PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 16-1345
                        ___________

               VALSPAR CORPORATION;
               VALSPAR SOURCING, INC.,
                                Appellant

                              v.

     E. I. DU PONT DE NEMOURS AND COMPANY
                     __________

      On Appeal from the United States District Court
                 for the District of Delaware
                  (D.C. No. 1-14-cv-00527)
      District Judge: Honorable Richard G. Andrews
                         ___________

                 Argued March 9, 2017
    Before: HARDIMAN and KRAUSE, Circuit Judges,
           and STENGEL,* Chief District Judge.

                 (Filed: September 14, 2017)

      *
         The Honorable Lawrence F. Stengel, Chief United
States District Judge for the Eastern District of Pennsylvania,
sitting by designation.
James M. Lockhart [Argued]
James P. McCarthy
Kathryn E. Wendt
Lindquist & Vennum
80 South 8th Street
2000 IDS Center
Minneapolis, MN 55402

Frederick L. Cottrell, III
Jason J. Rawnsley
Chad M. Shandler
Richards Layton & Finger
920 North King Street
One Rodney Square
Wilmington, DE 19801
       Counsel for Plaintiffs-Appellants

Randa Adra
Crowell & Moring
590 Madison Avenue
20th Floor
New York, NY 10022

Clifton S. Elgarten
Shari R. Lahlou [Argued]
Benjamin C. Wastler
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004




                              2
Kathleen F. McDonough
John A. Sensing
Potter Anderson & Corroon
1313 North Market Street
Wilmington, DE 19801
       Counsel for Defendant-Appellee

Richard M. Brunell
American Antitrust Institute
Suite 1100
1730 Rhode Island Avenue, N.W.
Washington, DC 20036
       Counsel for American Antitrust Institute as Amicus
       Curiae in support of Plaintiff-Appellant
                       ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge

        This appeal involves an alleged conspiracy to fix prices
in the titanium dioxide industry in violation of Section 1 of the
Sherman Act. Appellant Valspar, a purchaser of titanium
dioxide, claimed Appellee DuPont conspired with other
titanium dioxide suppliers to fix prices. Valspar argued that the
price-fixing agreement was made manifest primarily by thirty-
one parallel price increase announcements issued by the
suppliers. DuPont countered that the parallel pricing was not
the product of an agreement, but rather the natural consequence
of the marketplace. Specifically, DuPont posited that because
the market for titanium dioxide is an oligopoly, the price




                               3
movement was caused by “conscious parallelism”—an
economic theory that explains oligopolists will naturally
follow a competitor’s price increase in the hopes that each
firm’s profits will increase. The District Court agreed with
DuPont and granted its motion for summary judgment. We will
affirm.

                               I

       The facts of this case were essentially undisputed in the
District Court. The parties agree that the market for titanium
dioxide is an oligopoly. Titanium dioxide is a commodity-like
product with no substitutes, the market is dominated by a
handful of firms, and there are substantial barriers to entry.

       Valspar, a large-scale purchaser of titanium dioxide,
alleges that a group of titanium dioxide suppliers conspired to
increase prices. It claims that the conspiracy began when
DuPont—the largest American supplier—joined the Titanium
Dioxide Manufacturers Association (TDMA) in 2002, when
the association opened participation to non-European
companies. Shortly after joining the TDMA, DuPont
announced a price increase. Within two weeks, DuPont’s price
increase was matched by Millennium, Kronos, and Huntsman
(other TDMA members and members of the alleged
conspiracy). This began what Valspar alleged to be the
“Conspiracy Period”— twelve years during which the alleged
conspirators announced price increases 31 times.

       Valspar claims the conspiracy ended in late 2013 when
DuPont exited the TDMA. According to Valspar’s
calculations, the conspirators inflated the cost of titanium
dioxide by an average of 16%. Because Valspar purchased
$1.27 billion of titanium dioxide from DuPont during the




                               4
relevant period, it claims it was overcharged to the tune of $176
million.

                               II

        In 2010, a class of titanium dioxide purchasers filed a
price-fixing action against the suppliers in the United States
District Court for the District of Maryland. Valspar opted out
of that class and the remaining defendant suppliers settled the
case after they were denied summary judgment. See In re
Titanium Dioxide Antitrust Litig., 

, 832 (D.
Md. 2013). Valspar then filed its own claim in the United
States District Court for the District of Minnesota, which was
subsequently severed. Valspar settled all claims except this one
against DuPont, which was transferred to the United States
District Court for the District of Delaware, where DuPont
moved for summary judgment. Although presented with
“substantially the same record . . . as in the Maryland Class
Action,” the District Court reached a “different conclusion.”
Valspar Corp. v. E.I. Du Pont De Nemours, 

, 252 (D. Del. 2016). Reviewing the record and our Court’s
precedents, the District Court found that “evidence of an actual
agreement to fix prices” was “lacking.” 

Reasoning
that such evidence is necessary for a plaintiff to survive
summary judgment, the District Court granted DuPont’s
motion. 

District Court had jurisdiction under 28 U.S.C. §
1331. We have appellate jurisdiction under 28 U.S.C. § 1291.
Our standard of review is intertwined with substantive antitrust




                               5
law and the parties dispute its contours. We therefore begin by
reviewing the applicable law.

                               A

        Section 1 of the Sherman Act prohibits “[e]very
contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade.” 15 U.S.C. § 1. Unlike § 2 of
the Sherman Act, which addresses monopolization and other
illegal unilateral conduct, § 1 applies only when there is an
agreement to restrain trade; so a single firm’s independent
action, no matter how anticompetitive its aim, does not
implicate § 1. Monsanto Co. v. Spray-Rite Serv. Corp., 

, 761 (1984). While some offenses under § 1 are
reviewed for reasonableness, Leegin Creative Leather Prods.,
Inc. v. PSKS, Inc., 

, 885–86 (2007), others have
no possible competitive virtue and are therefore per se illegal,
Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 

,
19–20 (1979). Horizontal price fixing (i.e., price fixing among
competitors) is one such per se violation because it is a “threat
to the central nervous system of the economy.” United States
v. Socony-Vacuum Oil Co., 

, 224 n.59 (1940).

        Oligopolies pose a special problem under § 1 because
rational, independent actions taken by oligopolists can be
nearly indistinguishable from horizontal price fixing. This
problem is the result of “interdependence,” which occurs
because “any rational decision [in an oligopoly] must take into
account the anticipated reaction of the other firms.” In re Flat
Glass Antitrust Litig., 

, 359 (3d Cir. 2004)
(alteration omitted) (quoting Philip E. Areeda & Herbert
Hovenkamp, Antitrust Law 207 (2d ed. 2000)). In a market
with many firms, “the effects of any single firm’s price and
output decisions ‘would be so diffused among its numerous




                               6
competitors that they would not be aware of any change.’” 

& 

). The opposite
is true in an oligopoly, where any price movement “will have
a noticeable impact on the market and on its rivals.” 

& 

); see also In re
Text Messaging Antitrust Litig., 

, 875 (7th Cir.
2015) (oligopolists “watch each other like hawks”).

        This      “oligopolistic    rationality”   can      cause
supracompetitive prices because it discourages price
reductions while encouraging price increases. A firm is
unlikely to lower its price in an effort to win market share
because its competitors will quickly learn of that reduction and
match it, causing the first mover’s profits to decline and a
subsequent decline in the overall profits of the industry. Flat

. Similarly, if a firm announces a price
increase, other market participants will know that “if they do
not increase their prices to [the first-mover’s] level, [the first-
mover] may be forced to reduce its price to their level. Because
each of the other firms know this, each will consider whether
it is better off when all are charging the old price or [the new
one]. They will obviously choose [the new price] when they
believe that it will maximize industry profits.” 

& 

–08).

       The Supreme Court has explained that this behavior
does not violate antitrust laws. See Brooke Grp. Ltd. v. Brown
& Williamson Tobacco Corp., 

, 227 (1993). Even
though such interdependence or “conscious parallelism” harms
consumers just as a monopoly does, it is beyond the reach of
antitrust laws for two reasons. First, some courts and scholars
theorize “that interdependent behavior is not an ‘agreement’
within the term’s meaning under the Sherman Act.” Flat 

(citing Donald F. Turner, The Definition of




                                7
Agreement Under the Sherman Act: Conscious Parallelism
and Refusals to Deal, 75 Harv. L. Rev. 655, 663–65 (1962)).
And second, “it is close to impossible to devise a judicially
enforceable remedy for ‘interdependent’ pricing.” Clamp-All
Corp. v. Cast Iron Soil Pipe Inst., 

, 484 (1st Cir.
1988) (Breyer, J.). The problem is this: “How does one order a
firm to set its prices without regard to the likely reactions of its
competitors?” 

faced with whether a plaintiff has offered
sufficient proof of an agreement to preclude summary
judgment, a court must generally apply the same summary
judgment standards that apply in other contexts.” Flat 

. Accordingly, a court will enter summary
judgment when the evidence shows “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). As in other summary
judgment contexts, we “review the record as a whole and in the
light most favorable to the nonmovant, drawing reasonable
inferences in its favor.” In re Chocolate Confectionary
Antitrust Litig., 

, 396 (3d Cir. 2015).

       However, we have recognized there is “an important
distinction” to this general standard in antitrust cases. Flat

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

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




                                 8
Id.1 The reason for this more rigorous standard is that mistaken
inferences are especially costly in antitrust cases, since they


       1
         As Valspar and our dissenting colleague point out,
Matsushita involved an alleged conspiracy that did not make
“economic 

, and the Court declined to
draw liberal inferences because the defendants “had no rational
economic motive to conspire,” 

While these unlikely-
to-succeed conspiracies provide one good reason to be
circumspect in our inferences, we have explained that
oligopolistic interdependence provides another good reason for
inferential modesty. See Flat 

(“[D]espite the absence of the Matsushita Court’s concerns,
this Court and others have been cautious in accepting
inferences from circumstantial evidence in cases involving
allegations of horizontal price-fixing among oligopolists.”
(emphasis added)); 

(explaining that
“despite the facial plausibility of the Plaintiff’s theory and the
circumstantial evidence supporting it, we must be
cautious. . . . [since] the U.S. chocolate market is a textbook
example of an oligopoly and we cannot infer too much from
mere evidence of parallel pricing among oligopolists” (citation
omitted)).

       While the dissent’s interpretation of Matsushita is
reasonable, it is contrary to Third Circuit jurisprudence. In
Chocolate, we held that a plaintiff in an oligopoly case must
provide inferences that show that the alleged conspiracy is
“more likely than 

. And in Flat Glass, we
considered and rejected the dissent’s more limited reading of
Matsushita by acknowledging that some scholars think our
extension of Matsushita is “an unfortunate misinterpretation”




                                9
could penalize desirable competitive behavior and “chill the
very conduct the antitrust laws are designed to protect.” 

       With those principles informing our analysis, this Court
has developed specialized evidentiary standards at summary
judgment in antitrust cases in general and in oligopoly cases in
particular. Our analysis often begins with evidence of parallel
price movements. See 

. In non-
oligopolistic markets, “[p]arallel behavior among competitors
is especially probative of price fixing because it is the sine qua
non of a price fixing conspiracy.” Southway Theatres, Inc. v.
Ga. Theatre Co., 

, 501 (5th Cir. Unit B 1982). But
in an oligopolistic market, parallel behavior “can be a
necessary fact of life,” In re Baby Food Antitrust Litig., 

, 122 (3d Cir. 1999), and “[a]ccordingly, evidence of
conscious parallelism cannot alone create a reasonable


of that case while nonetheless continuing our “circumspect

& n.9 (citation omitted).
       2
          If a plaintiff provides direct evidence, then the
“strictures of Matsushita [do] not apply.” Petruzzi’s IGA
Supermarkets, Inc. v. Darling-Delaware Co., 

,
1233 (3d Cir. 1993). That is because “no inferences are
required from direct evidence to establish a fact and thus a
court need not be concerned about the reasonableness of the
inferences to be drawn from such evidence.” 

does not involve direct evidence of conspiracy, and
such evidence is rare in price-fixing cases. See In re Plywood
Antitrust Litig., 

, 633 (5th Cir. 1981)
(“[S]olemnized covenants to conspire are difficult to come by
in any price fixing case.”).




                               10
inference of a conspiracy,” 

.
Therefore, to prove an oligopolistic conspiracy with proof of
parallel behavior, that evidence “must go beyond mere
interdependence” and “be so unusual that in the absence of an
advance agreement, no reasonable firm would have engaged in
it.” Baby 

.

       Because proof of parallel behavior will rarely itself
create an inference of conspiracy, a plaintiff will often need to
“show that certain plus factors are present” in order “[t]o move
the ball across the goal line.” 

–99.
“Plus factors are proxies for direct evidence because they tend
to ensure that courts punish concerted action—an actual
agreement.” 

and citations 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.” 

        While normally all three plus factors are weighed
together, in the case of oligopolies the first two factors are
deemphasized because they “largely restate the phenomenon
of interdependence.” Flat 

. Put another
way, “[e]vidence 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.” 

. Since those
qualities are intrinsic to oligopolies, we instead focus on the
third plus factor: “evidence implying a traditional conspiracy.”
Flat 

(citation omitted). To meet this
factor, we require “proof that the defendants got together and
exchanged assurances of common action or otherwise adopted
a common plan even though no meetings, conversations, or




                               11
exchanged documents are shown.” 

(citations
omitted).3


       3
         Valspar seems to argue that proof of a tacit agreement
among the suppliers—that is, an awareness that they were
engaging in conscious parallelism—should suffice to meet this
factor. We disagree. While tacit agreements remain illegal
under § 1, Bell Atl. Corp. v. Twombly, 

, 553
(2007), the third plus factor requires evidence implying
traditional (i.e., explicit) conspiracy. See Flat 

(requiring proof of an “actual, manifest agreement not
to compete” (citation omitted)). As a practical matter, tacit
conspiracy and conscious parallelism are difficult to
differentiate, if such differentiation is possible at all. See
Andrew Gavil, Antitrust Law in Perspective: Cases, Concepts,
and Problems in Competition Policy 311 (2d ed. 2008) (“[The]
boundary between tacit agreements—to which Section 1
applies—and parallel pricing stemming from oligopolistic
interdependence” is not clear.); George A. Hay, Horizontal
Agreements: Concept and Proof, 51 Antitrust Bull. 877, 894–
95 & n.46 (2006) (theorizing how to distinguish between a tacit
agreement and oligopolistic interdependence—“[i]f that can be
done”—while noting that the distinctions might totally be lost
on a jury). We have tried to eradicate this confusion by placing
emphasis on the third plus factor and requiring “traditional
conspiracy” evidence. See Flat 

–61. In
other words, we realized that the type of evidence that might
prove a “tacit” conspiracy (e.g., motive, actions against self-
interest, parallel behavior, etc., Interstate Circuit v. United
States, 

, 225–28 (1939)) in the context of
oligopolies can be unhelpfully equivocal, and thus decided to
focus on evidence generally required to show an explicit,




                               12
       After evaluating the evidence through our plus factor
analysis, we then assess whether, “[c]onsidering the evidence
as a whole,” it is “more likely than not [that the defendants]
conspired to fix prices.” 

.4 This
Court has at times employed different approaches for sifting
through the proffered evidence. Compare Flat Glass, 

–69 (summarizing all of plaintiff’s evidence without
editorializing, and then performing an “Analytical Summary”


manifest agreement. Moreover, the sort of proof that would
generally count towards proving a tacit conspiracy is largely
accounted for in different parts of our oligopoly summary
judgment framework. See Baby Food¸166 F.3d at 121–23, 130
(considering parallel pricing before the plus factors); Flat

(considering actions against self-
interest and motive as part of first two plus factors). Although
we do not rule out the possibility that evidence of a tacit
agreement could suffice to meet this factor when a plaintiff also
offers non-economic evidence of a traditional conspiracy—for
example, when Company A proposes a parallel price increase
to Company B, and Company B does not explicitly agree but
then follows suit when Company A raises its prices, see

—economic evidence alone cannot
demonstrate a tacit agreement under our oligopoly cases.
       4
         While the dissent wonders what it will “now take for
a plaintiff relying on circumstantial evidence to move the ball
across the goal line,” Dissent at 6, the above precedents already
resolve that question. Namely, the plaintiff’s inferences must
show that conspiracy is “more likely than not.” 

. That may be a high bar—but it is the bar
established by this Court and binding on this panel.




                               13
to decide whether the body of evidence made conspiracy more
likely than not), with 

–12 (looking
at individual groupings of evidence to see whether any
“supported an inference of conspiracy,” 

and then
taking a holistic view of the evidence in context and
determining that “it does not tend to exclude the possibility that
[defendants] acted lawfully,” 

Whatever method is
used, the bottom line is that “a plaintiff relying on ambiguous
evidence alone cannot raise a reasonable inference of a
conspiracy sufficient to survive summary judgment,”

, but—like in all other summary
judgment cases—that evidence must be viewed in the context
of all other evidence, Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 

, 1364–65 (3d Cir. 1992).

                               IV

       We now turn to the evidence of record, which we will
evaluate in light of the principles just outlined. We first
consider the parallel pricing evidence, then move to evidence
under the plus factors, and finally consider the record in toto.

                                A

                                1

        Valspar bases its case primarily on the 31 parallel price
increase announcements issued by the competitors during the
alleged conspiracy, arguing that it is “inconceivable” that, on
31 occasions, the competitors “conduct[ed] independent
analyses . . . [and] nearly simultaneously arrived at identical
price increase amounts to be implemented on exactly the same
day.” Valspar Br. 37.




                               14
        Valspar’s argument fails for two reasons. First, its
characterization of the suppliers’ price announcements
neglects the theory of conscious parallelism and flies in the
face of our doctrine that in an oligopoly “any rational decision
must take into account the anticipated reaction of the other . . .
firms.” Baby 

(emphasis added)
(citations omitted).5 Thus, DuPont does not claim that the
competitors’ numerous parallel price increases were discrete
events—nor could it do so with a straight face. But it doesn’t
need to. The theory of interdependence recognizes that price
movement in an oligopoly will be just that: interdependent.
And that phenomenon frequently will lead to successive price
increases, because oligopolists may “conclude that the industry
as a whole would be better off by raising prices.” 

.6




       5
          Indeed, this same mistake pervades Valspar’s
argument. As the District Court aptly explained, Valspar
generally “neglects the theory of interdependence.” 

. For example, despite the central role
“conscious parallelism” and “interdependence” play in our
oligopoly caselaw, each of those phrases appear only once in
Valspar’s opening brief.
       6
         Valspar also notes that the suppliers’ executives
denied engaging in “follow the leader pricing.” Valspar Br. 15.
Essentially, Valspar is arguing that we should infer a
conspiracy from this potential pretext. That argument fails
under our caselaw because “pretextual reasons are insufficient
to create a genuine issue of fact without other evidence
pointing to a price-fixing agreement.” 

        Second, Valspar does not engage this Court’s
demanding rule that in order to raise an inference of conspiracy
on this point, it was required to show that the suppliers’ parallel
pricing went “beyond mere interdependence [and was] so
unusual that in the absence of advance agreement, no
reasonable firm would have engaged in it.” Baby 

. Valspar never cites this important controlling
precedent, nor does it attempt to show how it might be met.

       Apart from Valspar’s failure to carry its burden, DuPont
demonstrates that “market realities . . . clearly controvert
[Valspar’s] contention” that these announcements are evidence
of a conspiracy. 

First, supply contracts in the
titanium dioxide industry contained price-protection clauses
requiring a notice period to customers before a price increase,
meaning that if a supplier failed to match a competitor’s
announcement, it was foregoing the possibility of negotiating
a price increase during that period. These industry-wide
contractual provisions made the benefit of matching a price
increase announcement high and the risk minimal: if a
competitor later undercut that price in an effort to take market
share, the supplier could refrain from implementing the price
increase or even respond by lowering its price. Second, DuPont
demonstrated that the market for titanium dioxide remained
competitive     despite    the    frequent     price    increase
announcements. Indeed, Valspar employees testified that it
was “very common” to negotiate away a supplier’s attempt to
increase price, DuPont Br. 6, and said that “[o]ften . . . an
aggressive supplier would be interested in achieving more
volume and would come in and offer a [lower] price,” 

411 (alterations omitted) (quoting Miles Distribs. v. Specialty
Constr. Brands, Inc., 

, 452 (7th Cir. 2007)).




                                16
Across all suppliers’ attempted price increases, Valspar was
able to avoid that increase (or even negotiate a decrease) one-
third of the time. Thus, Valspar’s characterization of this
evidence is controverted by market realities; “aggressive” and
“common” price competition between firms is inconsistent
with the idea that those same firms have conspired not to
compete on price.7

                                 2

       Valspar also advances the related argument that the
flurry of price announcements reflects a drastic change from
pre-conspiracy behavior in the titanium dioxide market. A
change in industry practices must be “radical” or “abrupt” to
“create an inference of a conspiracy.” 

(citation omitted). Valspar claims to have met this standard
because there were only three parallel price increase
announcements before the alleged conspiracy period (as
compared to the thirty-one during the conspiracy period).


       7
         Thus, the circumstances here are different than those
in Flat Glass, where we stated that “[a]n agreement to fix
prices is a per se violation of the Sherman Act even if most or
for that matter all transactions occurred at lower [than list]

(citation and alteration omitted). Here,
we find significant not just that actual prices occurred below
announced prices, but that actual prices occurred below
announced prices because alleged conspirators frequently
undercut other members of the alleged conspiracy. We are
mindful that a “failed attempt to fix prices” is illegal, 

but it is likewise significant that the alleged conspirators
behaved contrary to the existence of a conspiracy.




                                 17
       We disagree. In Chocolate, the plaintiffs advanced a
similar argument, relying on an increased frequency in parallel
pricing activity from pre-conspiracy behavior. There, we
explained that “the focus of the Plaintiffs’ argument is unduly
narrow” because “[h]istorically, parallel pricing in the U.S.
chocolate market has not been at all uncommon.” 

. Here too, public parallel price increase
announcements are “consistent with how this industry has
historically operated.” 

(quoting 

). Similarly, when other
courts have found a radical or abrupt change to indicate
conspiracy, that change has generally been more than just an
uptick in frequency of a pre-established industry practice. See
Toys “R” Us, Inc. v. FTC, 

, 935 (7th Cir. 2000)
(group of toy distributors unanimously stopped dealing with
warehouse clubs after years of that being an industry norm).
That logic rings particularly true in this context because “it is
generally unremarkable for the pendulum in oligopolistic
markets to swing from less to more interdependent and
cooperative.” 

(citing Areeda &

).

                                B

        Having found that the pattern of parallel price increases
does not raise an inference of conspiracy, we next turn to
Valspar’s argument that the plus factors evidence a conspiracy.
As explained above, this Court has developed a specialized
rule that in oligopolistic markets, “‘the first two factors largely
restate the phenomenon of interdependence,’ . . . [which]
leaves traditional non-economic evidence of a conspiracy as
the most important plus factor.” 

(citation omitted). Tellingly, Valspar ignores this important
point and instead emphasizes why the first two plus factors are




                                18
met. Valspar’s “victory . . . is a hollow one,” however, having
succeeded in showing interdependence but not conspiracy. 

                                1

         The first factor relates to motive to enter a conspiracy,
i.e., that “the market is conducive to price fixing.” 

There is little doubt that this highly concentrated market for a
commodity-like product with no viable substitutes and
substantial barriers to entry was conducive to price fixing.

        The second plus factor looks for evidence of action
against self-interest, i.e., “evidence that the market behaved in
a noncompetitive manner.” Flat 

(citation omitted). Valspar presents evidence that there was “a
16% overcharge” and that “price increases were not correlated
to supply-and-demand principles.” Valspar Br. 57. While true,
this is largely irrelevant because it ignores the fact that “firms
in a concentrated market may maintain their prices at
supracompetitive levels, or even raise them to those levels,
without engaging in any overt concerted action.” Flat 

.8


       8
         Although the first two plus factors may, at times, “do
more than restate economic interdependence,” Flat 

n.12, Valspar has not shown that they do so here.
For example, despite the dissent’s insistence to the contrary,
there is no evidence of record showing “unilateral exchanges
of confidential price information,” which is one example of an
action against self-interest that may not simply be a result of
interdependence. See Dissent at 10 (quoting Flat 

n.12); see also infra Part IV-B-2 (discussing the




                               19
       Most of Valspar’s other economic expert evidence
addresses the first two plus factors as well. See Flat 

(explaining that the third plus factor is where “non-
economic evidence” should be considered (emphasis added)).
For example, Valspar notes that its expert “concluded there
was economic evidence of ability to enforce their price-fixing
agreement,” and “found from an economic point of view the
markets were relatively stable.” Valspar Br. 41, 43. From
findings like these, Valspar argues that “the district court
should have accepted [the expert’s] economic conclusions”
that the competitors could not have acted independently.
Valspar Br. 42. This gets things backwards. There is no dispute
that the market was primed for anticompetitive
interdependence and that it operated in that manner. Valspar’s
expert evidence confirming these facts mastered the obvious.9



information exchanges shown to have occurred between the
suppliers).
       9
        In addition, Valspar would have us give the expert’s
conclusion an outsized role in the summary judgment analysis.
While we have explained that a district court should not
“impermissibly weigh[]” expert evidence by picking out
“potential flaws,” 

, that does not
mean that a district court is obligated to accept an expert’s legal
conclusions, Dalberth v. Xerox Corp., 

, 189 (2d
Cir. 2014). Although Valspar’s expert, Dr. Williams,
concluded that its evidence excludes the inference that the
competitors acted independently, that conclusion was based on
predicates that are insufficient under our caselaw. For example,
Dr. Williams took the type of evidence that we have said is of
diminished value in the oligopoly context (i.e., parallel price




                                20
                                2

       We finally reach Valspar’s evidence under our third
plus factor: traditional conspiracy evidence, where we look for
“proof that the defendants got together and exchanged
assurances of common action or otherwise adopted a common
plan even though no meetings, conversations, or exchanged
documents are shown.”10 Flat 

(citation
omitted). We approach the third plus factor as this Court did in
Chocolate, first considering individual groups of evidence to
see whether any raise an inference of conspiracy, before
evaluating all of the proof in context. 

–12.
Here, we agree with the District Court that Valspar failed to
raise an inference of conspiracy. Each strand of evidence is
weaker than similar evidence in cases where this Court has


movement and evidence best considered under the first two
plus factors) and from there concluded that the suppliers had
illegally conspired. The District Court was correct to reject this
line of argument and note that the evidence from which the
expert based his conclusions is “not necessarily . . . evidence
of an agreement” under our oligopoly caselaw. Valspar, 152 F.
Supp. 3d at 243.
       10
          The dissent claims that we ignore this precedent and
“required[] Valspar to present evidence of direct meetings and
conversations.” Dissent at 20. Not so. There is no doubt that a
plaintiff can satisfy this plus factor with circumstantial
evidence, but that circumstantial evidence must indicate the
existence of an “actual, manifest agreement not to compete.”
Flat 

(citation omitted). While Valspar
marshals circumstantial evidence of anticompetitive behavior,
the record does not show the existence of an actual agreement.




                               21
affirmed summary judgment in favor of companies that operate
in an oligopolistic market.

       First, Valspar shows that DuPont and the other
competitors took part in a data sharing program offered by the
Titanium Dioxide Manufacturers Association. As part of this
program (the Global Statistics Program, or GSP) the
competitors provided production, inventory, and sales-volume
data (but never price data) to the TDMA, which then
aggregated, anonymized, and redistributed the data.

       Without citing any precedent to show why this type of
information sharing was illegal, Valspar argues that the GSP
allowed each conspirator to calculate its own market share and
thus deduce whether it was getting its fair share of the
conspiracy’s profits. This argument suffers from the loaded
question fallacy. Instead of setting out to prove: “Does the GSP
show that a conspiracy existed?,” Valspar attempts to answer:
“How did the GSP further the conspiracy?” This approach
cannot satisfy Valspar’s burden. “[A] litigant may not proceed
by first assuming a conspiracy and then explaining the
evidence accordingly.” Blomkest Fertilizer, Inc. v. Potash
Corp. of Saskatchewan, 

, 1033 (8th Cir. 2000).

       Moreover, our prior decisions undermine Valspar’s
argument that the GSP supports an inference of conspiracy For
example, in Baby Food, we affirmed summary judgment
despite the fact that the alleged conspirators’ sales
representatives had “exchang[ed] pricing information,”
explaining that there was no evidence these exchanges had any
effect over the companies’ final pricing decisions, 

, and observing, in any event, that “[t]he exchange of price
data . . . can in certain circumstances increase economic
efficiency and render markets more, rather than less,




                              22
competitive.” 

(quoting United States v. U.S. Gypsum
Co., 

, 443 n.16 (1978)). And in Flat Glass, the
alleged conspirators each provided price data to a business that
would use those inputs to set recommended prices for the

. The alleged conspirators knew how
the recommended prices were calculated, so “were able to
calculate backwards” and determine the price inputs used. 

We explained that although this would rightfully “raise
suspicion,” the “publication of pricing information can have a
pro-competitive effect” and, with little other evidence
supporting the inference of a conspiracy, affirmed summary
judgment on that claim. 

exchanged as part of the GSP looks innocuous
when compared to the information in Baby Food and Flat
Glass. The GSP aggregated and blinded “members’ monthly
sales, production, and inventory data worldwide,” but never
collected price information. Valspar Br. 47. Valspar argues that
“the co-conspirators partially disaggregated the data to track
individual firms.” Valspar Br. 48. But as the District Court
noted, “the evidence provided by Valspar does not support this
conclusion” and Valspar’s own expert conceded that the GSP
merely allowed each firm to calculate its own market share.

–46.11

       11
           Additionally, the GSP most resembled a data
collection program blessed by the Ninth Circuit in In re Citric
Acid Litigation, where a centralized trade association
“collected figures on production and sales from each of its
members, audited this information on an annual basis, and
produced statistics aggregated by country on citric acid
production and sales.” 

, 1098 (9th Cir. 1999).
That court called the program “wholly legal” and explained




                              23
        Relatedly, Valspar claims that the alleged conspirators
“used the TDMA meetings to communicate their pricing plans,
coordinate price increases, and confirm that each competitor
would follow the leader on price increases.” Valspar Br. 50.
Valspar’s argument essentially begins and ends with
opportunity: the TDMA meetings brought the competitors
together, so one should assume that they used the meetings to
conspire. But as the District Court noted, “[t]here is no
evidence that there was any discussion of prices during these
meetings and certainly no evidence of an agreement.” 

. Consequently, Valspar’s argument falls
short under our precedents. 

(“[E]vidence . . . that the executives from the [alleged
conspirators] were in the same place at the same time . . . is
insufficient to support a reasonable inference of concerted
activity.”); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del.
Co., 

, 1235 (3d Cir. 1993) (“Proof of opportunity
to conspire, without more, will not sustain an inference that a
conspiracy has taken place.” (citation omitted)).

       Next, Valspar suggests that the competitors used
industry consultants as conduits to funnel information. For
example, Valspar points to an e-mail from a Kronos employee
to a consultant noting that the employee had heard rumors of
an impending Huntsman price increase, but thought it
“sound[ed] weird” and wanted to know if the consultant could
“confirm anything from [his] lofty position.” Valspar Br. 20.



that it was “uncontested that these activities served the
legitimate purpose of informing members of [market]
conditions.” 

sort of inquiry to a consultant is not probative of
conspiracy. We have explained that “it makes common sense
to obtain as much information as possible of the pricing
policies and marketing strategies of one’s competitors.” Baby

. In fact, this type of inquiry undermines
the existence of a conspiracy because conspirators would have
no need to ask consultants about the specifics of their own
conspiracy. See Mayor & City Council of Balt., Md. v.
Citigroup, Inc., 

, 139 (2d Cir. 2013) (attempts to
confirm future pricing plans of competitors “tend to suggest
the absence of [competitor] communications” because if
competitors were communicating directly they “would not
have had to rely on third parties to confirm [each other’s]
strateg[ies]”).

        Valspar also emphasizes a selection of internal e-mails
sent by the various competitors. For example, a DuPont e-mail
advocated for a price modification “[o]nly if you are not
undercutting a Kronos price increase!” Valspar Br. 9. A
Millennium e-mail said: “We should have this extra [market]
share—customers have been and want to buy this from us.
Competitors will let us have this.” 

And a Cristal e-mail
stated that “all major global players have been very disciplined
with pricing implementation up to this point.” 

       These e-mails are helpful to Valspar, but only
superficially. They may raise some suspicion insofar as they
indicate that something anticompetitive is afoot. But as we
have explained, oligopolistic conscious parallelism is by
nature anticompetitive and also legal. See 

. Essentially, these e-mails show that the competitors
were aware of the phenomenon of conscious parallelism and
implemented pricing strategies in response to it. It makes sense
that each firm would implement such strategies, since




                               25
conscious parallelism allows firms in an oligopoly to “in effect
share monopoly power” and maintain “prices at a profit-
maximizing, supracompetitive level.” Brooke 

. To forbid firms in an oligopoly from considering
conscious parallelism in its internal pricing decisions would be
to require a firm to do the impossible: “set its prices without
regard to the likely reactions of its competitors.” Clamp-All

(Breyer, J.).

       This logic explains away most of Valspar’s concerns.
For example, DuPont would not want to undercut a Kronos
price increase, because doing so would result in Kronos
lowering its price and a concomitant decrease in profits for
everyone. See Flat 

. Moreover, these
same e-mails show that the competitors engaged in
independent and contemporaneous internal deliberations. For
example, a DuPont employee wrote: “From a testing
perspective, it may be valuable to make the October
announcement. If our competitors do follow, it sends a clear
message to us that they are receiving/understanding our price
increase messages . . . If they don’t, we would also learn how
well we’ve trained them.” Valspar Br. 17 (emphases added).12


       12
          Although Valspar and the dissent contend that the
competitors implemented their conspiracy through public
announcements of their price increases, these e-mails reflect
that, even if such “signalling” occurred, it was not in
furtherance of any prior agreement. Had the competitors
“got[ten] together and exchanged assurances of common
action or otherwise adopted a common plan,” Flat 

, there would have been no need for DuPont to
resort to public announcements to “test” whether its
competitors were “receiving/understanding [its] price increase




                              26
And a Kronos employee wrote that it “hope[d] that Du[P]ont
is smart enough not to undo what we have all done in the TiO2
market by keeping some sort of discipline.” 

(first
alteration in original) (emphasis added). We have explained
that documents showing this type of internal deliberation may
negate an inference of conspiracy. Baby 

(rejecting plaintiff’s interpretation of a set of documents
because “[c]ontemporaneous documents also show that [an
alleged conspirator] made independent pricing decisions.”);
Text 

(noting that nothing in the
allegedly collusive e-mails “suggests that [the defendants]
believed there was a conspiracy among the carriers”). 13



messages.” See Williamson Oil Co. v. Philip Morris USA, 

, 1310 (11th Cir. 2003) (refusing to infer a
conspiracy from signalling among oligopolists absent evidence
that it was in furtherance of an agreement); Blomkest Fertilizer,
Inc. v. Potash Corp. of Saskatchewan, 

, 1037
(8th Cir. 2000) (same).
       13
          The dissent reads these e-mails differently, arguing
that they show the competitors (1) often “would not undercut
one another’s prices [(2)] and that they were involved in an
organization (i.e., cartel) controlling prices.” Dissent at 11
(emphasis added) (citation omitted). We agree with the first
proposition, but that is a natural consequence of oligopolistic
interdependence. See Flat 

. As for the
second proposition, we do not see enough evidence in the
record to support it. While the internal e-mails indicate that the
suppliers knew their pricing decisions may be consciously
parallel and that their collective interests would at times be
aligned, the e-mails do not evidence an explicit agreement to




                               27
        Finally, Valspar highlights a handful of inter-competitor
sales at below market prices, arguing that those sales were used
to redistribute gains and losses to maintain the alleged
conspiracy. But looking to the specific facts present here, the
District Court found that the sales were “just as consistent with
non-collusive activity as with conspiracy.” Valspar, 152 F.
Supp. 3d at 244. First, Valspar’s expert conceded that the sales
were at such low volumes that they would not have resulted in
large shifts of market share, thus largely defeating Valspar’s
theory of profit redistribution. Second, Hurricane Katrina
knocked out one of DuPont’s titanium dioxide plants so it was
unable to meet all its internal demand for the product, requiring
DuPont to purchase it from other firms. Importantly, these
sales occurred at prices sometimes higher and sometimes lower
than the average prices for non-defendants. And third, a
number of these sales were made by DuPont to Kronos
pursuant to a cross-licensing agreement in order to avoid patent
litigation. After this licensing agreement ended, DuPont
successfully negotiated a price increase.

        Valspar does not seriously dispute these explanations,
but instead argues “[i]f one seller buys anything from another
at nonmarket prices, then a resource transfer is made for which
there is no reasonable, noncollusive explanation.” Reply Br. 21
(quoting Willam E. Kovacic et al., Plus Factors and
Agreement in Antitrust Law, 

. Rev. 393, 423
(2011)). Valspar offers no case support for this proposition, but
instead puts all its eggs in the basket of a single law review
article. See 

law review article: (a) spends only one


fix prices—and often show that such an agreement was
lacking.




                               28
paragraph on this theory; (b) cites no precedent or economic
studies to support it; (c) recognizes that patent licensing and
cross licensing can be legitimate; and (d) seems to limit its
analysis to “interfirm transfers of resources that are largely
void of productive unilateral motivations.” 

. In the face of DuPont’s reasonable explanations to the
contrary, we decline to give this isolated quotation the force of
law.

                               3

       Having considered each piece of evidence individually
and decided that none raises an inference of conspiracy, we
must now consider the evidence as a whole.14 See 

. To summarize, granting all legitimate
inferences to Valspar, it presented evidence of: parallel price
movement, internal e-mails showing an awareness of this
parallel price movement, competitor participation in a trade
association and statistics sharing program, inter-firm sales at

       14
         Our dissenting colleague claims that, in the foregoing
section, we went through “each individual piece of evidence
and disregard[ed] it if we could feasibly interpret it as
consistent with the absence of an agreement to raise prices.”
Dissent at 19 (citation omitted). That misunderstands our mode
of analysis. For the sake of coherence, we presented and
discussed each piece of evidence separately, and found that no
single piece on its own, made a conspiracy more likely than
not. (After all, if a single piece of evidence made conspiracy
more likely than not, Valspar would survive summary
judgment and our task would end.) We now consider the
evidence together to determine whether the entire body of
evidence—viewed in context—tips the scale in Valspar’s
favor.




                               29
below market prices, and use of industry consultants. In
assessing this evidence, we look to this Court’s three cases
examining alleged oligopolistic conspiracies at summary
judgment: Chocolate and Baby Food, where summary
judgment was granted, and Flat Glass, where summary
judgment was partially denied.

       First, Valspar did not offer any single form of evidence
that would have gotten it close to showing that a conspiracy is
more likely than not. Valspar emphasizes the pattern of parallel
price announcements, but for the reasons explained, we don’t
find them particularly persuasive. 

Section IV-A-1,
2. By comparison, in Chocolate and Baby Food, where
summary judgment was granted in favor of the alleged
conspirators, the plaintiffs’ cases were supported with far
stronger lead evidence than present here. For example, the
Chocolate plaintiffs established that the very same defendants
had been part of a contemporaneous price-fixing conspiracy in
Canada—to which one of the defendants had already pleaded
guilty to the Canadian 

, 402. In
Baby Food, the defendants had advance knowledge of each
other’s planned price increases (or decisions not to raise prices)
on several 

–20. And this pales in
comparison to Flat Glass—our one case in which defendant’s
motion for summary judgment was denied—where one of the
defendant’s alleged co-conspirators confessed to “an agreed
upon, across the board price increase for the entire United
States” to the Department of Justice in an attempt to gain

(citation omitted).

       Just as Valspar’s lead evidence is weaker than that in
our relevant cases, so too is its supporting evidence. For
example, although Valspar alleges that the competitors may
have swapped certain price information through the TDMA or




                               30
consultants, there is no evidence that price information was
ever voluntarily exchanged, and the information that allegedly
was exchanged through these sources pales in comparison to
what was shared in cases where we affirmed summary
judgment to defendants. 

Section IV-B-2. Likewise,
the internal e-mails uncovered by Valspar look harmless next
to those in our caselaw. First, all of the e-mails uncovered by
Valspar were internal to each competitor, whereas in Baby
Food there was regular communication between 

–20. Moreover, there is nothing in the
competitors’ e-mails to indicate that their pricing behavior was
the result of an actual agreement (as opposed to conscious
parallelism), unlike in Baby 

(referring
to the competitors’ “truce”). And again, these e-mails do not
approach those from Flat Glass, where one conspirator wrote
that it was “monitoring the market to make sure that all stick to
the rules” and admitted that one of the conspirators “assured
me that they were fully supportive of the price increase

–67 (citations omitted).

      In sum, after reviewing the record as a whole, we
conclude that the District Court did not err when it held that
Valspar’s evidence did not meet our standard to survive
summary judgment.

                               C

       One final point deserves mention. Valspar makes much
of the District of Maryland litigation where summary judgment
was denied on a materially similar record. It argues that
“principles of comity and the doctrine of stare decisis should
have given the Delaware court greater pause before reaching a
decision in conflict with the Maryland Action.” Valspar Br. 61.




                               31
        Valspar’s argument has an obvious flaw: the District of
Maryland sits within the United States Court of Appeals for the
Fourth Circuit. See 28 U.S.C. § 41. Thus, the Maryland District
Court had no obligation to consider Third Circuit precedent,
but the District Court in this case was bound by it. This resulted
in the Maryland court applying a standard quite different from
the one we have developed and that the District Court applied.
Compare 

(“A plaintiff relying
on ambiguous evidence alone cannot raise a reasonable
inference of conspiracy sufficient to survive summary
judgment.” (quoting 

–97)), with
Titanium 

(“[W]here ‘a plaintiff
relies on ambiguous evidence to prove its claim, the existence
of a conspiracy must be a reasonable inference that the jury
could draw from that evidence.’” (citing In re Publ’n Paper
Antitrust Litig., 

, 63 (2d Cir. 2012)). In light of
Third Circuit precedent applying § 1 of the Sherman Act to
oligopolies, the District Court did not err.15




       15
          Contrary to Valspar’s contention, our caselaw does
not foreclose the possibility that a plaintiff can defeat summary
judgment with only circumstantial evidence in the Section 1
oligopoly context. That circumstantial evidence, however,
must be non-economic evidence of an actual agreement
between the conspirators, and not just a restatement of the
interdependent economic conduct that we must accept in an
oligopolistic marketplace. See 

(“mere consciously parallel behavior alone is insufficient to
prove a conspiracy, [but] it is circumstantial evidence from
which, when supplemented by additional evidence, an illegal
agreement can be inferred.” (emphasis added)). As explained




                               32
                       *      *     *

       For the reasons stated, we will affirm the judgment of
the District Court.




above, Valspar has not provided circumstantial non-economic
evidence sufficient to support the inference of a conspiracy.




                             33
STENGEL, Chief District Judge, dissenting.

       I respectfully dissent.

       The essential question here is whether thirty-one (31)
parallel price increase announcements by a small group of
suppliers over a ten (10) year period were mere coincidence
(lawful and, in fact, expected in the world of oligopolies) or
evidence of an agreement to fix prices (unlawful even among
oligopolists). I think there are enough factual issues in this case
that the question whether it was a lawful coincidence or an
unlawful agreement should be decided by a jury.

       The majority’s ruling creates an unworkable burden, not
supported by our precedent, for plaintiffs seeking to prove a
Sherman Act price-fixing case with circumstantial evidence.
Second, it affirms a decision where a district judge weighed
and compartmentalized evidence, a task better suited for
juries—not judges.

       An antitrust plaintiff may avoid summary judgment
based upon circumstantial evidence alone. That concept is
almost a legal axiom, yet it finds no home in the majority
opinion. We have long held that a “plaintiff in a section 1 case
does not have to submit direct evidence, i.e., the so-called
smoking gun, but can rely solely on circumstantial evidence
and the reasonable inferences drawn from such evidence.”
Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co.,

, 1230 (3d Cir. 1993); see, e.g., In re Baby Food
Antitrust Litig., 

, 124 (3d Cir. 1999) (“A plaintiff
in a Section 1 conspiracy can establish a case solely on
circumstantial evidence and the reasonable inferences to be
drawn therefrom”). In other words, an antitrust plaintiff’s




                                 1
burden at summary judgment “is no different than in any other
case.” 

Apple BMW, Inc. v. BMW of N. Am.,
Inc., 

, 1363 (3d Cir. 1992)); In re Chocolate
Confectionary Antitrust Litig., 

, 396 (3d Cir.
2015). Today’s opinion all but explicitly states that, now, “the
so-called smoking gun,” 

, is
required.

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

, 588 (1986), and conduct that is “as consistent with
permissible competition as with illegal conspiracy” cannot, on
its own, support an inference of an antitrust conspiracy, 

Co. v. Spray-Rite Serv. Corp., 

(1984)).

        This Court favors a sliding scale approach to determine
the types of inferences allowed to be drawn from
circumstantial evidence in antitrust cases. According to our
Circuit’s precedent, and that of the Supreme Court’s, the range
of inferences that may be drawn from circumstantial evidence
depends upon “the plausibility of the plaintiffs’ theory and the
dangers associated with such inferences.” 

(quoting In re Flat Glass Antitrust Litig., 

,
357 (3d Cir. 2004)). In cases where an antitrust plaintiff’s
economic theory of liability “makes no economic sense,” and
drawing inferences in the plaintiff’s favor would deter healthy
competition, the plaintiff must produce “more persuasive
evidence” to bolster its claim. 

other hand, when a
plaintiff’s theory makes economic sense, courts draw more




                                2
liberal inferences in favor of the plaintiff. 

presented an economic theory that makes perfect economic
sense, yet the District Court and majority did not draw any
inferences in Valspar’s favor.

        The majority performs a thorough analysis of the
evidence of parallel conduct and the “plus factors.” Viewing
all this evidence as a whole, I believe it clear that summary
judgment was not proper in this case.

       A. Parallel Conduct

       It is true that conscious parallelism alone cannot create
an inference of conspiracy. The majority has taken this to mean
that any evidence of conscious parallelism is therefore
incapable of raising an inference of conspiracy. This is
incorrect. Parallel pricing is a necessary requirement of any §
1 price-fixing claim, and simply because parallel pricing alone

       1
         Based on this sliding scale approach—first articulated
in Matsushita—courts have taken varying approaches to cases
depending on the strength of the plaintiff’s theory. Compare

–91 (refusing to draw liberal
inferences from plaintiffs’ “predatory pricing” theory, which
posited that multiple companies conspired to lower prices,
because a conspiracy to lower prices makes no economic
sense), with 

(drawing liberal
inferences and reversing summary judgment because the
plaintiff’s theory, that companies conspired not to compete
with each other, made “perfect economic sense”), and Flat

(drawing liberal inferences in reversing
summary judgment given that “an agreement among
oligopolists to fix prices . . . makes perfect economic sense”).




                               3
cannot preclude summary judgment does not mean that courts
ignore evidence of it. Indeed, our precedent has repeatedly
warned against overlooking this important factor in these types
of cases, especially where the plaintiff’s economic theory—as
it does here—makes perfect economic sense.2

        The sheer number of parallel price increase
announcements in this case—31 to be exact—is
unprecedented. Cf. Flat 

(reversing
summary judgment in case involving 7 parallel price increases
in 5 years); 

(3 parallel price
increase announcements insufficient to withstand summary
judgment, in part, because there was no “abrupt” or “radical”
shift in pre-conspiracy conduct). While this sheer number, in
itself, cannot carry the day for Valspar, the other evidence
viewed in conjunction with these parallel price increase
announcements can.

        This amount of parallel price increase announcements,
in a relatively short time period, commands attention. In Flat
Glass, we considered the temporal proximity between the
companies’ respective price increase announcements as
evidence of an agreement to 

–67.
Here, there is evidence that many of the manufacturers’ price
increase announcements were made within hours, days, or

      2
          We discuss the plausibility of Valspar’s economic
theory in greater detail infra. For now, it is enough to say we
have previously held that Valspar’s exact economic theory
(parallel price fixing among oligopolists) makes perfect
economic sense: “an agreement among oligopolists to fix
prices at a supracompetitive level . . . makes perfect economic
sense.” Flat 

.




                              4
weeks of each other. For example, in one instance, DuPont
announced a price increase at 11:00 a.m., Tronox matched it
seven hours later, and Kronos matched it eight hours later. The
next day, Millennium and Huntsman announced identical price
increases. In another instance, all five TiO2 manufacturers
made the same price increase announcement within a four-day
period. This close timing creates a strong inference of
conspiracy.

        The unprecedented amount of parallel price increase
announcements, while not dispositive, would undoubtedly
raise red flags to any reasonable fact finder. Valspar’s theory
of liability makes “perfect economic sense.” 

. Accordingly, “more liberal inferences from the
evidence,” which necessarily includes the 31 parallel price
increase announcements, should be drawn. 

unwillingness to allow more liberal inferences in the plaintiff’s
favor seems to me to be a mistake. Instead, the majority gave
little weight to the amount of parallel price increase
announcements simply because parallel conduct itself is
insufficient to create an inference of conspiracy. This approach
sees the trees, not the forest. See Flat 

(mandating courts analyze the evidence “as a whole” to
determine whether “it supports an inference of concerted
action”).

       Of course, “[f]or parallel pricing to go beyond mere
interdependence, it must be so unusual that in the absence of
an advance agreement, no reasonable firm would have engaged
in it.” Baby 

. With that said, it is
undoubtedly a question of fact as to whether the parallel
pricing in this case was sufficiently “unusual.” 

to
ever reach us has contained even half the amount of parallel
price increase announcements present here—not to mention




                               5
that many of them here were separated by mere days or hours.
This raises an obvious and serious question after today’s
decision: What will it now take for a plaintiff relying on
circumstantial evidence to move the ball across the goal line?

        The sheer amount of parallel conduct in this case,
coupled with the plausibility of Valspar’s economic theory,
should inform our analysis of the plus factors. Flat 

(“[A]n agreement among oligopolists to fix prices
at a supracompetitive level . . . makes perfect economic sense”
and therefore “more liberal inferences from the evidence
should be permitted than in Matsushita because the attendant
dangers from drawing inferences recognized in Matsushita are
not present”); 

(“Matsushita itself said little about
proof requirements in a case where underlying structural
evidence indicates that the offense is quite plausible” (quoting
Herbert Hovenkamp, The Rationalization of Antitrust, 116
HARV. L. REV. 917, 925–26 (2003))).3 It did not. The majority
paid very little mind to these distinctions—especially the
plausibility of Valspar’s economic theory.

       The majority’s formulation of the summary judgment

       3
         I share the concern of the amicus—namely, that it
would be an absurd result if, “in situations ‘in which the danger
of [parallel pricing] is most serious,” liability would actually
be “less likely.” Amicus Br. at 15 (quoting Louis Kaplow,
Competition Policy & Price Fixing 126 (2015)). A plain
reading of our case law reveals this Court never intended to
ramp up a price-fixing plaintiff’s burden of proof, especially
when the plaintiff’s economic theory makes perfect economic
sense. 

–97; Flat 

. In fact, courts must do the opposite in such a scenario by
drawing liberal inferences in favor of the plaintiff. 

in this case, coupled with its dismissive treatment of
unprecedented parallel-conduct evidence, creates too high a
hurdle for plaintiffs attempting to prove a price-fixing
conspiracy using circumstantial evidence. The limitations in
antitrust cases announced in Matsushita, and that we followed
in Chocolate, were never meant to require something more
than circumstantial evidence of an agreement to preclude
summary judgment. Nor did they impose some “special”
burden. Eastman Kodak Co. v. Image Tech. Servs., Inc., 

, 467 (1992); see Flat 

n.9
(“[U]nfortunately, many courts have read Matsushita as
requiring a certain quantum evidence of verbal agreement
before summary judgment can be avoided.” (quoting Herbert
Hovenkamp, The Rationalization of Antitrust, 116 HARV. L.
REV. 917, 925 (2003))); see also 

(to create a genuine issue of material fact, the plaintiff “need
not match, item for item, each piece of evidence proffered by
the movant, but simply must exceed the ‘scintilla’ standard.”).

       The U.S. Supreme Court has gone so far as to caution
against this kind of misapplication of Matsushita. In Eastman
Kodak Co. v. Image Technical Services, Inc., it emphasized:

       The Court’s requirement in Matsushita that the
       plaintiffs’ claims make economic sense did not
       introduce a special burden on plaintiffs facing
       summary judgment in antitrust cases. The Court
       did not hold that if the moving party enunciates
       any economic theory supporting its behavior,
       regardless of its accuracy in reflecting the actual
       market, it is entitled to summary judgment.
       Matsushita demands only that the nonmoving
       party’s inferences be reasonable in order to reach
       the jury, a requirement that was not invented, but




                               7
       merely articulated, in that decision. If the
       plaintiff’s theory is economically senseless, no
       reasonable jury could find in its favor, and
       summary judgment should be 

–69 (footnote omitted). The Court in Eastman
Kodak also expressed a preference to “resolve antitrust claims
on a case-by-case basis, focusing on the particular facts
disclosed by the record.” 

This principle is
particularly poignant here, where the “facts disclosed by the
record” (i.e., 31 parallel price increase announcements) are
strongly suggestive of an agreement to fix prices.

       B. The Plus Factors

        Although the majority recognizes there is no exhaustive
list of plus factors, Flat 

, it considers
only a few select plus factors and fails to consider others. There
is no one plus factor that is “strictly necessary.” 

n.12
(quoting In re High Fructose Corn Syrup Antitrust Litig., 

, 655 (7th Cir. 2002) (Posner, J.)). The presence of
certain plus factors does not automatically preclude summary
judgment. Id.; see 

(recognizing
that a “wide range of circumstantial evidence can be used to
establish needed plus factor”).

       While we often rely on the “big 3” plus factors (motive,
actions contrary to interest, and traditional conspiracy), the
plus-factor inquiry is not intended to be rigid or formulaic. Flat

n.12; 

.
There is a slew of other viable plus factors, including, among
others: (i) fixed relative market shares; (ii) exchanges of price
information; and (iii) price, output, and capacity changes at the
formation of the cartel. See William E. Kovacic et al., Plus




                                8
Factors and Agreement In Antitrust Law, 110 MICH. L. REV.
393, 415 (2011) (listing Posner’s “fourteen plus factors”); see
also 

(recognizing that a company’s redistributions of
gains and losses—or “true-ups”—are circumstantial evidence
of a conspiracy); Richard A. Posner, Antitrust Law 87 (2d ed.
2001) (recognizing “signaling” as a plus factor, especially
when the announcement occurs before the actual
implementation of the price increase).

        The majority is correct that evidence of the first two plus
factors may not always nudge the ball over the goal line for a
plaintiff at summary judgment because they “often restate
interdependence.” Flat 

. But this is not
always the case. Because our approach to these cases is fluid,
and we must not compartmentalize evidence, there are some
cases where these two factors may not simply restate
interdependence. 

instance, certain acts against
self-interest (e.g., non-price acts against self-interest) “cannot
simply be explained as a result of oligopolistic
interdependence.” 

to Enter Into a Conspiracy

       Motive is “important to a court’s analysis, because [its]
existence tends to eliminate the possibility of mistaking the
workings of a competitive market . . . with interdependent,
supracompetitive pricing.” Flat 

.

       The majority mentioned only that evidence of motive
often restates interdependence and thus does not create an
inference of concerted action. However, in Chocolate, cited
often by the majority, we simply recognized that “evidence of
motive without more does not create a reasonable inference of
concerted 

(emphasis added). Here,




                                9
there is much “more.”

              2. Actions Against Self-Interest

       In the District Court, Valspar pointed to substantial
evidence that DuPont and the other manufacturers acted
contrary to their self-interest. First, Valspar noted that TiO2
prices rose despite no change in the TiO2 market. Second,
Valspar argued that the market shares of the TiO2
manufacturers remained relatively stable from 2002 to 2013.
Third, Valspar relied on the fact that DuPont and the other
manufacturers made intercompany sales to each other at
below-market value.

       The District Court seemed not to heed Flat Glass’s
pronouncement that “certain types of ‘actions against self
interest’ may do more than restate economic 

n.12.4 The explicit examples cited in Flat Glass
were “unilateral exchanges of confidential price information.”

of confidential price information, like
other non-price actions against self-interest, “cannot simply be
explained as a result of oligopolistic interdependence.” 

a triable issue of fact on this point below.
There is evidence that the GSP allowed DuPont and the other
manufacturers to gain confidential information about each
other regarding supply, demand, inventory, and market share.

       In a 2002 email, Paul Bradley at Huntsman noted that it

       4
         The majority simply states, without consideration of
the actual evidence, that “Valspar has not shown” that the first
two plus factors “do more than restate the theory of
interdependence.” Majority at 20 n.9. The actual evidence,

and infra, shows otherwise.




                              10
would be possible to “derive” each individual manufacturer’s
production of TiO2 from the GSP data. Valspar also produced
evidence suggesting that the manufacturers collectively used
industry consultant Jim Fisher as a conduit to share
confidential information. Fisher attended an industry
conference which the manufacturers—including DuPont—
attended. According to Fisher, at this conference the TiO2
manufacturers “discussed the need to take advantage of tight
market conditions to improve pricing.”5

        The same actions contrary to self-interest that led the
Seventh Circuit to reverse summary judgment in High
Fructose are also present here. Areeda’s treatise recognizes
this in identifying the type of oligopoly that may nonetheless
be collusive: “there were numerous oral and some written
statements by employees of the defendant to the effect that they
had an understanding that they would not undercut one
another’s prices and that they were involved in an organization
(i.e. cartel) controlling prices.” Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 1431b, at 232 (3d ed. 2010)
(citing High 

). As in High Fructose,
here there are numerous statements from the manufacturers’
employees (including DuPont) expressing an understanding
that they “would not undercut one another’s prices” and that
they were involved in an organization to control prices. 

email, ironically, the DuPont author parrots Areeda’s
above “undercut[ting]” language verbatim in advising others to
modify pricing “[o]nly if you are not undercutting a Kronos
price increase!!!!!” Cf. High 

(statement from defendant that “[w]e have an understanding


       5
        In re Titanium Dioxide Antitrust Litig., 

799, 812–13 (D. Md. 2013).




                              11
within the industry not to undercut each other’s prices” served
as evidence of “an explicit agreement to fix prices” (Posner,
J.)). Another email from a different competitor recognized that
“all are still acting in a disciplined manner, respecting each
other’s market positions and share and holding price.”

        There is no shortage of these emails, all of which
support an inference that the TiO2 manufacturers were
working together pursuant to an agreement to maintain price.
There are further emails indicating that all the TiO2 suppliers
were “on the bus,” that DuPont was “training” others on price,
and that some of the suppliers were planning price increase
announcements in order to allow other suppliers to “get on
their horses.” In 2006, a DuPont executive went so far as to
comment about another’s price increase: “the timing may be
no coincidence – their reading of the CEFIC info like ours
should give them confidence that NA [North American] price
increases can be prosecuted despite the flat market.” This email
is particularly probative of an agreement, given the DuPont
executive’s recognition that they could continue to hike up
prices even though demand was decreasing. See Flat 

(finding oligopolists “raising prices” indicative
of a conspiracy when the price increases were made “absent
increases in marginal cost or demand”).

       The repetitive pattern of public price increase
announcements is also a garden variety example of action
against self-interest. When there is evidence that “the
publication of wholesale price increases was intended to make,
and has the effect of . . . ensuring competitors could quickly
learn of, and respond to” these price increases, an inference of
an agreement to fix prices arises. See Petroleum Prods.
Antitrust Litig., 

, 446–47 (9th Cir. 1990). A “price
announcement given in the hope that rivals will follow”




                               12
evinces an agreement if “repetition creates an expectation of
such behavior.” Areeda & Hovenkamp, Antitrust Law ¶ 1422b,
at 171 (3d ed. 2010); see 

. . mere proof of
interdependent pricing, standing alone, may not serve as proof
of an antitrust violation, we believe that the evidence
concerning the purpose and effect of price announcements,
when considered together with the evidence concerning the
parallel pattern of price restorations, is sufficient to support a
reasonable and permissible inference of an agreement, whether
express or tacit, to raise or stabilize prices.” (quoting
Petroleum 

–47)).6

       The majority relies heavily on the fact that not all of the
co-conspirators’ parallel price increase announcements
resulted in a sale at the actual announced price. Drawing a
distinction between price increase announcements and actual


       6
         Citing to one single DuPont email, the majority
reasons that “[h]ad the competitors got[ten] together and
exchanged assurances of common action or otherwise adopted
a common plan, . . . there would have been no need for DuPont
to resort to public announcements to ‘test’ whether its
competitors were ‘receiving/understanding [its] price increase
messages.” Majority at 29 n.14. While it may be possible to
reach this conclusion by reading one email in isolation, the
evidence as a whole creates a reasonable inference that there
was more likely than not an agreement to fix prices. For
example, evidence of the meetings between Fisher and all the
alleged conspirators, as well as the actual meetings of top
executives from Kronos and Huntsman (followed almost
immediately by a parallel price increase announcement), as
well as the conspirators all discussing “improving pricing”
does create an inference of “a common plan.”




                               13
increases has been criticized by judges and scholars alike.
Judge Posner has emphasized that “[i]n deciding whether there
is enough evidence of price fixing to create a jury issue, a court
asked to dismiss a price-fixing suit on summary judgment must
be careful to avoid three traps.” High 

.

        One of Judge Posner’s traps is “to distinguish between
the existence of a conspiracy and its efficacy.” 

In
other words, arguing that although there was an agreement to
fix prices, the goods were not actually sold at that price. 

does just that by relying on the fact that, often times,
DuPont and the manufacturers sold TiO2 at a lower price than
reflected in their initial parallel price increase announcements.
As explained by Areeda (who the majority cites frequently and
whose opinions permeate Third Circuit antitrust
jurisprudence), a “price announcement given in the hope that
rivals will follow” evinces an agreement if “repetition creates
an expectation of such behavior.” Areeda & Hovenkamp,
Antitrust Law ¶ 1422b, at 171 (3d ed. 2010) (emphasis added).

       Our own precedent is at odds with such an analysis. See
Flat 

(rejecting the argument that
“regardless of the . . . list prices, . . . the prices at which flat
glass producers actually sold their product to customers []
declined during the period of the alleged conspiracy” because
“[a]n agreement to fix prices is . . . a per se violation of the
Sherman Act even if most or for that matter all transactions
occurred at lower prices” (citing High 

) (emphasis added)).

      The majority fell into this trap. There is plenty of
evidence, in the form of emails, that DuPont and the other TiO2
manufacturers made price increase announcements “in the




                                14
hope that rivals will follow.” Areeda & Hovenkamp, Antitrust
Law ¶ 1422b, at 171. While this is not conclusive evidence of
an agreement, the scale tips in favor of finding an agreement
when there is “repetition” of such price increase
announcements. 

else, this case involves repetitive
price announcements. This repetition clearly gave the suppliers
“an expectation,” 

further illuminated by the
drastic increase in parallel price increase announcements from
2002 to 2013. These emails, in conjunction with the pattern,
frequency, and effect of the price announcements, tend to
exclude the possibility that the TiO2 manufacturers were
acting independently.

       Valspar also presented evidence that DuPont and the
other suppliers consciously maintained static market shares.
Market share stability is a well-recognized symptom of
collusive and concerted action in antitrust cases. See William
E. Kovacic et al., Plus Factors and Agreement in Antitrust
Law, 110 MICH. L. REV. 393, 415, 422 (2011).7 The logic is not
difficult to understand: a company acting in a healthy,
competitive, and self-interested manner would seek to
expand—not maintain or decrease—its own market share.8


       7
           The majority criticizes Valspar’s reliance on legal
scholarship as opposed to case law. This is interesting given
that (1) this Court has long turned to legal scholarship to inform
their decisions in antitrust cases involving oligopolists, and (2)
the majority itself cites to legal scholarship—including
multiple law review articles—seven times.
       8
         For example, say Company A has a 30% market share
in a particular industry and Company B has a 40% market share
in that industry. Obviously, Company A and B, assuming they




                               15
The District Court acknowledged this evidence. Instead of
submitting it to the jury as a disputed question of fact, however,
the District Court summarily concluded that this evidence did
not show collusion because the TiO2 market is an oligopoly.
Valspar Corp. v. E.I. Du Pont De Nemours, 

, 242–43 (D. Del. 2016). The majority took the same
approach. Just like the District Court, the majority weighed the
expert evidence on this issue and made a finding: that the
evidence of (likely unilateral) market share stability was
insufficient in this case to show concerted action or agreement.
It seems to me that if the court is “weighing evidence” or
“making findings” it should be at trial, on a full record and
done by a fact finder, i.e., a jury or judge sitting without a jury.

       Dovetailing with this evidence of static market shares is
evidence that the TiO2 manufacturers made intercompany
sales of TiO2, meaning they sold TiO2 to one another. This
evidence might indicate pure competition but for the fact that
the manufacturers frequently sold the TiO2 to their
competitors, at below-market prices. For example, when
DuPont would sell Kronos TiO2, Kronos paid an average of
16% less for the TiO2 than DuPont’s own customers did.
DuPont also sold TiO2 to Millennium at below-market prices.9
One of Valspar’s experts, Dr. Williams, was able to identify


are competitive, would want to acquire as much market share
for themselves as possible. Therefore, it would defy all logic
and notions of procompetitive behavior for Company A (who
has a lower market share) to take affirmative actions to stay at
30% rather than grow beyond a 30% market share.
       9
           Titanium Dioxide, 

at 814.




                                16
years of below-market sales between the TiO2 manufacturers.

       The majority downplays this evidence of below-market
intercompany sales. It apparently considered these sales just as
consistent with non-collusive activity as with conspiracy
because: (1) DuPont used some TiO2 in its own production in
2005 and 2006; (2) a DuPont plant in Mississippi shut down
for five months; and (3) DuPont’s sales to Kronos were
governed by a patent settlement agreement from 2006 to 2008.
The District Court, and the majority, found the volume of
intercompany sales insufficient to constitute a “true-up.”10

        The majority notes that the intercompany sales were
low in number and unlikely to show an agreement. According
to this logic, there is no evidence of a “true-up” because the
intercompany sales were fairly low in quantity. Yet the very
purpose of a “true-up” is for the companies within a cartel to
maintain their market share. Therefore, it might not necessarily
make sense for a company to make a large cross-sale, or a large
number of cross-sales, in order to maintain its relative market
share.11


       10
          A “true-up” occurs when companies in a conspiracy
redistribute their individual gains and losses in order to comply
with their conspiratorial agreement. Kovacic et al., Plus
Factors, at 423. Such a transaction “leads to a strong inference
of collusion” since there is “no reasonable noncollusive
explanation” for intercompany sales at “nonmarket prices”
between companies that are supposed to be competing with one
another. 

use another example, say Company A enjoys 35%
of the market share, while Company B has 50% of the market




                               17
        Obviously,     intercompany      sales   “could”     be
redistributions of gains or losses, 

, and “might” be explained by the closed DuPont plant, 

“coulds” and “mights” cast doubt on—not
support—DuPont’s argument for summary judgment. Where
there are reasonable inferences that there was more likely than
not a conspiracy to fix prices, summary judgment is not
proper.12 The majority, like the District Court, accepted each


share. Assume A and B are colluding and, thus, they want to
raise prices and maintain market shares per their agreement.
Then assume that Company A’s share drops to 33%. Company
B may sell a very small amount of product to Company A
simply to allow Company A to maintain its market share.
Mistaking this as an insignificant sale, merely because of its
size or lack of frequency, would be an oversight.
       12
           Federal Rule of Civil Procedure 56 states: “The court
shall grant summary judgment if the movant 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).
Simply because courts must exercise caution in these types of
cases does not do away with Rule 56’s proposition that genuine
disputes of material fact preclude summary judgment:
“Generally, the movant’s burden on a summary judgment
motion             in         an           antitrust         case
‘is no different than in any other case.’” 

. In these cases, courts still must deny summary judgment
if there is a genuine dispute of material fact and “view the facts
and any reasonable inferences drawn therefrom in the light
most favorable to the party opposing summary judgment.” 

(citing Eastman 

).
The majority did not do this. Also contrary to the majority’s




                               18
of DuPont’s explanations of possibly conspiratorial conduct
and adopted each without much explanation. This approach
should be unacceptable at the summary judgment stage. See
Flat 

(explaining we should not
“consider each individual piece of evidence and disregard it if
we could feasibly interpret it as consistent with the absence of
an agreement to raise prices”); 

(to
create a genuine issue of material fact, the plaintiff “need not
match, item for item, each piece of evidence proffered by the
movant, but simply must exceed the ‘scintilla’ standard.”);
Areeda & Hovenkamp, Antitrust Law § 14.03b, at 14–25 (4th
ed. 2011) (plaintiffs need not “disprove all nonconspiratorial
explanations for the defendants’ conduct” to prevail at
summary judgment).

              3. Traditional Conspiracy Evidence

       Traditional conspiracy evidence is often the most
important “plus factor” in a case like this one. 

. Traditional conspiracy evidence is evidence that
“the defendants got together and exchanged assurances of
common action or otherwise adopted a common plan even
though no meetings, conversations, or exchanged documents
are shown.” E.g., 

Even though “no meetings,
conversations, or exchanged documents” are required as direct
evidence of a conspiracy, DuPont urged us to require, in
essence, exactly that.

        This Court has explicitly and repeatedly held that
“traditional conspiracy” evidence may exist “even though no

entire analysis, the “special consideration” and “caution” we
apply in these types of cases informs—not supplants—the
general guidelines found in Rule 56.




                              19
meetings, conversations, or exchanged documents are shown.”

(emphasis added); Superior
Offshore Internat’l, Inc. v. Bristow Grp., 490 F. App’x 492,
499 (3d Cir. 2012); Burtch v. Milberg Factors, Inc., 

, 227 (3d Cir. 2011); In re Ins. Brokerage Antitrust Litig.,

, 322 (3d Cir. 2010); Flat 

.
Yet the majority seems to require Valspar to present evidence
of direct meetings and conversations. The majority reasoned
that since “there is no evidence that there was any discussion
of prices during these meetings and certainly no evidence of an
agreement,” Valspar’s argument “falls short.” Maj. Op. at 21.

       In reality, Valspar presented various forms of traditional
conspiracy evidence. For example, Valspar presented a
Millennium email stating “we have competition on board for
the Oct 1 price increase announcement.”13 Having
“competition on board” for a price increase announcement
certainly conveys that the suppliers somehow got together and
exchanged assurances of “common action,” i.e., to announce
the same prices. 

goes for the suppliers’ emails
about the “collective needs” of the industry14 and getting
everyone “on the bus” or, put another way, “on their horses.”

      Today’s decision could easily be read to require direct
evidence of an agreement in an oligopoly/antitrust case despite

       13
            Titanium Dioxide, 

at 829.
       14
          The District Court read this to mean the “collective
needs” of Millennium alone. However, read in the context of
the entire email, a reasonable jury could certainly conclude the
opposite: that the author was referring to the collective needs
of the TiO2 industry members.




                                20
the fact that neither our prior jurisprudence (nor the Supreme
Court’s) has ever required such evidence. What’s more, it is
not even correct to state that no meetings or conversations
between competitors took place. In 2004, the CEO of
Millennium met with the President of Huntsman. The very next
day, an internal Millennium email stated that they had
“competition on board for the Oct 1 price increase
announcement.” A few years earlier in 2002, DuPont
announced a price increase a few days after Jim Fisher met
with Kronos and then with DuPont. And if that wasn’t enough,
according to Jim Fisher, the suppliers, at a meeting together,
“discussed the need to take advantage of tight market
conditions to improve pricing.”15

       I am not sure how this circumstantial evidence could be
stronger. It unequivocally shows that one alleged conspirator’s
(Millenium’s) CEO met with another alleged conspirator’s
(Huntsman’s) President days before a parallel price increase
announcement. This meeting occurred at the same time an
email was written stating that TiO2 “competition” was “on
board” with a particular price increase announcement. Even
more persuasive, there is evidence that all the TiO2 suppliers
discussed “improv[ing] pricing” at an industry conference in
2005 and that in 2002 DuPont and Kronos announced an
identical price increase just days after Jim Fisher met with
these two “competitors.”

       A jury should be allowed to determine whether Fisher’s
meetings with both Kronos and DuPont—days before a
parallel price increase announcement—were suspect. A jury

       15
         In re Titanium Dioxide, 

at 812–13
(quoting Fisher) (emphasis added).




                              21
should be allowed to determine whether an email that
“competition” is “on board” for a price increase announcement
was concerted action, particularly when this email was written
one day after Huntsman’s President personally met with
Millennium’s CEO. A jury should be been permitted to decide
whether a meeting with the TiO2 manufacturers, in which they
explicitly discussed “improv[ing] pricing,” supports an
inference of concerted action. This is the exact sort of powerful
evidentiary synergy the majority implies is absent from
Valspar’s case.16 This approach misses by a mile an essential
truth of actual courtroom litigation: that circumstantial
evidence is competent, valid, and vital evidence in almost
every conspiracy trial, civil or criminal. The courtroom
litigation process, though sometimes messy and unpredictable,
is the preferred method for the resolution of factual questions
under our Seventh Amendment. And, with all its quirks, the

       16
           The majority does not discuss this particularly
damning evidence, but states generally that “the record does
not show the existence of an actual agreement.” Majority at 23
n.11. Contrary to the majority’s insistence, an actual agreement
can be shown in the exact way that Valspar has set out to do so
in this case. See Areeda & Hovenkamp, Antitrust Law ¶ 1422b,
at 171 (3d ed. 2010) (“Although . . . mere proof of
interdependent pricing, standing alone, may not serve as proof
of an antitrust violation, we believe that the evidence
concerning the purpose and effect of price announcements,
when considered together with the evidence concerning the
parallel pattern of price restorations, is sufficient to support a
reasonable and permissible inference of an agreement,
whether express or tacit, to raise or stabilize prices.”)
(emphasis added).




                               22
civil trial is a far better method of evaluating evidence, direct
or circumstantial, than an academic parsing of a printed record
developed in discovery.

        The inculpatory flavor of these emails is enhanced by
the fact that the suppliers were all a part of the TDMA, which
gave them access to highly confidential information via the
GSP. The majority attempts to analogize the GSP to In re Citric
Acid Litigation, 

(9th Cir. 1990). In Citric Acid,
the U.S. Court of Appeals for the Ninth Circuit rejected a
theory that the alleged conspirators used their membership in a
trade association as a front for conducting conspiratorial

–98. It aptly pointed out that if
courts “allowed conspiracy to be inferred from such activities
alone, we would have to allow an inference of conspiracy
whenever a trade association took almost any action.” Citric

(emphasis added).

        I agree with the majority that membership in a trade
association, in itself, cannot serve as traditional evidence of a
conspiracy. Nonetheless, our task is not to view the TiO2
suppliers’ membership in the TDMA in a vacuum. When
viewed in conjunction with the other evidence, the membership
can be seen in a much different light than Citric Acid. For
starters, there is evidence here (absent in Citric Acid,
Chocolate, or any other case) of 31 parallel price increase
announcements. Nearly all of these announcements came
within thirty days of a TDMA meeting.17 Also absent from

       17
          DuPont’s insistence that it did not begin attending
TDMA meetings until 2010 is moot given that it attended
CEFIC meetings—long before 2010—that were concurrent
with the TDMA meetings. 

n.5.




                               23
Chocolate or Citric Acid is the presence of an industry
consultant (Jim Fisher) who was simultaneously retained by
multiple “competitors” to gather pricing information.
Obviously, no court could say with certainty that DuPont
agreed to fix prices with the other suppliers at the TDMA
meetings. But making a judicial determination with certainty is
not our job at summary judgment. The point is that, the above
evidence, viewed in a light most favorable to Valspar—whose
theory makes perfect economic sense—creates an inference of
concerted action sufficient to reach a jury.

        The majority downplays the role of this key “industry
consultant” Jim Fisher. There is evidence suggesting Fisher
was used as a vehicle to carry out the suppliers’ collusive
agreement. On June 11, 2002, DuPont publicly announced a
price increase.18 Four days prior, Jim Fisher had called
DuPont’s Competitive Intelligence Manager, Connie Hubbard.
In that conversation, Fisher conveyed confidential pricing
information about one of DuPont’s competitors: Huntsman.
This was the first Hubbard had heard of this Huntsman increase
because it had not been announced publicly. This interaction,
in itself, provides traditional conspiracy evidence in that it
suggests Huntsman and DuPont may have used Fisher to
implement a “common plan” to fix prices “even though no
meetings, conversations, or exchanged documents are shown”
between Huntsman and DuPont. 

.19


      18
           Titanium Dioxide, 

at 811.
      19
         Obviously, based on this evidence, and other evidence
of Fisher’s cross-company communications, a reasonable jury
could infer that no direct conversations between the TiO2
manufacturers were needed if Fisher acted as their mouthpiece.




                               24
       There is plentiful evidence of price signaling (another
plus factor) in this case. In Petroleum Products Antitrust
Litigation, the U.S. Court of Appeals for the Ninth Circuit
confronted nearly identical circumstantial evidence of price
signaling. 

, 446 (9th Cir. 1990). Like here, in
Petroleum Products, there was evidence that the competitors’
“price increases were occasionally announced in advance of
their effective 

n.11. This type of
preemptive announcement, the Ninth Circuit recognized, is
“effective in allowing the price leader to communicate its
intention and to receive reactions without having to incur
substantial risk.” Petroleum 

n.11.

        DuPont maintains that it made price announcements
publicly because it was required to do so per its contracts with
customers. While it is true that DuPont was required to notify
its customers when it changed its price, there is no evidence
that DuPont was required to do so publicly. In fact, the record
evidence suggests the opposite. Notably, DuPont never
publicly announced price decreases. This supports an inference
that DuPont’s public price increase announcements were for
the purpose of collusion rather than customer notification.

       The TiO2 manufacturers even admitted they did not use
public price increase announcements to notify customers.
When asked about the purpose of public announcements,
Kronos’s Jay Becker agreed he would “never” rely on a public
price increase to provide Kronos customers with notice of a
price increase. Gary Cianfichi, from Millennium, similarly
stated that he did not believe any customer contract required
public notice. Larry Rogers, from Kronos, testified he “really
couldn’t say why” price increases were announced publicly
given that the customers were notified privately in writing.
This evidence also supports an inference that the




                              25
manufacturers used public price increase announcements as a
concerted method of fixing prices market-wide.

       The traditional conspiracy evidence in this case is much
different than it was in Chocolate. We recognized in Chocolate
that a company’s departure from pre-conspiracy conduct can
serve as traditional conspiracy evidence, which is the “most
important plus factor.” 

, 410. The
caveat is that the change from pre- to post-conspiracy conduct
must be “radical” or “abrupt.” 

In Chocolate, there
was no radical or abrupt change. This case differs from the
departure of pre-conspiracy conduct in Chocolate in three
significant respects.

       First, and most basic, Chocolate involved comparing 2
pre-conspiracy price increases with 3 post-conspiracy price
increases. 

stark contrast, we must compare 3 pre-
conspiracy increases with 31 post-conspiracy increases. In
other words, in Chocolate, the pre-post ratio was just above 1:1
whereas here the ratio is 10:1. It would be difficult to claim that
such a change in conduct is not “abrupt” or “radical.” In a case
with unprecedented (31) parallel price increase
announcements, such a finding creates an unwarranted burden
for plaintiffs relying on circumstantial evidence to prove a
price-fixing conspiracy. The majority attempts to explain this
radical and abrupt shift, implying it was “just an uptick in
frequency.”

       Second, the nature of the communications between
competitors in Chocolate is different from the communications
here. In Chocolate, we found the communications
unpersuasive in part because “unlike in Flat Glass,” the
communications did “not reveal pricing plans dependent on
others following.” 

Here there is evidence, as in Flat




                                26
Glass, that could give rise to an inference that the TiO2
manufacturers’ pricing decisions were dependent upon the
decisions of others. Like Flat Glass and unlike Chocolate, the
communications here were made between high-level rather
than low-level employees. The evidence that Fisher
communicated contemporaneously with people from Kronos,
Millennium, Huntsman, and DuPont suggests the individual
suppliers’ pricing plans were “dependent on others following.”

email advising to modify pricing “[o]nly if” it
meant a Kronos price increase would not be “undercut”
similarly suggests pricing plans “dependent on others
following.” 

. As does Fisher’s direct
testimony that, at an industry meeting, the TiO2 suppliers
“discussed the need to take advantage of tight market
conditions to improve pricing.”20 Finally, evidence that certain
executives asked Jim Fisher to confirm others’ planned price
increase announcements further indicates the suppliers were
making decisions not on their own—as the evidence showed in
Chocolate—but rather, as in Flat Glass, based on other
suppliers’ price decisions.

       Third, the pre-conspiracy prices in Chocolate related to
“different products” than the post-conspiracy price 

. Here, the pre-conspiracy and post-conspiracy
price increase announcements related to the same fungible
product: TiO2. This argument, unlike the argument of the
appellants in Chocolate, is an exact “apples-to-apples”
comparison. 

.

       One final point has been overlooked in comparing this
case to Flat Glass and Chocolate: neither Flat Glass nor
Chocolate involved nearly as many parallel price increase

       20
            In re Titanium Dioxide, 

at 812–13.




                                27
announcements as we have here. To be clear, again, these
parallel price increase announcements, viewed alone, are not
enough to defeat summary judgment. However, we are not to
“consider each individual piece of evidence and disregard it if
we could feasibly interpret it as consistent with the absence of
an agreement to raise prices.” Flat 

.
When viewed alongside all the other evidence in this case, the
unprecedented parallel price increase announcements—many
of which were made hours or days within each other—create
an inference that the suppliers’ conduct was collusive.

        These principles are especially important given that the
majority continually relies on the proposition that “[c]onduct
as consistent with permissible competition as with illegal
conspiracy does not, standing alone, support an inference of
conspiracy sufficient to survive summary judgment.”

; see 

, 244, 246, 249, 252–53 (relying on this principle with
respect to individual pieces of evidence). But see Flat 

(courts shall not “consider each individual
piece of evidence and disregard it if we could feasibly interpret
it as consistent with the absence of an agreement to raise
prices”). Matsushita seems wrongly applied when used to
discredit each separate piece of proffered evidence an antitrust
plaintiff brings forth. Flat 

n.8, 359 n.9.
It is also wrongly applied in a case like this, where the
plaintiffs’ theory—oligopolists conspired to fix prices—makes
perfect economic sense. 

–33 (rendering the Matsushita presumption against liberal
inferences “unnecessary” because the plaintiffs’ “theory is not




                               28
implausible”).21

       It would not be too difficult to view the 31 parallel price
increase announcements, standing alone, as consistent with
interdependence. This, of course, would ignore the
comparatively miniscule amount of pre-conspiracy price
increase announcements: 3. It would also not be too difficult to
view the relative market share stability of the TiO2 suppliers,
standing alone, as consistent with interdependence. This, of
course, would ignore the simultaneous intercompany sales at
below-market value. The same goes for the manufacturers’
TDMA and CEFIC membership, meetings, and the GSP. There
is nothing inherently collusive about trade associations,
industry meetings, or aggregated statistics. This too, of course,
would ignore the role Jim Fisher played as a communicator of
confidential information between the TiO2 suppliers and that
the co-conspirators’ executives had meetings together days and
hours before they announced parallel price increases.

        The majority seems to discount the plausibility of
Valspar’s economic theory. This factor has been a focal point
in our antitrust jurisprudence for decades. Matsushita, 

          DuPont relied on the requirement that, to survive
summary judgment, Valspar must present evidence that “tends
to exclude the possibility” that the alleged conspirators acted
independently. 

. All of the
evidence in this case, viewed in its totality, tends to exclude
that the TiO2 manufacturers acted independently. Contrary to
DuPont’s interpretation, “tends to exclude the possibility” does
not mean “unequivocally excludes the possibility.” Such a
standard would defy our basic summary judgment
jurisprudence, which views the evidence in a light most
favorable to the nonmoving party.




                               29
at 588–91; 

; Flat 

; 

. The majority substitutes this
distinct factor with the more general theory of
interdependence. See Maj. Op. at 8 n.1. According to the
majority, in Flat Glass, this Court refused to draw liberal
inferences in favor of the plaintiff because of the theory of
interdependence. In fact, this Court did draw liberal inferences
in Flat Glass, and reversed summary judgment, partly because
the plaintiff’s economic theory made perfect sense. It simply
stated, in passing, that courts must be “cautious in accepting
inferences from circumstantial evidence” in these types of
cases—not that they do not do so. Flat 

.

        There is no disagreement here that courts should take a
“cautious” approach to accepting inferences from
circumstantial evidence in price-fixing cases involving
oligopolies. See 

(explaining this
approach); Flat 

–59 (same). I agree that
this cautious approach is consistent with our Circuit’s law. I
disagree with the majority’s transformation of this general
“cautious” approach into a new approach that appears to shut
the door on a district court’s ability to accept reasonable
inferences in any case involving oligopolists. Such a black-
and-white approach is not resonant of the type of “caution”
discussed in Flat Glass and Chocolate, but rather acts to usurp
the jury’s role in deciding cases loaded with circumstantial
evidence of an actual agreement to fix prices.

        In Chocolate, this Court confirmed that “[u]nder
Matsushita, the range of acceptable inferences that may be
drawn from ambiguous or circumstantial evidence varies with
the plausibility of the plaintiffs’ 

; see
also 

(comparing cases where this Court has drawn
liberal inferences when the plaintiff’s theory made sense with




                               30
cases where this Court refused to do so because the theory did
not make sense). In Chocolate, this Court did not view the
theory of interdependence as a complete roadblock to drawing
liberal inferences. 

The only time this should
happen is if the plaintiff is relying on “ambiguous evidence
alone.” 

Up until today, the general theory of
interdependence never supplanted a court’s consideration of
the plaintiff’s economic theory.22




       22
          In an attempt to assuage concerns about its analysis,
the majority tries to justify its heightened standard through
Chocolate. According to the majority, this Circuit’s precedent
has long required a plaintiff in this type of case to prove that it
is “more likely than not” true that there was a price-fixing
conspiracy in order to survive summary judgment. Majority at
9 n.1, 13, 13 n.4, 29–30, 29 n.14. The majority makes too much
of this dicta. This was not, as the majority claims, some
profound announcement of a new legal standard or rule.
Indeed, this purportedly axiomatic language has never once
been used in any other price-fixing case involving oligopolies.
See generally Matsushita, 

(not using this
language anywhere); Monsanto, 

(same); Flat
Glass, 

(same); Baby Food, 

(same).
The use of that phrase in Chocolate simply reflected the
Court’s conclusion that the plaintiffs, in that particular case,
had not been able to point to any reasonable inferences of a
conspiracy. Even assuming arguendo this alleged “standard”
were actually the measuring stick, the plaintiffs in this case
have certainly met it.




                                31
       C.     Conclusion

        I am certainly mindful of the theory of interdependence
and the presence of an oligopoly. With that said, from the very
start, Valspar presented a theory that makes perfect economic
sense. It supported this theory with strong evidence of parallel
conduct in the form of 31 (an unprecedented amount) of
parallel price increase announcements. Recognizing conscious
parallelism to be insufficient on its own to survive summary
judgment, Valspar also presented viable evidence in support of
the plus factors: (i) price signaling, (ii) exchanges of
confidential information, (iii) relatively static market shares,
(iv) intercompany sales of TiO2 at below market price, (v)
abrupt departure from pre-conspiracy conduct, and (vi) a
market susceptible to conspiracy. Although the TiO2 market is
an oligopoly, Valspar also presented evidence that did not
simply restate interdependence: non-price acts against self-
interest. Finally, it presented traditional conspiracy evidence.
Viewed together, and not compartmentalized, all this evidence
was more than sufficient to preclude summary judgment.

       For these reasons, I respectfully dissent.




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