In Re Publication Paper Antitrust Litigation , 690 F.3d 51 ( 2012 )

11-101-cv
In re: Publication Paper Antitrust Litig.
United States Court of Appeals
FOR THE SECOND CIRCUIT
August Term, 2011
(Argued: December 21, 2011 Decided: August 6, 2012)
Docket No. 11-101-cv
IN RE: PUBLICATION PAPER ANTITRUST LITIGATION
BEFORE: CALABRESI, RAGGI, and CARNEY, Circuit Judges.
Appeal from a judgment of the U.S. District Court for the District of
Connecticut (Stefan R. Underhill, Judge), awarding summary judgment to
defendants Stora Enso North America Corporation (“SENA”) and Stora Enso Oyj
(“SEO”) in an antitrust class action alleging a conspiracy to fix prices in violation of
section 1 of the Sherman Act, 15 U.S.C. § 1. We hold that the district court erred in
granting summary judgment to SENA because a jury could reasonably find that
SENA and former defendants UPM-Kymmene Corporation and UPM-Kymmene,
Inc., reached an unlawful agreement to raise the price of publication paper, and
that this agreement injured plaintiffs. We also conclude that the district court
properly granted summary judgment to SEO because plaintiffs failed to offer
sufficient evidence from which a jury could reasonably conclude that SEO had any
direct involvement in decisions regarding the marketing, sale, or pricing of
publication paper in the United States. Accordingly, we vacate the district court’s
judgment in part, affirm it in part, and remand the case for further proceedings
consistent with this opinion.
DANIEL A. SMALL, Cohen Milstein Sellers & Toll
PLLC, Washington, DC (Kathleen M. Konopka,
Cohen Milstein Sellers & Toll PLLC, Washington,
DC; David R. Schaefer, Brian P. Daniels, Brenner,
Saltzman & Wallman LLP, New Haven, CT; Gary
Specks, Kaplan Fox & Kilsheimer LLP, Highland
Park, IL; Vincent J. Esades, Heins Mills & Olson,
PLC, Minneapolis, MN; Steven J. Greenfogel,
Daniel B. Allanoff, Meredith Cohen Greenfogel &
Skirnick, PC, Philadelphia, PA; Mark R. Rosen,
Jeffrey Gittleman, Barrack, Rodos & Bacine,
Philadelphia, PA, on the brief), for Plaintiffs-
Appellants.
DAVID MARX, JR., McDermott Will & Emery LLP,
Chicago, IL (Amy J. Carletti, McDermott Will &
Emery LLP, Chicago, IL; James T. Shearin,
Pullman & Comley, LLC, Bridgeport, CT; Nicole L.
Castle, McDermott Will & Emery LLP,
Washington, DC, on the brief), for Defendants-
Appellees.
SUSAN L. CARNEY, Circuit Judge:
Plaintiffs appeal from an award of summary judgment to defendants in an
antitrust class action alleging a conspiracy to fix prices in violation of section 1 of
the Sherman Act, 15 U.S.C. § 1. Defendants Stora Enso North America Corporation
(“SENA”) and Stora Enso Oyj (“SEO”) and former defendants UPM-Kymmene
Corporation and UPM-Kymmene, Inc. (together, “UPM”) are manufacturers and
sellers of “publication paper,” a type of paper used in preparing printed material of
various types. Plaintiffs—a certified class consisting of direct purchasers of
defendants’ paper products—contend that, in the relevant period, they paid higher
prices for publication paper than they would have in the absence of the alleged
price-fixing agreement.
Plaintiffs’ theory of conspiracy is relatively simple. In August and November
2002, and again in February 2003, SENA and UPM—as well as several other
publication paper manufacturers—raised their list prices for certain types of
2
publication paper. The price hikes mirrored each other in amount and occurred in
close succession. Plaintiffs maintain that SENA and UPM instituted these three
price increases pursuant to an agreement, rather than independently. Plaintiffs
also contend that, in the same time frame, SENA and UPM coordinated the closure
of paper mills in order to reduce the supply of publication paper, and that SEO
played a material role in the overall price-fixing scheme. The U.S. District Court
for the District of Connecticut (Stefan R. Underhill, J.) concluded that defendants
were entitled to summary judgment on all counts because, in its view, and in light
of the standards articulated by the Supreme Court in Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), plaintiffs “failed to offer
sufficient evidence to dispel the possibility that SENA and UPM acted
independently.” In re Publication Paper Antitrust Litig., No. 3:04-md-1631, 2010
WL 5253364, at *13 (D. Conn. Dec. 14, 2010).
We hold that the district court erred in granting summary judgment to SENA
because a jury could reasonably find that SENA and UPM entered into an
agreement to raise the price of publication paper, and that, as implemented, this
agreement damaged plaintiffs. SENA was thus not entitled to judgment as a
matter of law. As to SEO, however, we conclude that the district court properly
awarded it summary judgment because plaintiffs failed to offer sufficient evidence
from which a jury could reasonably conclude that SEO had any direct involvement
in decisions regarding SENA’s marketing, sale, or pricing of publication paper in
the United States. Accordingly, we vacate the district court’s judgment in part,
3
affirm it in part, and remand the case for further proceedings consistent with this
opinion.
I. BACKGROUND
Unless otherwise noted, the following facts are not disputed by the parties.
A. The Parties
SEO is a pulp and paper manufacturer headquartered in Helsinki, Finland.
In August 2000, SEO acquired Consolidated Papers, Inc., an American paper
manufacturer located in Wisconsin. Thereafter, Consolidated Papers—renamed
SENA—operated as a subsidiary of SEO. From August 2000 until May 2003, Kai
Korhonen was President of SENA. Under Korhonen’s leadership, SENA’s sales and
marketing team would recommend to him whether SENA should initiate a price
increase or follow a price increase previously announced by a competitor. As
President, Korhonen had the “final say” over SENA’s pricing strategy and decisions.
Trial Tr. at 262.1
UPM is also a pulp and paper manufacturer headquartered in Helsinki. In
January 2002, Markku Tynkkynen became President of UPM’s Magazine Paper
Division. In this role, Tynkkynen had responsibility for, and “final authority” over,
UPM’s pricing of publication paper in the United States. Dep. of Markku
Tynkkynen, Jan. 22, 2009, at 18.
1
Citations to the “Trial Tr.” refer to the transcript of SENA’s criminal trial on alleged
antitrust violations (discussed infra). In addition, we make a few citations to materials contained in
the sealed appendix. With respect to that material only, we hereby lift the seal.
4
B. The Publication Paper Industry
“Commercial paper” is a type of publication paper that is used for printing
and advertising. Manufactured in several different grades, some of which are
numbered 1 through 5, its quality ranges from “fine” (the most expensive type) to
“supercalendered” (the least expensive). Fine paper—categorized in the industry as
including grades 1, 2, and 3—is typically used for high-end publications. Magazine
paper—comprised of grades 4 and 5—is generally used in ordinary magazines and
store catalogues. Supercalendered paper—which is not assigned grade numbers—is
often used to print the advertising inserts found in newspapers.
The present action involves “publication paper,” which, for purposes of this
litigation, is defined as grades 3, 4, and 5 of “coated” commercial paper.2 The
publication paper that plaintiffs purchased thus includes the coated products of
some fine, and all magazine, paper. Publication paper is commonly considered a
commodity product—i.e., a product that is uniform rather than differentiated across
sellers. The publication paper market in North America is an oligopoly.
In 2002 and 2003, when the price-fixing agreement is alleged to have been
made and implemented, International Paper (“IP”), SENA, and UPM ranked first,
second, and third, respectively, in volume of production of publication paper in
North America. Each had a market share of between 17% and 21%; their combined
2
Plaintiffs describe “coated” papers as “papers that contain a layer of coating material . . . in
combination with an adhesive on one or both surface(s) of the paper.” Compl. ¶ 6.
5
market shares totaled approximately 60%.3 During the same two-year period,
publication paper was selling at historically low prices, and the industry suffered
from excess capacity and low demand.4 Despite these unfavorable conditions, in
August 2002, IP and MeadWestvaco (“Mead”), another publication paper
manufacturer, both announced price increases; in November 2002, Mead announced
a price increase; and in February 2003, IP announced a price increase. Both in the
timing of the announcements and the amount of the increases, SENA and UPM’s
price increases in August and November 2002 and in February 2003 closely followed
those of their competitors.
C. The Alleged Conspiracy
The conspiracy alleged in this action centers around certain private meetings
and phone calls between Korhonen and Tynkkynen that undisputedly occurred soon
before each of these three price increase announcements.
The two men originally met in Finland in the late 1970s, when both were
working as production engineers for Ahlström Company. During the approximately
five years that they worked together, they were also neighbors, and became close
friends. Tynkkynen left Ahlström Company in 1982; Korhonen, however, remained
at the firm, which was later acquired by a predecessor company to SEO. Over the
twenty years following Tynkkynen’s departure, despite their earlier close
3
The individual market shares at the time of other publication paper producers are unclear
from the record.
4
The parties dispute whether demand for publication paper increased in the latter half of
2002 and in 2003.
6
friendship, Korhonen and Tynkkynen saw each other only on occasion, their
interactions typically limited to social settings and meetings of the Finnish Paper
Engineers Association, of which they were both members.
1. The August 2002 Price Increase
In August 2002, soon after he became President of UPM’s Magazine Paper
Division and twenty years after they last worked as colleagues, Tynkkynen invited
Korhonen, who by then had become President of SENA, to lunch. As he later
testified at SENA’s criminal trial, Tynkkynen wanted Korhonen to provide him
with insight into operating in the North American market, a market with which
Tynkkynen was unfamiliar. Tynkkynen also sought to determine whether SENA
had sufficient market power to lead a price increase in the United States.
In response to Tynkkynen’s invitation, Tynkkynen and Korhonen met for
approximately 90 minutes on August 8 in a private executive lunchroom at UPM’s
headquarters in Helsinki. During the meeting, Korhonen expressed his opinion
that, contrary to Tynkkynen’s view, SENA was not a market leader for coated grade
5 or supercalendered paper. Tynkkynen and Korhonen estimated that together
SENA and UPM likely would have a combined 40% market share for coated grade 5
paper. Tynkkynen advised Korhonen, “UPM has been a follower and will be a
follower”—meaning that UPM would follow price increases announced by any major
competitor and would also try to implement those increases consistently with its
7
customers.5 Trial Tr. at 177, 104. No one else was present during the meeting, and
Korhonen did not disclose to anyone at SENA that he met with Tynkkynen or
mention the substance of their discussion.
The following day, on August 9, IP and Mead announced a $2 per
hundredweight (“cwt.”) price increase for publication paper grades 2 through 4
effective October 1, 2002. Four days later, on August 13, SENA issued an identical
announcement as to price, paper grades, and effective date. On August 21, UPM
announced its $2 per cwt. price increase for publication paper grades 3 and 4, on the
same schedule. (According to plaintiffs, UPM sold little or no grade 2 publication
paper in the United States at that time.)
2. The November 2002 Price Increase
On November 6, again at Tynkkynen’s invitation, Korhonen and Tynkkynen
met at the Chicago O’Hare airport and had lunch together in a private dining room
at the O’Hare Hilton Hotel. During their meeting, Korhonen and Tynkkynen
discussed the poor economic conditions in the industry: prices were eroding because
of an excess supply. Notwithstanding the August price increase, which had become
effective approximately five weeks earlier, they agreed that the industry was in
need of a price increase. Tynkkynen again advised Korhonen that UPM would
follow if a competitor announced a price increase. Apart from his personal
5
To implement a price increase once it is announced, manufacturers in the publication paper
industry (as, surely, in many industries) engage in individualized negotiations with customers to try
to persuade them to accept all or part of the price increase, while customers—particularly larger ones
with more leverage—attempt to convince the vendor not to apply the full proposed price increase to
their accounts.
8
assistant, who arranged his itinerary, Korhonen did not disclose to anyone at SENA
that he met with Tynkkynen.
The following week, on November 15, Mead announced a $2 per cwt. price
increase for publication paper grades 1 through 4 effective January 1, 2003. On
November 19, after UPM had decided to follow Mead’s price increase but before any
public announcement was made, Tynkkynen called Korhonen and left a voicemail
stating, “Mead is out, we are following.” Id. at 118. Korhonen did not return the
call. The following day, on November 20, both SENA and IP announced a $2 per
cwt. price increase for publication paper grades 2 through 4, also effective January
1, 2003. Two days later, on November 22, UPM issued a written announcement
declaring a $2 per cwt. price increase for publication paper grades 2 through 4, also
effective as of the turn of the year.
3. The February 2003 Price Increase
On February 3, 2003, executives at IP decided at an internal meeting to
increase the price of their grade 5 publication paper, subject to final approval by
senior IP officials. Three days later, on February 6, Korhonen called Tynkkynen.
Each man asserts that he does not remember exactly what was discussed during
the call, which lasted approximately five minutes.6
6
The parties dispute whether, when they spoke, either Korhonen or Tynkkynen (or both)
were aware of IP’s possible price increase. Asked at SENA’s criminal trial what prompted him to call
Tynkkynen, Korhonen testified that he did not have a “specific recollection” of the phone call, but
that it “c[ould] be related to” IP’s price increase. Trial Tr. at 308. In a subsequent declaration,
however, Korhonen asserted that during the February 6 phone call he did not discuss with
Tynkkynen “any specific price increase or a possible price increase.” Decl. of Kai Korhonen in Supp.
of Defs. SEO and SENA’s Mot. for Summ. J. ¶ 39. Tynkkynen contends that Tynkkynen first learned
9
On February 10, IP publicly announced a $3 per cwt. price increase for grade
5 publication paper effective April 1, 2003. The following morning, on February 11,
Korhonen called Tynkkynen and left a message requesting that Tynkkynen return
his call. That afternoon, Tynkkynen called Korhonen, and the two men spoke for
four minutes. During the call, Korhonen told Tynkkynen, “IP’s out and [SENA] will
match and follow.” Id. at 84. Tynkkynen understood “match and follow” to mean
that SENA would follow IP’s price increase and also would “implement [the price
increase] seriously” at the customer end—in other words, that SENA would hold a
hard line in negotiating with customers. Id. Tynkkynen informed Korhonen that
UPM had notified some of its
customers of its intention to match IP’s price increase. Approximately one half-
hour after the men’s phone call, SENA e-mailed and faxed a brief letter to its
customers announcing a $3 per cwt. price increase for grade 5 paper, coated grade 4
paper, and supercalendered products. That same afternoon, UPM mailed a bulletin
to its customers in which it, too, announced a $3 per cwt. price increase for grade 5
publication paper. Both price increases were to take effect April 1.
After Korhonen and Tynkkynen’s conversation on February 11, Tynkkynen
advised Kevin Lyden, President of UPM’s North American subsidiary, that he
thought SENA was “going to be tough on the price increase” it had announced. Dep.
of Peter Littley, Feb. 18, 2010, at 14. Lyden understood Tynkkynen’s statement to
of IP’s plan to raise its prices on February 8, two days after the phone call.
10
mean that SENA would stand firm on its price increase when negotiating contracts
with its customers. According to Lyden, Tynkkynen’s assessment of how
aggressively SENA would implement the price increase was based, in part, on his
February 11 phone call with Korhonen.
D. The Department of Justice Investigation and SENA’s Criminal Trial
In 2004, the United States Department of Justice (“DOJ”) launched a
criminal antitrust investigation into the publication paper industry. In July 2004,
after learning that government investigators sought to interview him in relation to
the investigation, Tynkkynen called Korhonen from a public telephone booth.
Tynkkynen concedes that he used a public telephone in order to ensure that he
“ha[d] a clean line”—i.e., a phone line that was not being “followed or taped” by law
enforcement authorities. Dep. of Markku Tynkkynen, Jan. 22, 2009, at 136.
During their conversation, Tynkkynen proposed that he and Korhonen develop a
“joint story” concerning what they had discussed during their private phone calls
and meetings. Trial Tr. at 133. Korhonen concurred that developing a “joint story”
was “a good idea.” Id. They decided that if interviewed, they would tell law
enforcement officials that in their conversations in 2002 and 2003 they discussed
railroad fees, timber swaps, and the Finnish Paper Engineers Association. Pricing
was not among those topics that they agreed to identify as having been discussed.
(Later, in an August 2004 phone call, Tynkkynen told Korhonen that he intended to
tell the government “everything” that he remembered about their meetings, rather
than the “joint story” they had discussed in July. Id. at 135-36.)
11
In February 2006, the DOJ granted conditional full immunity to UPM in
return for the company’s cooperation in the price-fixing investigation. In December
2006, a grand jury issued a one-count indictment against SENA charging that from
August 2002 through June 2003, SENA and others entered into a conspiracy to fix
the price at which the companies sold publication paper to customers in the United
States, in violation of section 1 of the Sherman Act. The case against SENA was
tried to a jury in the U.S. District Court for the District of Connecticut (Christopher
F. Droney, J.) in July 2007. United States v. Stora Enso N. Am. Corp., No. 3:06-cr-
323.
During the criminal trial, Tynkkynen testified, inter alia, that during their
phone conversation on February 11, 2003, he and Korhonen reached an “agreement”
that UPM and SENA would “match[ ]” IP’s February 2003 price increase for coated
grade 5 paper and that both firms would “seriously implement” that price increase
with their customers. Trial Tr. at 88, 247-48. For his part, Korhonen testified that
at the time of the November 6, 2002 meeting, he understood Tynkkynen to be trying
to “initiate something to get the prices improved.” Id. at 281. Korhonen further
testified that after the November 6 meeting, “some phone calls” occurred between
him and Tynkkynen during which “intentions were exchanged about [publication]
paper price increases,” and that, during their February 11, 2003 phone conversation
in particular, Korhonen told Tynkkynen what SENA was “going to do,” and,
likewise, Tynkkynen told Korhonen what UPM was “going to do.” Id. at 282, 284-
85. After both parties presented their evidence, SENA unsuccessfully moved for
12
acquittal. On July 19, 2007, in a general verdict, the jury acquitted SENA of
criminal antitrust violations.
E. Procedural History
After the DOJ’s investigation became public, individual plaintiffs brought
nine separate actions against various manufacturers of publication paper in federal
district courts across the country, alleging price fixing in the U.S. market for
publication paper. In November 2004, the Judicial Panel on Multidistrict Litigation
(“MDL”) consolidated and transferred these actions to the U.S. District Court for
the District of Connecticut, thereby creating MDL 1631, In re Publication Paper
Antitrust Litigation. Additional suits were filed over the course of the following
year. They, too, were consolidated with MDL 1631.
In their fifth and final amended complaint, filed in March 2008, plaintiffs
brought claims under section 1 of the Sherman Act, 15 U.S.C. § 1, and sections 4
and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, seeking treble damages and
alleging that from October 1, 2002, to May 31, 2004, SENA, SEO, and UPM
conspired to fix the prices of coated paper grades 3, 4, and 5. In April 2008, the
district court approved plaintiffs’ settlement with UPM, leaving only SENA and
SEO as defendants in the MDL proceedings. In May 2009, the district court
certified the plaintiff class as “[a]ll persons . . . who directly purchased Publication
Paper for delivery in the United States from [SENA or SEO] . . . at any time during
the period from October 1, 2002 to and including September 30, 2003” (the “class
period”). Order Granting Class Certification, D. Ct. Dkt. No. 470. After the close of
13
discovery, defendants moved for summary judgment, and the district court granted
defendants’ motion. Publication Paper, 2010 WL 5253364, at *1.
In its decision, the district court rejected plaintiffs’ argument that
Tynkkynen’s testimony that he and Korhonen reached an “agreement” on pricing in
February 2003 constituted sufficient “direct evidence” of price fixing to withstand
defendants’ motion for summary judgment. Id. at *8. As to plaintiffs’ other
evidence, the court acknowledged that SENA and UPM’s three price increases
constituted parallel conduct; that the publication paper industry was conducive to
collusion; and that the communications between Tynkkynen and Korhonen
supported the existence of a conspiracy. Nevertheless, the court determined that
plaintiffs’ evidence did not sufficiently “exclude the possibility that SENA acted
independently in raising the prices charged for publication paper” and that, in any
event, “even if Tynkkynen and Korhonen agreed that UPM and SENA would follow
rivals’ future price increases,” plaintiffs had not demonstrated that such an
agreement “had some effect on future price increases announced by SENA.” Id. at
*13-14. The district court also concluded that plaintiffs failed to show that
defendants conspired to reduce the supply of publication paper by closing certain of
their paper mills, and ruled that plaintiffs offered “virtually no evidence”
demonstrating that SEO played a role in the alleged price-fixing scheme. Id. at *17.
This appeal followed.
On appeal, plaintiffs contend that the district court made several factual and
legal errors that require us to reverse the judgment entered for defendants. In
14
particular, they maintain that the district court improperly discounted direct
evidence of a price-fixing agreement; improperly failed to draw reasonable
inferences in their favor; and erred in concluding as a matter of law that the alleged
agreement between Korhonen and Tynkkynen had no effect on SENA’s pricing
decisions.7 Our task is to determine whether, on the evidence presented, a jury
could reasonably conclude that defendants reached an agreement “for the purpose
and with the effect of raising . . . the price of” publication paper. United States v.
Socony Vacuum Oil Co., 310 U.S. 150, 223 (1940); accord Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 336 (2d Cir. 2008). This requires
evidence sufficient to permit a preponderance finding that “higher prices came
about as a result of [the agreement], rather than through independent action of the
defendants.” Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir. 1987).
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s grant of summary judgment. MBIA Inc.
v. Fed. Ins. Co., 652 F.3d 152, 158 (2d Cir. 2011). We will affirm only if, after
construing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in its favor, id., “there is no genuine dispute as to
7
Plaintiffs also take issue with the district court’s conclusion that there was insufficient
evidence from which a reasonable jury could find that Korhonen and Tynkkynen conspired to reduce
the supply of publication paper. We agree with the district court that the evidence demonstrates
conclusively that SENA’s plan to reduce capacity was in development long before Korhonen and
Tynkkynen began communicating in August 2002. Accordingly, we will not discuss further plaintiffs’
allegations concerning reductions in capacity.
15
any material fact and the movant is entitled to judgment as a matter of law,” Fed.
R. Civ. P. 56(a).
Our Court has observed that “[b]y avoiding wasteful trials and preventing
lengthy litigation that may have a chilling effect on pro-competitive market forces,
summary judgment serves a vital function in the area of antitrust law.” Tops
Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998). Nevertheless,
summary judgment is not a substitute for trial. Apex, 822 F.2d at 252. Thus, when
the evidence admits of competing permissible inferences with regard to whether a
plaintiff is entitled to relief, “the question of what weight should be assigned to
[those] inferences remains within the province of the fact-finder at a trial.” Id. at
253.
B. Price-Fixing Claims
Section 1 of the Sherman Act provides that “[e]very contract, combination in
the form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . is
. . . illegal.” 15 U.S.C. § 1. Notwithstanding its broad language, this provision
prohibits “only unreasonable restraints of trade.” Bus. Elecs. Corp. v. Sharp Elecs.
Corp., 485 U.S. 717, 723 (1988). Per se liability attaches, however, to “plainly
anticompetitive” agreements. Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006). An
agreement between competitors to fix prices, known as a horizontal price-fixing
agreement, categorically constitutes an unreasonable restraint, and, accordingly, is
unlawful per se. Id.To prevail on a claim of horizontal price fixing, a plaintiff must demonstrate
that the defendants entered into a conspiracy “formed for the purpose and with the
16
effect of raising . . . price[s].” Socony-Vacuum, 310 U.S. at 223. In other words, the
evidence must show that: (1) the defendants conspired to raise prices, and (2) this
conspiracy caused injury to the plaintiff in the form of artificially inflated prices.
See Apex, 822 F.2d at 253; In re Flat Glass Antitrust Litig., 385 F.3d 350, 356 (3d
Cir. 2004).
Parallel pricing among competitors, also known as “conscious parallelism,” is
often proffered as evidence of a price-fixing agreement. “Conscious parallelism”
describes “the process, not in itself unlawful, by which firms in a concentrated
market might in effect share monopoly power, setting their prices at a
profit-maximizing, supracompetitive level by recognizing their shared economic
interests and their interdependence with respect to price and output decisions.”
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993).
Conscious parallelism alone, however, does not establish an antitrust
violation. Such behavior is consistent with both unlawful conspiracy and lawful
independent conduct. See Apex, 822 F.2d at 253. Accordingly, when the
defendants’ parallel pricing forms the basis for a price-fixing claim, a plaintiff must
show additional circumstances—often referred to as “plus factors”—which, when
viewed in conjunction with the parallel conduct, would permit a fact-finder to infer
a conspiracy. Id. Such “plus factors” may include, for example: a common motive to
conspire; evidence that the parallel acts were against the apparent economic self-
interest of the individual alleged conspirators; or evidence of “a high level of
interfirm communications.” Id. at 254.
17
Section 1 of the Sherman Act does not itself provide a private right of action.
That right is established by section 4 of the Clayton Act, which authorizes private
suits by “any person who shall be injured in his business or property by reason of
anything forbidden in the antitrust laws,” 15 U.S.C. § 15, and affords prevailing
plaintiffs a claim to three times their actual damages.
C. Evidence of an Agreement
1. The Scope of Matsushita
In concluding that summary judgment was appropriate in this case, the
district court cited extensively to the Supreme Court’s decision in Matsushita.
Acknowledging that “the evidence as a whole arguably could support an inference of
illegal collusive behavior,” the district court nonetheless determined that plaintiffs
“failed to offer sufficient evidence to dispel the possibility” that SENA acted
independently. Publication Paper, 2010 WL 5253364, at *9, *13. The parties
dispute the extent to which the “tends to exclude” formulation articulated in
Matsushita, 475 U.S. at 588 (“To survive a motion for summary judgment . . . a
plaintiff seeking damages for a violation of § 1 must present evidence that ‘tends to
exclude the possibility’ that the alleged conspirators acted independently.”), applies
under the circumstances presented here. We take this opportunity to clarify the
application of the standards established in that case.
In Matsushita, the plaintiffs alleged that Japanese television manufacturers
had engaged in a longstanding and wide-ranging conspiracy to fix prices in the
United States below the level that their costs and market conditions made
18
reasonable. According to the plaintiffs’ theory, the defendants’ predatory prices
would eventually force competitors to leave the market, at which point the
defendants would raise prices to monopoly levels. The Court observed that, as a
general matter, “predatory pricing schemes are rarely tried, and even more rarely
successful.” Id. at 589. Indeed, the conspiracy alleged in Matsushita had spanned
20 years without achieving the putatively desired monopoly. Because it found both
that the plaintiffs’ theory of conspiracy was implausible and that the defendants’
price-cutting conduct could as readily be explained as legitimate competitive
behavior, the Court required the plaintiffs to “come forward with more persuasive
evidence to support their claim than would otherwise be necessary” to withstand
summary judgment. Id. at 587.
Matsushita, then, stands for the proposition that substantive “antitrust law
limits the range of permissible inferences” that may be drawn from ambiguous
evidence. Id. at 588; accord In re High Fructose Corn Syrup Antitrust Litig., 295
F.3d 651, 654, 661-62 (7th Cir. 2002) (Posner, J.). It further holds that the range of
inferences that may be draw from such evidence depends on the plausibility of the
plaintiff’s theory. See Matsushita, 475 U.S. at 588; Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 764 (1984); Apex, 822 F.2d at 253. Thus, where a
plaintiff’s theory of recovery is implausible, it takes “strong direct or circumstantial
evidence” to satisfy Matsushita’s “tends to exclude” standard. Apex, 822 F.2d at
253. By contrast, broader inferences are permitted, and the “tends to exclude”
standard is more easily satisfied, when the conspiracy is economically sensible for
19
the alleged conspirators to undertake and “the challenged activities could not
reasonably be perceived as procompetitive.” Flat Glass, 385 F.3d at 358; cf.
Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468 (1992)
(“Matsushita demands only that the nonmoving party’s inferences be reasonable in
order to reach the jury, a requirement that was not invented, but merely
articulated, in that decision.”).
At several points in its opinion, intermingled with its use of the “tends to
exclude” standard, the district court stated that plaintiffs were required to “exclude”
or “dispel” the possibility that defendants acted independently. Publication Paper,
2010 WL 5253364, at *10-11, *13-14. Requiring a plaintiff to “exclude” or “dispel”
the possibility of independent action places too heavy a burden on the plaintiff.
Rather, if 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; it need not be the sole inference. As Professors Areeda and Hovenkamp
have advised:
It is important not to be misled by Matsushita’s statement . . . that the
plaintiff’s evidence, if it is to prevail, must “tend . . . to exclude the
possibility that the alleged conspirators acted independently.” The
Court surely did not mean that the plaintiff must disprove all
nonconspiratorial explanations for the defendants’ conduct. Not only
did the court use the word “tend,” but the context made clear that the
Court was simply requiring sufficient evidence to allow a reasonable
fact finder to infer that the conspiratorial explanation is more likely
than not.
Phillip E. Areeda and Herbert Hovenkamp, Fundamentals of Antitrust Law,
§ 14.03(b), at 14-25 (4th ed. 2011) (footnotes omitted).
20
Of course, the standards established in Matsushita do not apply at all when a
plaintiff has produced unambiguous evidence of an agreement to fix prices. As
such, “an admission by the defendants that they agreed to fix their prices is all the
proof a plaintiff needs.” Corn Syrup, 295 F.3d at 654. Thus, at least three of our
sister circuits have held that summary judgment is generally not appropriate where
a plaintiff has produced direct, as opposed to circumstantial, evidence of an
agreement to fix prices. See Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d
1287, 1300 (11th Cir. 2003); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware
Co., Inc., 998 F.2d 1224, 1233 (3d Cir. 1993); In re Coordinated Pretrial Proceedings
in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 441 (9th Cir. 1990); see also R.B.
Ventures, Ltd. v. Shane, 112 F.3d 54, 58 (2d Cir. 1997) (quoting, in dicta, Ninth
Circuit decision drawing distinction between direct and circumstantial antitrust
evidence). Some courts have reached this conclusion by reasoning that “direct
evidence . . . requires no inferences to establish the proposition or conclusion being
asserted.” In re Baby Food Antitrust Litig., 166 F.3d 112, 118 (3d Cir. 1999).
Neither party in this case questions this evidentiary distinction.
Nevertheless, we do not think it necessary to draw bright lines to decide this case.
See Corn Syrup, 295 F.3d at 661-62. All evidence, including direct evidence, can
sometimes require a factfinder to draw inferences to reach a particular conclusion,
though “[p]erhaps on average circumstantial evidence requires a longer chain of
inferences.” Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900 (7th Cir. 2006)
(Posner, J.). Here, the totality of the evidence, viewed in the light most favorable to
21
plaintiffs and with proper regard for the Matsushita standards, could support a
reasonable inference of illegal collusive behavior.
2. Plaintiffs’ Evidence of an Agreement to Fix Prices
In this case, the district court concluded that “[n]othing in the record
concerning the February 2003 price increase suggests that Tynkkynen or Korhonen
had an agreement to follow the IP increase.” Publication Paper, 2010 WL 5253364,
at *9. We disagree. As previously discussed, Tynkkynen testified during SENA’s
criminal trial that he and Korhonen reached an “agreement” that UPM and SENA
would follow IP’s February 2003 price increase and that they would implement that
price increase on the customer end “seriously,” i.e., to the fullest extent possible.
Whether or not this testimony—a co-conspirator’s acknowledgment that he
understood his numerous communications with Korhonen to reflect a price-fixing
agreement—admits any ambiguity as to Korhonen’s parallel understanding of the
same communications, the testimony is surely strong evidence of a collusive scheme
between UPM and SENA. That would be sufficient to satisfy Matsushita’s “tends to
exclude” standard even if plaintiffs’ theory were implausible, which it is not. See
Apex, 822 F.2d at 253.8
The district court considered Tynkkynen’s testimony to be of limited value, in
part, because, as the court explained and is not disputed, “English is not the native
language of Tynkkynen and Korhonen.” Publication Paper, 2010 WL 5253364, at
*8. Any notion that Tynkkynen did not understand the meaning of “agreement” in
8
Any questions of Tynkkynen’s credibility, perception, or memory are, of course, for the jury.
On this appeal, we must assume they will be answered in favor of plaintiffs.
22
English or the import of his testimony, however, is belied by the record. Tynkkynen
repeatedly explained in court that he and Korhonen had a “common
understanding,” and that the substance of that “understanding” was that “both
companies are matching . . . [IP’s] coated #5 price increase and will seriously
implement the price increase. So it was a common understanding, and, thus, [an]
agreement.” Trial Tr. at 247-48. Moreover, defendants conceded at oral argument
before this Court that translation and language were not an issue. Oral Arg. Tr. at
23. Although an “understanding” might in some contexts be intended to signal an
“expectation” rather than “agreement,” the substance of Tynkkynen’s testimony and
the context of the events he describes fully support the conclusion that when he said
“understanding”—as when he said “agreement”—he meant “agreement.”
Plaintiffs have provided additional evidence to support a reasonable finding
that SENA and UPM engaged in price fixing. The district court found, and
defendants do not contest, that the publication paper industry is conducive to
collusion: publication paper is a commodity product with few substitutes; the
market is controlled by a limited number of sellers (principally, IP, SENA, and
UPM); and high capital investment costs limit the entry of new market players. See
Corn Syrup, 295 F.3d at 656-57 (describing characteristics that make a market
susceptible to collusion). Furthermore, during the class period, the publication
paper industry suffered from excess capacity and historically low prices, conditions
that make “price competition more than usually risky and collusion more than
usually attractive.” Id. at 657. Finally, there is ample evidence of conspiratorial
23
behavior. Most notably, it is undisputed that in private phone calls and
meetings—for which no social or personal purpose has been persuasively
identified—Tynkkynen shared UPM’s pricing strategies with Korhonen and both
men disclosed to each other their companies’ intentions to increase prices before
those decisions had been publicly announced. Tynkkynen and Korhonen also
developed a “joint story” to conceal from the government the true nature of their
communications—behavior from which a jury could infer that both men were aware
that their communications and related actions regarding publication paper pricing
violated the law.
We recognize that despite the strength of plaintiffs’ evidence of an
agreement, the totality of the evidence admits of alternative interpretations—
namely, that SENA as a corporation acted independently of UPM in deciding to
increase its prices and that the price increases each company announced were the
product of certain characteristics of the industry and not any agreement between
Korhonen and Tynkkynen. But it is the province of the jury to determine how much
weight to accord Tynkkynen’s testimony and the other relevant evidence. We
believe that, on the basis of Tynkkynen’s testimony alone, a jury could reasonably
find that SENA and UPM made an agreement to fix the prices at which their
companies sold publication paper in the latter part of 2002 and early 2003.
Plaintiffs’ other evidence provides additional support for the theory that, as early as
August 2002, Korhonen and Tynkkynen reached an agreement to follow price
increases announced by their competitors. In sum, unlike in Matsushita, the record
24
in this case presents strong, if not irrefutable, evidence of a conspiracy in a context
where the conspiracy’s goals were aligned with the conspirators’ economic interests.
D. Causation
1. Applicable Law
Having determined that a jury could reasonably find that SENA and UPM
unlawfully agreed to raise prices, we now consider whether there was enough
evidence for a jury to find that such an agreement actually caused the price
increases that occurred.9 This Court has had little occasion to explore at length the
issue of causation in the antitrust context,10 although certain principles have
emerged from the Supreme Court’s opinions and our precedents. The Supreme
Court has noted, for instance, that “[i]t is enough that the illegality is shown to be a
material cause of the [antitrust] injury; a plaintiff need not exhaust all possible
alternative sources of injury in fulfilling [its] burden of proving compensable
injury.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9
(1969). Relying on Zenith Radio, our Court has also observed that an antitrust
defendant’s unlawful conduct need not be the sole cause of the plaintiffs’ alleged
injuries; to prove a “causal connection” between the defendant’s unlawful conduct
9
Plaintiffs’ economic expert, Dr. John C. Beyer, estimated that SENA and UPM’s prices
were 5.98% higher during the class period than they would have been in the absence of the alleged
conspiracy. Using this estimate, Dr. Beyer calculated further that plaintiffs sustained $102.5 million
in damages during the class period as a result of the alleged conspiracy. Defendants’ expert, Dr.
Peter Bronsteen, contested this analysis.
10
Neither this court nor any other of which we are aware has determined whether
Matsushita’s “tends to exclude” standard applies to the causation element as well as to the
agreement element of a section 1 price-fixing claim. Assuming, without deciding, that it does, we are
satisfied that the causation evidence discussed infra would satisfy that standard.
25
and the plaintiff’s injury, the plaintiff need only “demonstrate that [the defendant’s]
conduct was a substantial or materially contributing factor” in producing that
injury. Litton Sys., Inc. v. AT & T Co., 700 F.2d 785, 823 n.49 (2d Cir. 1983); see
also U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1377 (2d Cir.
1988). We have held further that to prevail on an antitrust claim, a plaintiff must
establish that “the injuries alleged would not have occurred but for [the defendant’s]
antitrust violation,” Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 41 (2d Cir.
1986), adding necessity to the materiality requirement of our antitrust causation
analysis.
Applying these basic concepts here, we consider whether there is sufficient
evidence from which a jury could find that Korhonen and Tynkkynen’s agreement,
if proven, was both a material and but-for cause of the price increases. Our analysis
is enriched and refined by study of causation principles as developed in the tort law
context. See generally Associated Gen. Contractors of Cal., Inc. v. Cal. St. Council
of Carpenters, 459 U.S. 519 (1983) (applying common law principles of causation
derived from tort and contract law to determine whether the plaintiff had
sufficiently alleged an antitrust injury under section 4 of the Clayton Act).
“There is a causal link between an act or activity and an injury when we
conclude on the basis of the available evidence that the recurrence of that act or
activity will increase the chances that the injury will also occur.” Guido Calabresi,
Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi.
L. Rev. 69, 71 (1975). In other words, if an act is deemed wrongful because it is
26
believed significantly to increase the risk of a particular injury, we are entitled—in
the tort context at least—to presume that such an injury, if it occurred, was caused
by the act. See, e.g., Liriano v. Hobart Corp., 170 F.3d 264, 271 (2d Cir. 1999)
(“When a defendant’s negligent act is deemed wrongful precisely because it has a
strong propensity to cause the type of injury that ensued, that very causal tendency
is evidence enough to establish a prima facie case of cause-in-fact.”); see also BCS
Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 758 (7th Cir. 2011) (“Once a
plaintiff presents evidence that he suffered the sort of injury that would be the
expected consequence of the defendant’s wrongful conduct, he has done enough to
withstand summary judgment on the ground of absence of causation.”). Under this
framework, the burden then shifts to the defendant “to bring in evidence tending to
rebut the strong inference, arising from the [injury], that the [act] was in fact a but-
for cause of the plaintiff’s injury.” Liriano, 170 F.3d at 271.
2. The Strength of the Evidence
As applied here, we consider the causal link between an agreement to raise
prices and a subsequent price increase. Price-fixing agreements are “conclusively
presumed to be unreasonable and therefore illegal” precisely because of their
“pernicious effect on competition” and lack of any redeeming virtue, N. Pac. Ry. Co.
v. United States, 356 U.S. 1, 5 (1958)—i.e., because such agreements are so likely to
result in artificially higher prices being charged to consumers without
accomplishing any legitimate business purpose. Therefore, the demonstrable
existence of an agreement between Korhonen and Tynkkynen to follow price
27
increases announced by competitors, if proven, constitutes strong evidence that the
alleged agreement caused at least some element of the subsequent price increases
(e.g., amount or effective date), or, at a minimum, the inability of plaintiffs to
negotiate below the list price. Furthermore, the causal link is presumed to be
particularly strong when, as alleged here, the agreement is between executives at
rival companies, each of whom has final pricing authority. Compare Flat Glass, 385
F.3d at 368-69 (evidence of “upper level executives hav[ing] secret conversations
about price” has more probative weight than “price discussion[s] among low level
sales people”), with Baby Food, 166 F.3d at 125 (“Evidence of sporadic exchanges of
shop talk among field sales representatives who lack pricing authority is
insufficient to survive summary judgment.”).
Defendants contend, and the district court concluded, that even if Korhonen
and Tynkkynen entered into an illegal agreement, the record provides an
inadequate basis on which a jury could find that the agreement caused plaintiffs’
complained-of injuries. They so reason from the record’s reflection that employees
in SENA’s sales and marketing department initiated, recommended, and
implemented pricing decisions during the class period. Defendants maintain that
these lower-level employees—not Korhonen—independently decided that SENA
should follow price increases announced by competitors because doing so made
economic sense and was consistent with SENA’s pricing philosophy to be a market
follower rather than a market leader. Defendants further assert that Korhonen
never altered or vetoed these employees’ pricing recommendations. Accordingly,
28
they urge that the district court properly concluded as a matter of law that even if
Korhonen and Tynkkynen reached a price-fixing agreement, it had no effect on
SENA’s pricing decisions.
Although defendants’ argument has some force, and might well persuade a
jury, we are not convinced that it so conclusively rebuts plaintiffs’ strong evidence
that the alleged agreement was both a material and but-for cause of the price
increases as to permit an award of summary judgment for defendants. Even if
other SENA employees had day-to-day responsibility for pricing strategy and
implementation, it is undisputed that Korhonen, as President of SENA, had the
final say on all pricing decisions. Defendants emphasize that Korhonen never told
other SENA employees about his communications with Tynkkynen. But there was
no reason for him to do so, and indeed there were strong reasons for him to remain
silent on this score. Korhonen’s decisions on pricing were final and, as Korhonen
himself has admitted, he knew, at a minimum, that his communications with
Tynkkynen violated SENA’s internal antitrust policy, which prohibited “sett[ing]
prices or verify[ing] the activities of [SENA’s] competitors by calling competitors,”
Defs.’ Resp. to Pls.’ Local Rule 56(a)(2) Statement ¶ 499. Moreover, one component
of the alleged pricing agreement was holding firm with customers as to price—an
arrangement that Korhonen was in a position to enforce strictly or variably.
In addition, there is scant evidence in the record to support defendants’
assertion that SENA has historically been a market follower rather than a market
leader, and that any agreement was therefore of no effect. Defendants cite only
29
Korhonen’s qualified statement, made in a declaration filed in the course of this
litigation, that “SENA usually did not initiate a price increase on its own, but
rather would respond to (and normally match) price increases initiated by other
paper manufacturers.” Decl. of Kai Korhonen in Supp. of Defs. SEO and SENA’s
Mot. for Summ. J. ¶ 15 (emphasis added). We are aware of no specific information
regarding SENA’s pricing decisions outside of the class period in the record on
summary judgment. Even during the class period, SENA did not uniformly follow
the pricing decisions announced by other publication paper manufacturers: for
example, SENA did not match Mead’s price increase on all products in November
2002 and led price increases in February 2003 for coated grade 4 paper and
supercalendered paper—products that were not covered by IP’s price
announcement. In any event, the mere fact that following price increases
announced by competitors may have been consistent with SENA’s overall pricing
strategy does not immunize SENA from liability if it had an illegal agreement with
UPM to adhere to that strategy. Defendants conceded as much at oral argument
before this Court. Oral Arg. Tr. at 21-22.
Finally, the alleged agreement between Korhonen and Tynkkynen would
have been valuable to SENA because it significantly reduced SENA’s risk: by
coordinating with UPM in advance, SENA could follow competitors’ price increases
secure in the knowledge that UPM, one of its biggest competitors, would not
undercut SENA. Without an advance agreement, SENA ran the risk that UPM
would hold its prices steady, thereby spiriting away SENA’s customers and eating
30
into SENA’s market share. For these reasons, a jury could reasonably conclude that
even if other SENA employees, based on their own independent business
judgments, recommended matching competitors’ price increases, Korhonen would
neither have approved those blanket price increases nor enforced them strictly,
absent assurances from Tynkkynen that UPM would do likewise.11
Defendants also argue that any agreement reached by Korhonen and
Tynkkynen during their phone conversation on February 11, 2003, had no effect on
pricing because, by that point, SENA had already decided to follow IP’s price
increase. But defendants do not dispute that SENA’s decision to follow IP’s price
increase was not actually reached until February 11, the day of the phone call.
Moreover, when the call was made, neither UPM nor SENA had publicly announced
or implemented any price increase. Indeed, SENA sent its price increase
announcement to customers approximately one half-hour after Korhonen and
Tynkkynen’s conversation, and UPM had not finished compiling its list of customer
contacts or mailed out its price announcement letter until the afternoon of
February 11. It therefore would be reasonable to infer that Korhonen required
assurance from Tynkkynen as to UPM’s plans before SENA would go forward as it
did with its price increase and with its efforts to implement that price increase with
11
During SENA’s criminal trial, Korhonen testified that even if UPM had not followed IP’s
price increase in February 2003, SENA would still have increased its prices. Korhonen conceded,
however, that notes taken by an investigator during Korhonen’s earlier interview with the DOJ
reflected that Korhonen told the government that he would not have allowed SENA to raise its prices
had Tynkkynen informed him that UPM would not match IP. Although Korhonen testified that he
did not have a specific recollection of making this statement, he did not deny making it.
31
customers to the fullest extent possible.12 See Flat Glass, 385 F.3d at 369(concluding that exchanges of pricing information that are “tightly linked” with
subsequent parallel price increases permit the inference that “the exchanges of
information had an impact on pricing decisions”).
Based on the foregoing, we conclude that the evidence regarding causation
presents a genuine dispute of material fact: that is, whether Korhonen and
Tynkkynen’s agreement, if proven, was both a material and but-for cause of the
price increases. The question of causation is therefore a jury question.13
E. SEO
Finally, plaintiffs contend that the district court erred in granting summary
judgment to SEO. Plaintiffs have offered evidence that on October 30, 2002,
Tynkkynen met with Bernd Rettig, an SEO executive, and that during that meeting
Tynkkynen and Rettig agreed that UPM would lead a price increase for publication
paper in Europe, and that SEO would match that price increase. Plaintiffs assert
that the success of SEO’s price-fixing efforts in Europe depended on its ability to
12
Although the record is not decisive in this respect, there is evidence that SENA and UPM
each consistently attempted to implement the full amount of the February 2003 price increase when
negotiating contracts with customers, reflecting the “seriously implement” aspect of the alleged
agreement. For instance, Tynkkynen refused to allow UPM salespeople to enter into contracts with
customers at prices below the full price increase amount, even when customers threatened to take
their business elsewhere. There is also some evidence that SENA stood firm on the price increase
despite customer resistance.
13
This Court has on at least one occasion mentioned other factors that may inform a court’s
decision regarding disputed causation issues at summary judgment, see Williams v. Utica Coll. of
Syracuse Univ., 453 F.3d 112, 121-22 (2d Cir. 2006); see also Williams v. KFC Nat’l Mgmt. Co., 391
F.3d 411, 422-25 (2d Cir. 2004) (Calabresi, J., concurring) (considering strength of evidence, relative
knowledge of parties, and “how strongly we feel about making an error in one direction as against the
other”). Such considerations have not been addressed by the parties, and we therefore do not address
them further, although it appears that these factors favor plaintiffs here.
32
ensure that SENA and its rivals fixed the price of publication paper in the United
States. Plaintiffs have failed, however, to offer any concrete evidence in support of
their theory. For that reason, and because the record is devoid of evidence that
SEO had any direct involvement in decisions regarding the marketing, sale, or
pricing of publication paper in the United States, we affirm the district court’s grant
of summary judgment to SEO.
III. CONCLUSION
For the foregoing reasons, we conclude that plaintiffs’ Sherman Act section 1
claim against SENA is sufficiently supported to require a trial, but their claim
against SEO is not. Accordingly, we VACATE the district court’s judgment in part,
AFFIRM it in part, and REMAND the case for further proceedings consistent with
this opinion.
33