your friends close,
but your enemies closer.” The Godfather Part II (Paramount
Pictures 1974).



                               39
increase but would rather have Hershey or Cadbury announce
ahead of them.” J.A. 7174. Brown went on to call Cadbury
“the wild card” because he had heard rumors of Cadbury
taking a price increase but also of Cadbury offering deep
discounts to certain stores. 

by
approving the proposed price increase. In 2005, Brown
emailed J.P. Bilbrey, the President of Hershey International,
to say Brown “had heard rumours swirling around about a
potential competitive price increase (Nestl[é]/Cadbury) in
Canada . . . and had it confirmed last week, although details
are sketchy.” J.A. 8316. And in October 2007, following a
meeting between Hershey Canada General Manager Lent and
Leonidas where Leonidas told Lent that Nestlé Canada would
be increasing prices, J.A. 11941, an email circulated among
Hershey executives in the U.S., noting that “[Lent] knows
Nestl[é]’s [p]ricing in Canada, and hears [Mars/Cadbury]
following,” and that Cadbury Canada and Nestlé Canada had
“floated” price increases. J.A. 8421–22. The October 2007
emails, however, made no reference to the meeting between
Lent and Leonidas.
       Even assuming the Plaintiffs are correct that an
inference could be drawn from these emails that some
Hershey executives in the United States were aware of the
Canadian conspiracy (an inference better supported by some
emails than others), that is all they show; they say nothing
about what Mars and Nestlé USA knew. Indeed, the record is
devoid of evidence showing that Mars and Nestlé USA knew




                             40
of the Canadian conspiracy.18 Even if the Canadian
conspiracy informed Hershey’s unilateral actions, it could not
have facilitated a U.S. conspiracy if two of the three
purported conspirators (including Mars, the price leader in all
three instances) were unaware of the Canadian conspiracy.
       In sum, under any of the theories presented by the
Plaintiffs, there must be a sufficient factual basis for the
Canadian conspiracy to be relevant to or facilitative of the
purported U.S. conspiracy. Because such evidence is lacking,

       18
          A September 2005 email from Don Robinson,
President of Mars Canada, to Robert Gamgort, President of
Mars North America, does not show that Mars executives in
the U.S. knew of the Canadian conspiracy. In that email,
Robinson said that “an industry wide price increase has been
rumoured for a few weeks” and reported the price increases
already taken and being taken by Mars Canada’s competitors.
J.A. 1395. Unlike the aforementioned 2003 Brown to Snyder
email, for example (which suggested that Hershey Canada
contemplated a coordinated response to a Nestlé Canada price
increase with its rivals), this Mars email does not include
information that tends to show a Canadian conspiracy.
        Nor does a March 2002 email from Frank Higgins,
Vice President of Marketing for Nestlé USA, to other Nestlé
USA executives show that Nestlé USA knew of the ongoing
Canadian conspiracy. In that email, Higgins reported on a
Hershey Canada price increase and promised he would “get[]
more information from Nestl[é] Canada to assess the
likelihood that they will increase prices in the US.” J.A. 7394.
This email shows that Nestlé USA monitored outcomes in
Canada but says nothing of whether Nestlé USA knew the
price increases there were the result of interdependence or a
conspiracy.



                              41
the contemporaneous Canadian conspiracy does not support a
reasonable inference of a U.S. conspiracy, and we move on to
consider other traditional conspiracy evidence.
              2.     Possession     of    advance      pricing
information
       The Plaintiffs also highlight evidence that they argue
shows that the Chocolate Manufacturers exchanged pricing
information before they publicly announced the price
increases. Specifically, the Plaintiffs point to an internal
Hershey document from 2002 reflecting that Hershey knew as
early as September 2002 that “Mars [wa]s considering a price
increase due to rising cocoa costs,” J.A. 5300, even though
Mars did not publicly announce a price increase until
December. According to the Direct Purchaser Class, only a
small group of Mars senior executives knew about the
planned price increase in September, and Hershey reacted by
changing its internal pricing system in anticipation of a price
increase, both of which, the Direct Purchaser Class argues,
support an inference that the information was more than
rumor and came from Mars executives. Hershey insists that it
did not obtain the information from Mars, citing an internal
pricing presentation from October 2002 stating that “[third]
party cocoa suppliers believe Mars will soon take a price
increase.” J.A. 4606. That Hershey had advance warning of
Mars’s price increase is further supported, the Plaintiffs
contend, by a memo from Hershey CEO Lenny to the
Hershey board stating that the Mars 2002 price increase was
“roughly in line with expectations,” J.A. 4620.
       Additionally, the Direct Purchaser Class points to a
2004 Hershey memo, again from Lenny to the Hershey board,
stating that Hershey “received confirmation that both Mars
and Nestl[é] have also raised their prices on loose bars.” J.A.




                              42
5276. Lenny’s statement came two days before Nestlé USA
publicly announced its price increase. According to the
Hershey vice president who passed the information about
Nestlé USA’s price increase on to Lenny, the information
came from a customer, not Nestlé USA. See J.A. 12999.
       The “mere possession of competitive memoranda” is
not evidence of concerted action to fix prices. Baby 

. In Baby Food, the plaintiffs also relied on
the defendants’ possession of documents that contained
competitor pricing information in advance of any public
announcements. Low-level employees gathered some of the
information, but the defendants provided no explanation as to
how they obtained other information. Still, we decided that
this evidence did not support the plaintiffs’ conspiracy claim.

that came from low-level employees, we
viewed it as less worrisome than if it had come from upper-
level executives. 

& n.8. We also insisted on
proof that such information “had an impact on pricing
decisions.” 

Even for the advance information from
unexplained sources, we noted that “it makes common sense
to obtain as much information as possible of the pricing
policies and marketing strategies of one’s competitors.” 

       In Flat Glass, we distinguished Baby Food and held
that the evidence showing possession of advance pricing
information supported an inference of conspiracy. The
evidence in Flat Glass showed that the information
exchanges occurred among the conspiring companies’ upper
ranks and that the exchanges affected prices. 

(citing example of a fax from one competitor to another
revealing the sender’s planned price increase and noting that
the fax recipient announced an identical price increase before
the fax sender). We summarized the evidence:



                              43
      [H]ere the exchanges of information are more tightly
      linked with concerted behavior and therefore they
      appear more purposive. Several of the key documents
      emphasize that the relevant price increases were not
      economically justified or supportable, but required
      competitors to hold the line. Others suggest not just
      foreknowledge of a single competitor’s pricing plans,
      but of the plans of multiple competitors. Predictions of
      price behavior were followed by actual price changes.
      The inference of concerted rather than interdependent
      action is therefore stronger.

spectrum of advance pricing evidence, the
Plaintiff’s evidence here is much closer to the evidence in
Baby Food than to the evidence in Flat Glass. The Plaintiffs
have no direct or strong circumstantial evidence that the
information came from Hershey’s competitors, much less
their upper-level executives. The information is also limited
to advance pricing information and, unlike in Flat Glass, does
not reveal pricing plans dependent on others following.
Furthermore, the two-day notice of Nestlé USA’s 2004 price
increase came after Hershey had already announced its price
increase, so it is hard to say it affected Hershey’s pricing
decision. Finally, the record shows that the Chocolate
Manufacturers’ pricing actions were intended to, and in some
cases did, catch their rivals by surprise. See J.A. 1261 (Mars
2002 internal document explaining how Mars leading a price
increase could “disrupt[] distracted competition”); J.A. 3641
(Hershey 2004 email from David West stating he was
“[a]ngry at [him]self” that Hershey did not anticipate Mars’s
2004 price increase on packaged products); J.A. 5274 (Mars




                             44
2007 email from Gamgort praising Mars’s 2007 price
increase as brilliantly timed because it “caught [Hershey] and
[Nestlé USA] totally by surprise”).
       In sum, gathering the price information of competitors
can be just as consistent with lawful interdependence as with
a price-fixing conspiracy. See Baby 

.
The evidence summarized above does not support an
inference of a conspiracy.
               3.     Opportunity           and       improper
communications
       The Plaintiffs also contend that the Chocolate
Manufacturers had opportunities to conspire during the
proposed sale of Hershey and at trade show meetings. The
Plaintiffs’ evidence is essentially that the executives from the
Chocolate Manufacturers were in the same place at the same
time, which is insufficient to support a reasonable inference
of concerted activity. See 

. Even
if we assume that Nestlé USA learned of Hershey’s
commodities cost coverage during the 2002 sale process




                              45
(which is far from clear),19 there is nothing to suggest that
Hershey and Nestlé USA used the sale process to hatch a
price-fixing conspiracy, especially because Mars, the price
leader in 2002, was uninvolved in the sale process. This
evidence of mere opportunities to conspire stands in stark
contrast to the evidence of secret meetings and
communications in the Canadian conspiracy and cannot alone
support an inference of a conspiracy.
       Relatedly, the Direct Purchaser Class argues that there
is evidence of improper communications among the
Chocolate Manufacturers’ employees and that these
communications support an inference of a conspiracy. The
Class cites (1) a 2004 email between Nestlé USA managers
showing that a Hershey employee had given a Nestlé USA
employee information about Hershey’s pricing promotions on
multipack products, J.A. 9270; (2) a January 2007 email
between two Mars sales executives about a conversation with
a Hershey manager and information learned about Hershey’s

      19
          Compare J.A. 7105 (2002 Hershey internal
document explaining that “the bidders conducted extensive
due diligence reviews and were provided with additional
information as requested (in some instances for competitive
and regulatory reasons only certain non-operational personnel
of potential bidders were provided information)”), and J.A.
13295–96 (Direct Purchaser Class’s expert acknowledging
the complete lack of record evidence showing that either
Nestlé S.A. or Nestlé USA received information about
Hershey’s commodities cost coverage), with J.A. 12843–45
(Cadbury officer acknowledging that Cadbury received
information about Hershey’s commodities cost coverage in an
email from an investment banker working for Hershey during
the sale process).



                             46
promotional activities, J.A. 9269; and (3) a September 2007
email between Mars executives relaying that one had
obtained information about costs from his counterpart at
Hershey, J.A. 9267. These sporadic communications among
individuals without pricing authority are insufficient to create
a reasonable inference of a conspiracy. See Baby 

. Moreover, the September 2007 communication
occurred after the 2007 price increase, so it could not have
affected the relevant pricing decisions. Accordingly, we will
not infer a conspiracy from this evidence.
              4.     Departure       from      pre-conspiracy
conduct
         The Plaintiffs argue further that the Chocolate
Manufacturers departed from their pre-conspiracy conduct by
deciding to follow price increases during the conspiracy
period and that this is traditional conspiracy evidence. For a
change in conduct to create an inference of a conspiracy, the
shift in behavior must be a “radical” or “abrupt” change from
the industry’s business practices. Toys “R” Us, Inc. v. FTC,

, 935 (7th Cir. 2000). The Plaintiffs have failed
to show such a shift here.
       First, the Plaintiffs’ argument is not premised on an
apples-to-apples comparison. To show a shift in conduct, the
Plaintiffs rely on a “failed” September 2001 price increase on
packaged candy initiated by Hershey. Instead of following the
price increase, Mars responded by reducing its weight on
M&M packaged candy and maintaining prices, but three
months later, Mars raised prices on miniatures packaged
chocolate candy. J.A. 6192–93. The Plaintiffs also cite a
January 2002 proposed price increase by Hershey on certain
boxed chocolates that Hershey rescinded when it received
pushback from customers. By contrast, the 2002 and 2007




                              47
parallel price increases involved only singles and kings, and
the 2004 parallel price increases involved singles and kings as
well as packaged candy. In fact, the Chocolate Manufacturers
did not exactly follow each other on packaged products in the
2002 price increases, lending further support to the notion
that different considerations factored into the pricing
decisions for immediate consumption products and future
consumption products. Putting aside the fact that Mars
actually responded to Hershey’s 2001 price increase and did
not simply stand pat, the “failed” price increases in 2001 and
early 2002 involved different products at different times than
the parallel price increases in 2002, 2004, and 2007.
        Second, the focus of the Plaintiffs’ argument is unduly
narrow. Historically, parallel pricing in the U.S. chocolate
market has not been at all uncommon. See J.A. 1087
(detailing parallel pricing in 1981 and 1983); J.A. 1105–06
(detailing a 1979 weight reduction on singles initiated by
Hershey and matched by Mars; a 1986 price increase on
singles, kings, and six packs initiated by Mars and matched
by Hershey; a 1991 price increase on singles, kings, and six
packs initiated by Hershey and matched by Mars; and a 1995
price increase on singles, kings, and six packs initiated by
Hershey and matched by Mars and Nestlé USA). Moreover,
after the alleged conspiracy period, the Chocolate
Manufacturers have raised prices in parallel three other times.
J.A. 2866–67. The Plaintiffs do not argue that all of these
parallel price increases resulted from an unlawful conspiracy,
so we fail to see why we should infer a conspiracy existed
between 2002 and 2007 from behavior that is in fact
consistent with how this industry has historically operated.
       Third, it is generally unremarkable for the pendulum in
oligopolistic markets to swing from less to more
interdependent and cooperative. See Areeda & Hovenkamp,



                              48
supra, ¶ 1431a, at 229 (noting that the degree of
interdependence “may be either weak or strong and may vary
from time to time within a given market”).
      Accordingly, the evidence presented by the Plaintiffs
does not show an abrupt shift in behavior that can support a
reasonable inference of a conspiracy.
              5.     Pretextual    explanations     for   price
increases
       Finally, we address the Plaintiffs’ argument that the
Chocolate Manufacturers’ pretextual explanations for their
price increases support a reasonable inference of a
conspiracy. See Fragale & Sons Beverage Co. v. Dill, 

, 474 (3d Cir. 1985) (recognizing that pretextual
explanations for disputed conduct “would disprove the
likelihood of independent action”). The Chocolate
Manufacturers publicly explained their price increases by
citing rising costs. The Plaintiffs contend these cost-based
explanations were cover for the real reason—to advance a
price-fixing conspiracy.
       The same evidence that we credited earlier as showing
that cost increases did not justify the price increases does not
necessarily show pretext, i.e., that the Chocolate
Manufacturers lied when they gave their cost-based
explanations for their price increases. The Plaintiffs
acknowledge that raw materials costs went up during this
period; they simply dispute whether the increases were
enough to justify the price increases. See J.A. 13892 (Tollison
Report) (acknowledging that “cocoa prices did rise during the
class period”); J.A. 6273–74 (same). Nor do the Plaintiffs
dispute that other input costs, such as labor and energy costs,
increased during this period.




                              49
        Moreover, contemporaneous internal documents show
that some who worked for the Chocolate Manufacturers were
concerned about cost increases during the conspiracy period.
See, e.g., J.A. 1031 (Nestlé USA 2002 internal document
suggesting budget revisions “due to increased cocoa prices”);
J.A. 1261 (Mars 2002 internal document proposing price
increase in December 2002 in part because of “emerging
material cost pressures” and because of belief that “all” the
Chocolate Manufacturers “will likely face significant cost
pressures in 2003”); J.A. 7649 (September 2002 email from
Hershey’s David West noting “organizational momentum
around pricing behind commodity prices,” but expressing
disagreement with that organizational view); J.A. 1114 (citing
March 2003 Hershey annual report that expressed concern
about cocoa costs going up in 2004). But see, e.g., J.A. 4619
(October 2002 report from Hershey CEO Lenny to the
Hershey board explaining cost coverage on cocoa through
2004); J.A. 7906 (December 2004 email from Hershey CEO
Lenny discussing how to publicly explain the 2004 price
increase given Hershey’s “outspoken[ness] about [Hershey’s]
‘coverage’ on cocoa and to a lesser extent on all input costs”).
Therefore, to the extent the Plaintiffs’ pretext argument is that
costs were going up but not enough to justify a price increase,
their showing of pretext is weak.
       But even if the evidence of pretext were stronger, it
would still be insufficient to survive summary judgment
because pretext alone does not create a reasonable inference
of a conspiracy. See Miles Distribs., Inc. v. Specialty Constr.
Brands, Inc., 

, 452 (7th Cir. 2007) (“[W]e hold
that [pretextual reasons] are insufficient to create a genuine
issue of fact without other evidence pointing to a price-fixing
agreement.”); DeLong Equip. Co. v. Washington Mills
Abrasive Co., 

, 1514 (11th Cir. 1989) (citing



                               50


) (same); H. L. Moore Drug Exch. v.
Eli Lilly & Co., 

, 941 (2d Cir. 1981) (“[T]he
mere fact that a business reason advanced by a defendant for
its [action] is undermined does not, by itself, justify the
inference that the conduct was therefore the result of a
conspiracy.”).
       Requiring something more than pretext to survive
summary judgment makes particular sense in cases like this
one. In their pretext argument, the Plaintiffs rely on the same
evidence they did in arguing that the Chocolate
Manufacturers acted contrary to their interests—evidence
which we have already said is insufficient to defeat summary
judgment. That evidence is also insufficient here. That rising
costs may not have been the full or even real reason for
increasing prices does not show whether the real reason was
interdependence or a conspiracy. Therefore, allegations of
pretext must be accompanied by other traditional conspiracy
evidence or economic evidence to create a reasonable
inference of a conspiracy. Because such other evidence is
lacking here, any evidence of pretext is insufficient to
preclude summary judgment.
       D.     Summary of the Evidence as a Whole
       Considering the evidence as a whole, the Plaintiffs
have failed to create a reasonable inference that the Chocolate
Manufacturers more likely than not conspired to fix prices in
the U.S. chocolate market. Compared to other cases where we
decided that summary judgment should not have been
granted, the Plaintiffs’ case here is relatively weak. Cf. Flat

(reversing summary judgment for the
defendants based in part on evidence about price increases
that required cooperation of competitors and coordinated
price increases suspiciously close in time to meetings and




                              51
communications involving the conspirators); 

–37 (reversing summary judgment for the
defendants based on witness testimony about a “code” among
the defendants not to compete on existing accounts and about
discussions of price fixing at trade association meetings;
taped conversations in which a conspirator told another
company to “play by the rules”; and economic evidence
showing that the only rational explanation for the price data
was an unlawful conspiracy).
       Evidence of a disconnected foreign conspiracy, limited
possession of advance pricing information, mere
opportunities to conspire without suspect meetings or
conversations about pricing, conduct that is consistent with
pre-conspiracy conduct, and a weak showing of pretext do not
support a reasonable inference of a conspiracy. Granted, we
held that some of this evidence individually was insufficient
“without more,” but taken together, the aforementioned
evidence does not provide the necessary “more” to survive
summary judgment. In short, all of this evidence is as
consistent with interdependence as with a conspiracy, and as
such, it does not tend to exclude the possibility that the
Chocolate Manufacturers acted lawfully.
       Although our analysis does not exactly mirror the
District Court’s, we agree with the District Court’s
conclusion: the evidence in this case calls for summary
judgment in favor of the Chocolate Manufacturers.
                            V.
      For the foregoing reasons, we will affirm the District
Court’s summary judgment.




                             52