TORRUELLA, Circuit Judge.
Plaintiff-Appellant Evergreen Partnering Group, Inc. ("Evergreen") appeals a summary judgment from the United States District Court for the District of Massachusetts against its Sherman Act section 1, 15 U.S.C. § 1, claim. Under its business model, Evergreen collected used polystyrene products, processed them into a recycled polystyrene resin ("recycled resin"), and sold its resin to converters to use in a "green foam" line of products. According to Evergreen, the five largest converters of polystyrene products — Dart Container Corporation ("Dart"), Dolco Packaging ("Dolco"), Genpak, LLC ("Genpak"), Pactiv Corporation ("Pactiv"), and Solo Cup Company ("Solo") — through the trade association American Chemistry Council ("ACC") (hereinafter referred to collectively as "the defendants") refused in concert to deal with Evergreen in order to prevent polystyrene recycling from becoming viable and maintain their respective market positions.
Michael Forrest founded Evergreen in 2000. Prior to the advent of Evergreen, other companies tried to recycle polystyrene products but had difficulty turning a profit. Evergreen envisioned that it could succeed where others had failed by obtaining revenue from three different sources.
First, Evergreen would charge an "environmental fee" to large end users (such as school districts that used polystyrene food trays in their cafeterias) for collecting their used polystyrene products. Because these institutions often paid waste disposal fees to transport their used polystyrene products to landfills, Evergreen believed they would be willing to pay the environmental fee. After collecting the used polystyrene products, Evergreen would transport them to its recycling plants to process into a recycled resin. Selling this recycled resin to polystyrene converters would form the basis of Evergreen's second revenue stream. These converters would use Evergreen's resin to create new polystyrene products and sell them to customers. As its third revenue stream (and of particular relevance to its lawsuit), Evergreen sought to charge converters a commission on the products sold containing its resin. Evergreen hoped the commission would keep the price of its resin competitive with virgin resin and believed the commission reflected the market's willingness to pay a premium for "green" products. Evergreen also believed its green foam products would bring the converters new customers because many of the suppliers of the used polystyrene products would also be interested in purchasing recycled products.
In furtherance of its goal to produce recycled resin, Evergreen began setting up its first independent recycling plant in Norcross, Georgia, in February 2005.
At the same time, Evergreen sought out partnerships with polystyrene converters. Between 2002 and 2005, Evergreen reached out to several small polystyrene converters but had little success. Evergreen then began targeting what it believed to be the five main national polystyrene converters — Dart, Dolco, Genpak, Pactiv, and Solo — the defendants in this case.
Early on, Dolco and Genpak showed interest in working with Evergreen. In July 2005, Forrest approached Dolco's General Manager for the Midwest Division, Norman Patterson, about the distribution company Sysco's interest in an "Earth Plus" product line containing Evergreen's resin. Initially, Patterson appeared receptive and representatives from Sysco, Dolco, and Evergreen met about a possible deal in November 2005. Dolco made a formal proposal to Sysco in December and told Evergreen it would be willing to pay a royalty to use its recycled resin as long as the relationship could be profitable. Sysco, however, eventually backed out and the deal fell through.
Additionally, towards the end of 2006, Evergreen met with Genpak. Genpak began making lunch trays with Evergreen's resin and submitted a bid to Gwinnett Schools (who was already paying Evergreen to remove their trays) to supply it with trays for the 2007-2008 academic year. Gwinnett Schools subsequently selected Genpak's $16.97 per case bid over Pactiv's $18.97 per case bid.
In 2007, Forrest approached Genpak's president, Jim Reilly, about financing a new Evergreen recycling plant in California as well as upgrades to Evergreen's Norcross facility. Reilly told Forrest he should submit his funding proposal to the Plastics Foodservice Packaging Group ("Plastics Group").
The Plastics Group is a subgroup of the ACC that focused on promoting plastic foodservice packaging. All five of the converter defendants were members of the Plastics Group at one time or another. By 2007, the Plastics Group was particularly concerned with local and state initiatives to ban polystyrene products due to the perception that polystyrene was not recyclable.
On May 14, 2007, the Plastics Group held a conference call with Forrest to discuss Evergreen's intention to expand to California. About a week later, Forrest submitted two proposals to the Plastics Group's Senior Director, Michael Levy, requesting that the Plastics Group help Evergreen
The Plastics Group held a conference call between its members on May 31, 2007, to discuss Forrest's proposals. Evergreen alleges that during this conference call, the defendants not only rejected funding Evergreen's proposals, but also agreed that no individual converter would enter any deal with Evergreen that involved the payment of commissions. In addition, Evergreen alleges that at this meeting the defendants agreed to promote a sham competitor called Packaging Development Resources of California, LLC ("PDR") — a California-based polystyrene recycler whose business model relied entirely on selling its recycled resin and had no commission component — to block Evergreen's access to polystyrene end users.
Following the May 31, 2007, conference call, Levy notified Forrest that the Plastics Group had rejected all of his proposals. Forrest submitted two additional proposals to the Plastics Group, which were also rejected. Without funding, Evergreen did not build a California recycling plant.
In the intervening months, Evergreen continued to negotiate with the defendants to try to obtain an agreement that included both the purchase of resin and the payment of commissions. Genpak and Dolco entered a joint funding agreement with Evergreen in July 2007, each agreeing to provide Evergreen with $75,000 and to purchase any "acceptable quality" resin that Evergreen produced for $0.85 per pound but rejecting any commission requirement. Evergreen also began negotiations with Solo. Solo purchased resin to test in May 2008 but stated it would not accept any deal that included a commission payment. In addition, Pactiv and Dart tested samples of Evergreen's resin throughout 2008 and 2009 without reaching an agreement.
Evergreen also found itself largely unable to attract customers who would pay Evergreen to remove their waste products or pay a premium for polystyrene products containing recycled resin. Although Genpak bid to supply Gwinnett Schools with trays containing Evergreen's resin for the 2008-2009 school year, it raised its price. Pactiv, in contrast, lowered its bid and won. No further purchase agreements between Evergreen, Genpak, or Dolco were executed.
In May 2008, Evergreen shut down its Norcross facility and opened a smaller recycling plant in Lawrenceville, Georgia. Evergreen subsequently shut down the smaller plant in October 2008 and ceased operations.
In May 2011, Evergreen and Forrest filed a complaint in district court alleging that the defendants agreed to boycott Evergreen in violation of section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The district court granted the defendants' motion
We reversed in
The crux of Evergreen's claim is that the defendants conspired to prevent its recycling model involving commission payments from becoming viable by universally rejecting any agreements that involved commissions and blocking its access to other customers through the promotion of PDR. Evergreen argues that these actions constitute a group boycott prohibited by section 1 of the Sherman Act.
"Section 1 [of the Sherman Act] may be violated `when a group of independent competing firms engage in a concerted refusal to deal with a particular supplier, customer, or competitor.'"
These antitrust principles influence our review on summary judgment. We review a district court's summary judgment decision
"[W]e `draw[] all reasonable inferences in favor of the non-moving party while ignoring conclusory allegations, improbable inferences, and unsupported speculation.'"
Evergreen first claims that the record shows that the Plastics Group decided during the May 31 call to favor PDR to Evergreen's detriment, providing unambiguous evidence of conspiracy. This in turn, Evergreen argues, bolstered the inferences that could have been drawn from all of the ambiguous evidence it presented.
Evergreen relies primarily on a deposition statement made by Robert Kingsbury of Dow Chemical
We agree with the district court that, when read in context, Kingsbury's statement does not have the meaning Evergreen ascribes. The full context of Kingsbury's deposition testimony is as follows:
We do not think Kingsbury's statement about picking a winner can reasonably — let alone unambiguously — be construed as meaning that the Plastics Group decided to throw its support behind PDR to Evergreen's detriment during the conference call. In context, Kingsbury's statement cannot be interpreted as referring to winners and losers in any kind of anticompetitive sense. Rather, Kingsbury simply meant that the Plastics Group wanted to support proposals that would be successful —
Our interpretation of Kingsbury's statement is not changed by other statements cited by Evergreen that it interprets as showing that Senior Director Levy maneuvered to position PDR favorably before the May 31 call. Evergreen first claims that in documents leading up to meeting, Levy described PDR more favorably as an "opportunity" while Evergreen was referred to as simply having a "proposal." It also cites an email it views as showing that Levy instigated the placement of a favorable (and misleading) story about PDR in a trade newspaper prior to the May 31 call; in that same email, Levy stated he wanted to "ease our guys into getting interested and making contact with ... PDR." Finally, Evergreen cites minutes from a March 2007 Plastics Group meeting
Reviewing these documents, we do not think a reasonable factfinder would view them as supporting an inference of favoritism towards PDR. With respect to the "opportunity" language, Levy's correspondence shows that he was still familiarizing himself with PDR and hoping to learn more about their business. Unlike Evergreen, PDR, as of May 2007, was not seeking assistance from the Plastics Group such that it had no formal "proposal" to consider. The use of the word "proposal," however, made sense with respect to Evergreen given that Forrest had submitted funding proposals. Moreover, all of the documents Evergreen points us toward state that PDR would be discussed at a separate meeting, and nothing in the record contradicts this.
With respect to the favorable and misleading
As to the March 2007 meeting, the full agenda item in the meeting minutes states, "What to do with [Evergreen], Recycling Professionals & Timbron regarding these recycling pilot programs and taking it further?... timing? [sic] Or How [sic] do we make it work as a long term solution." We do not believe a rational factfinder could conclude that this item suggested the Plastics Group was considering sabotaging Evergreen. Rather, these minutes simply state the Plastics Group discussed whether or not to provide support to several polystyrene recyclers, including Evergreen.
After reviewing the context surrounding the May 31, 2007, conference call, we do not view Kingsbury's statement as direct evidence of a conspiracy against Evergreen. Without this statement, Evergreen's argument that the Plastics Group, in fact, favored PDR over Evergreen is considerably weakened. Evergreen claims that the Plastics Group prevented it from obtaining access to polystyrene end users who could either supply used polystyrene products (which Evergreen could recycle into resin) or purchase polystyrene products containing Evergreen's recycled resin. All Evergreen cites, however, is evidence that the Plastics Group introduced PDR to polystyrene users — there is no evidence that the Plastics Group discouraged these users from working with Evergreen, let alone maneuvered to block Evergreen's access. We note that antitrust laws allow trade associations to make nonbinding recommendations about businesses and products.
Evergreen acknowledges that all other evidence it cites is not direct but argues that, taken together, this evidence creates a reasonable inference of conspiracy. Evergreen begins with citing the fact that each of the converter defendants refused to pay commissions on any products sold containing Evergreen's recycled resin and argues each converter had economic motive to collude.
We have previously stated that, in the context of price-fixing schemes, "[m]ere parallelism ... does not even create a prima facie conspiracy case."
Our decision in
This theory, however, acknowledges that any agreement with Evergreen would cause the defendants to incur additional costs. The defendants' desire to avoid these costs is especially understandable in light of the overwhelming evidence that they each experienced significant quality problems with Evergreen's resin. Both Dolco and Genpak, defendants who entered into a funding agreement with Evergreen, complained to Evergreen that its resin had a bad odor; Genpak's Patterson also notified Evergreen that its resin had high levels of bacterial contamination.
We thus now turn to the "plus factors" Evergreen alleges support an inference of conspiracy. Plus factors are "proxies for direct evidence of an agreement."
The production of traditional conspiracy evidence seems particularly important in Evergreen's case because we agree with the district court that there is substantial evidence
As discussed below, Evergreen argues many so-called-plus-factors make its conspiracy claim viable: statements it views as reflecting animus towards recycling and its business, the existence of a trade association, and PDR's "sham" status. This evidence, however, viewed in context, is either not traditional conspiracy evidence or does not have the meaning Evergreen ascribes to it.
Evergreen argues that it presented evidence showing that the polystyrene industry was anti-recycling and therefore the converter defendants had motive to conspire. The defendants argue that this evidence is largely inadmissible hearsay contained in either unverified documents or Forrest's affidavit.
We give more consideration, however, to evidence Evergreen claims shows that representatives of the converter defendants were told not to deal with Evergreen. If this evidence were admissible and Evergreen's inferences reasonable, it would fit within the traditional conspiracy evidence we described in
Evergreen also cites statements by Dolco that it believes suggest that Dolco was susceptible to anti-recycling pressure by Pactiv and Dart.
Finally, Evergreen alleges that Genpak engaged in various behaviors when dealing with Gwinnett Schools suggesting that it was reluctant to bid with its tray made from Evergreen's resin against Pactiv. Evergreen claims Reilly (unsuccessfully) tried to retract Genpak's first bid for the Gwinnett Schools contract in 2007.
As an additional plus factor, Evergreen cites our statement in
Finally, Evergreen cites to the Plastics Group's promotion of a "sham" competitor. In
Evergreen contends that PDR was not actually operational and landfilled the trays it collected. Evergreen first cites documents that it interprets as showing that PDR did not produce resin despite entering into agreements with Pactiv and Dart between 2006 and 2008. Evergreen also cites deposition testimony by one of PDR's founders, Tom Preston, admitting that PDR landfilled the lunch trays it collected (rather than turning them into a recycled resin) and its converter partners were never able to sell a product containing its resin. Evergreen further cites observations of PDR's facility by both Forrest and Levy in 2007 finding it padlocked and nonoperational.
We start by addressing Preston's deposition testimony. All this testimony establishes is that PDR landfilled trays when it first started operating and again when it began shutting down. As explained by Preston, the trays had a limited time frame in which they could be converted into resin. Beginning in 2006, PDR collected trays from the San Diego Unified School District. But because PDR did not have the capacity to process all of the trays and turn them into resin within the given time period, it had to landfill many of the trays it collected. Preston also acknowledged, that in late 2008, PDR was again landfilling most of the trays it collected because it was running a "skelet[al] operation." These statements about PDR's start-up and end stages do not create a reasonable inference that PDR was never operational.
Similarly, even accepting as true that PDR showed no signs of activity when Forrest and Levy visited (in May 2007 and June 2007 respectively), two nonoperational days alone do not create a reasonable
Viewing, in combination, all the admissible evidence that the parties submitted, and drawing all reasonable inferences in Evergreen's favor, we conclude that Evergreen has failed to provide evidence that suffices to raise a reasonable inference of unlawful action.
Because we find no genuine issue of material fact as to whether a conspiracy existed, we need not go further and address the defendants' various alternative bases for affirmance. For the foregoing reasons, we affirm the district court's grant of summary judgment.