Stanislaus Food Products Co. v. Uss-Posco Industries , 803 F.3d 1084 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANISLAUS FOOD PRODUCTS No. 13-15475
COMPANY, a California corporation,
Plaintiff-Appellant, D.C. No.
1:09-cv-00560-
v. LJO-BAM
USS-POSCO INDUSTRIES, a
California partnership; PITCAL, INC., OPINION
a Delaware corporation; POSCO-
CALIFORNIA CORPORATION, a
Delaware corporation; UNITED
STATES STEEL CORPORATION, a
Delaware corporation; POSCO
AMERICAN STEEL CORPORATION, a
Delaware corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
March 9, 2015—San Francisco, California
Filed October 13, 2015
Before: M. Margaret McKeown, Mary H. Murguia,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge McKeown
2 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
SUMMARY*
Antitrust
Affirming the district court’s summary judgment on a
claim under Section 1 of the Sherman Antitrust Act, the panel
held that Stanislaus Food Products Co. failed to establish
specific facts supporting a market allocation conspiracy
among the nation’s leading tin manufacturers.
Stanislaus alleged that it paid artificially high prices as the
result of the tin manufacturers’ agreement to cede the tin mill
products market in the western United States to a single
company, USS-POSCO Industries. The panel concluded that
alleged conspirator U.S. Steel Corp. did not have a plausible
economic motive for the alleged agreement, and Stanislaus
failed to present specific evidence that tended to exclude the
possibility that the alleged conspirators acted independently.
COUNSEL
William Berstein, Eric B. Fastiff (argued), Dean M. Harvey,
and Marc A. Pilotin, Lieff, Cabraser, Heimann & Bernstain,
LLP, San Francisco, California, for Plaintiff-Appellant.
James C. Martin (argued), P. Gavin Eastgate, and Michelle A.
Mantine, Reed Smith, Pittsburgh, Pennsylvania; Daniel I.
Booker and Alexander Y. Thomas, Reed Smith LLP,
Washington, D.C.; J. Michael Jarboe, United States Steel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 3
Corporation, Pittsburgh, Pennsylvania; Allan Steyer, D. Scott
Macrae, and Gabriel D. Zeldin, Steyer Lowenthal
Boodrookas Alvarez & Smith, San Francisco, California; Rex
S. Heinke and Reginald D. Steer, Akin Gump Strauss Hauer
& Feld LLP, San Francisco, California; and Steven M. Pesner
and Nicholas Adams, Akin Gump Strauss Hauer & Feld LLP,
New York, New York, for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
This appeal, which centers on tin mill products used to
make the tin cans commonly used to package food, teaches
that there’s no substitute for concrete evidence. Stanislaus
Food Products Company claims that it pays artificially high
prices as the result of an illegal market allocation agreement
among the nation’s leading tin manufacturers who agreed to
cede the tin mill products market in the western United States
to a single company, USS-POSCO Industries (“UPI”).
Although echoes of price-fixing permeate the appeal, only
a market allocation theory is at issue. But the market-
allocation claim relies on a shaky economic theory, as the
purported arrangement would not be rational in light of the
circumstances. Even after extensive discovery, the evidence
does not tend to exclude the possibility that the alleged
conspirators were acting independently. We conclude that
Stanislaus has failed to establish specific facts supporting a
market allocation conspiracy and affirm summary judgment
for the tin manufacturers.
4 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
BACKGROUND
Stanislaus, a tomato cannery located in Modesto,
California, purchases its tin cans exclusively from Silgan, one
of three major American tin can manufacturers. These
purchases occur under long-term contract.
Silgan, in turn, purchases tin mill products from multiple
suppliers, including United States Steel Corporation
(“U.S. Steel”) and UPI. U.S. Steel manufactures and sells tin
mill products as well as hot band steel, which is a component
of tin mill products. U.S. Steel has nationwide supply
contracts with Silgan and the other major tin can
manufacturers. UPI is a joint venture equally owned by U.S.
Steel and POSCO America Steel Corporation (“POSCO
America”).1 As part of the joint venture, U.S. Steel and
POSCO America supply UPI with hot band steel. UPI’s tin
mill product prices are set by a six-person management team
that includes three appointees each from U.S. Steel and
POSCO America.
Stanislaus initiated suit in California state court, where it
first alleged price fixing claims against UPI, Silgan, and other
unnamed conspirators in violation of state and federal
antitrust law. The case features a complicated procedural
history that we need not recount in full here. Stanislaus’s
third amended federal complaint, which excludes Silgan as a
1
POSCO America and POSCO-California Corporation (collectively,
“POSCO”) are subsidiaries of Pohang Iron & Steel Co., Ltd.,
headquartered in South Korea. POSCO has not made tin mill products
since 2000 and has never sold tin mill products in the United States.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 5
defendant,2 asserts that U.S. Steel agreed to exit the market
and eliminate certain discounts to Silgan to allow UPI to
charge monopolistic prices for tin mill products. Stanislaus
described three 2006 UPI management committee meetings
as the setting for the agreement. The district court granted in
part and denied in part a motion to dismiss the third amended
complaint. Dismissing a separate conspiracy to monopolize
claim, the court left only the market allocation conspiracy
claim to go forward. The “linchpin” of the market allocation
agreement, according to the district court, would be proof of
U.S. Steel’s exit of the market.
After extensive discovery, the defendants moved for
summary judgment. The briefing prompted the district court
to observe that “the parties ha[d] sharply different views on
what this case is about.” Stanislaus pursued two distinct
antitrust theories. The first was an “exit theory” of the
conspiracy, which turned on U.S. Steel’s exit from the market
for tin mill products in the western United States—an
approach that mapped to the surviving complaint allegations.
Stanislaus’s second theory was a new “partial allocation
theory,” not raised in the complaint, under which Stanislaus
claimed that U.S. Steel did not aggressively compete on price.
Under this theory, “[b]ecause UPI was left unchallenged, U.S.
Steel effectively ‘allocated’ to UPI a dominant, but not
complete, position in the market.”
2
The defendants earlier challenged Stanislaus’s standing as an indirect
purchaser. See Stanislaus Food Prods. Co. v. USS-POSCO Indus., 782 F.
Supp. 2d 1059 (E.D. Cal. 2011). The district court’s resolution of that
issue in Stanislaus’s favor is not challenged on appeal. The remaining
defendants are UPI, POSCO, Pitcal, Inc., and U.S. Steel.
6 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
Evaluating both theories, the district court granted the
defendants’ motion for summary judgment. The court began
by considering whether there was a plausible economic
motive for either alleged agreement. The court concluded
that either type of conspiracy would be rational for UPI and
POSCO, which both stood to gain from any supra-
competitive pricing charged by UPI, but irrational for U.S.
Steel, which competes with UPI by selling tin mill products
through national supply contracts under which its customers
elect the delivery destination. U.S. Steel thus “lacks the
ability to unilaterally price discriminate against the western
United States market”; this market structure did not make the
prospect of forfeiting competitiveness on a national level
rational for U.S. Steel, even taking into account that U.S.
Steel’s 50% ownership in UPI meant that it would benefit to
some extent from UPI’s profits. Against this backdrop, and
“proceed[ing] with caution,” the court concluded that
Stanislaus’s circumstantial evidence was insufficient to
support an inference of conspiracy.
ANALYSIS
Section 1 of the Sherman Antitrust Act renders illegal
“[e]very contract, combination . . . , or conspiracy, in restraint
of trade or commerce.” 15 U.S.C. § 1. This case involves an
alleged illegal agreement to allocate territory to UPI in order
to reduce competition in the market for tin mill products. See
Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 (1990) (per
curiam) (citing United States v. Topco Assocs., Inc., 405 U.S.
596 (1972)).
Before considering the evidence, we review the basic
principles of summary judgment that guide this appeal.
Summary judgment is appropriate “if the movant shows that
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 7
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We view the facts and draw factual inferences
in favor of Stanislaus, the non-moving party. T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631
(9th Cir. 1987). Still, to survive summary judgment,
Stanislaus must establish a “genuine” factual dispute, which
involves “more than . . . some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); Fed. R. Civ. P. 56(a).
An agreement to restrain trade may be established by
direct or by circumstantial evidence. See 7-Up Bottling Co.
v. Archer Daniels Midland Co., Inc. (In re Citric Acid Litig.),
191 F.3d 1090, 1093 (9th Cir. 1999). Stanislaus relies upon
circumstantial evidence to establish such an agreement here.
In Matsushita, the seminal case applying these principles
to antitrust claims, the Supreme Court explained that to
survive summary judgment on the basis of circumstantial
evidence, “a plaintiff seeking damages for a violation of § 1
must present evidence ‘that tends to exclude the possibility’
that the alleged conspirators acted independently.” 475 U.S.
at 588 (quoting Monsanto Co. v. Spray-Rite Serv. Corp.,
465 U.S. 752, 764 (1984)). In other words, to establish the
requisite factual dispute, Stanislaus “must show that the
inference of conspiracy is reasonable in light of the
competing inferences of independent action or collusive
action that could not have harmed [Stanislaus].” Id.
Matsushita underscores that in making this determination,
context is key. As the Supreme Court put it, “if the factual
context renders [Stanislaus’s] claim implausible—if the claim
is one that simply makes no economic sense—[Stanislaus]
8 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
must come forward with more persuasive evidence to support
[its] claim than would otherwise be necessary.” Id. at 587.
As we proceed, we are mindful that “courts should not
permit factfinders to infer conspiracies when such inferences
are implausible.” Id. at 593 (citing Monsanto, 465 U.S. at
762–64). The Supreme Court has observed that “mistaken
inferences” are “especially costly” in cases that bear the risk
of “chill[ing] the very conduct the antitrust laws are designed
to protect.” Id. at 594 (citing Monsanto, 465 U.S. at 763–64).
Because this case hinges on circumstantial evidence, our
inquiry into whether Stanislaus’s showing is sufficient to
establish an agreement proceeds in two steps:
First, the defendant can rebut an allegation of
conspiracy by showing a plausible and
justifiable reason for its conduct that is
consistent with proper business practice. The
burden then shifts back to the plaintiff to
provide specific evidence tending to show that
the defendant was not engaging in permissible
competitive behavior.
In re Citric Acid Litig., 191 F.3d at 1094 (citations omitted).
We begin by assessing the plausibility of Stanislaus’s
claims in light of their factual context. See Matsushita,
475 U.S. at 588 (considering “the nature of the alleged
conspiracy and the practical obstacles to its
implementation”). In doing so, we cannot ignore the
Supreme Court’s prohibition on “permit[ting] factfinders to
infer conspiracies when such inferences are implausible,” id.
at 593, lest we risk the “pernicious danger” of “deter[ring]
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 9
pro-competitive conduct,” In re Citric Acid Litig., 191 F.3d
at 1094. Implausible claims require a “more persuasive”
showing “that tends to exclude the possibility” of independent
action. Matsushita, 475 U.S. at 587–88. With these
principles in mind, we turn to whether Stanislaus can
establish its claim.
I. RATIONALITY AND JUSTIFICATIONS FOR THE
CHALLENGED ACTIONS
In light of the shifting allegations, our first step is to
identify the alleged conspirators and the exact subject matter
of the alleged conspiracy. Stanislaus alleges that in 2006,
UPI, POSCO, and U.S. Steel agreed to allocate the western
United States market for tin mill products to UPI, enabling
UPI to dominate the market and raise its prices.
As the district court noted, Stanislaus’s exact theory of the
alleged agreement has been in flux. The operative complaint
alleges that “[a]fter 2006, pursuant to the Market Allocation
Agreement, U.S. Steel exited the Relevant Market, and UPI
faced no meaningful competition whatsoever.” It also posits
that U.S. Steel fully exited the market for the western United
States and refused to enter into new long-term contracts with
its largest customers in the region. By the time the parties
briefed summary judgment, Stanislaus had shifted its theory
to focus on U.S. Steel’s failure to price competitively against
UPI. This reframing came about because the evidence
showed that U.S. Steel had never exited the market. In fact,
U.S. Steel continued selling to Silgan (including for west
coast delivery). Absent evidence of U.S. Steel’s exit from the
market, we focus our analysis on whether Stanislaus can
show this second type of agreement.
10 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
We first analyze whether the alleged conspirators would
have had a rational motivation to conspire.3 For UPI, the
alleged agreement would certainly have made sense: it stood
to gain by being able to charge higher prices in the absence of
meaningful competition in the region. POSCO, a joint owner
of UPI that does not sell tin mill products in the United
States, similarly stood to gain by reaping the benefit of those
increased prices. So far, so good for Stanislaus. But these
incentives represent only one side of the alleged conspiracy.
The key to the alleged agreement—and to Stanislaus’s
case—is U.S. Steel’s agreement to stop competing in that
region. U.S. Steel occupies quite a different position than do
the other alleged conspirators because it also manufactures
and sells tin mill products throughout the United States.
Critical to the context of this case, U.S. Steel has nationwide
supply contracts with all of the major tin can manufacturers.
These contracts and their timing are independent of any of the
conspiracy claims. Under these contracts, U.S. Steel sells tin
mill products F.O.B. U.S. Steel’s mill, which means that the
customer selects where U.S. Steel is to ship the products and
pays for shipping costs to the chosen destination.
3
In light of Matsushita’s mandate to probe the plausibility and
economic underpinnings of a claim, Stanislaus’s argument that the district
court erred by assessing the rationality of the alleged conspiracy is
unpersuasive. The factual context of a claim and the economic plausibility
of a defendant’s motivation to conspire play an explicit, central role in the
standards set forth in Matsushita. It is an uncontroversial tenet of antitrust
law that “[t]he clarity and intensity of a motivation may bear on the
inferences to be drawn from ambiguous evidence of coordinated
behavior.” Phillip E. Areeda (late) & Herbert Hovencamp, Antitrust Law
¶ 1412f (4th ed. Supp. 2015). Of course, our review is de novo but we
conclude that the district court did not violate Federal Rule of Civil
Procedure 56(f)(2) by factoring these concerns into its analysis. Indeed,
it was bound to do so by Matsushita.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 11
The structure of U.S. Steel’s contracts means that the
price and other terms are negotiated without U.S. Steel
knowing whether a customer will request items be sent, say,
to California or to New York. The geographic neutrality is a
significant practical obstacle to the viability of the alleged
allocation agreement: in order not to compete on price in the
western United States, U.S. Steel would need to stop
competing on price nationwide or refuse customers. Both
options risk losses to U.S. Steel’s bottom line and make little
economic sense.
A scheme like Stanislaus alleges would not be rational
unless U.S. Steel had little competition outside of the western
United States or the potential payoff through ownership of
UPI was likely to be significant. But other manufacturers
compete in this market, including Arcelor-Mittal-Dofasco,
Tata Steel (formerly, Corus), Rasselstein, Dongbu, Bao, JFE,
and R.G. Steel (formerly, Severstal). In fact, most of these
manufacturers have at some time after 2006 shipped products
to Silgan’s facilities in the western United States.
Stanislaus argues that it is “self-evident” that an alleged
conspiracy was in U.S. Steel’s economic interest because
U.S. Steel did not in fact take market share from UPI, despite
U.S. Steel’s prices being lower. Even assuming Stanislaus’s
market analysis is correct, this theory boils down to
retrospective guesswork; it says nothing of the economic
rationality of the agreement in the first place. Additionally,
the fact that U.S. Steel undercut UPI on price is consistent
with competitive behavior. See Matsushita, 475 U.S. at 594
(“[C]utting prices in order to increase business often is the
very essence of competition.”).
12 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
Silgan’s position is a key aspect of Stanislaus’s claim.
UPI offers testimony that it was able to secure Silgan’s
agreement in 2008 to a long-term contract that raised Silgan’s
price for tin mill products because Silgan, a knowledgeable
player in the market, wanted to lock in lower long-term
prices. The price agreed to, while higher than previous
prices, was still lower than those of other suppliers, with the
exception only of U.S. Steel. Silgan wanted to avoid what its
executives termed the “hockey stick” impact4 of a dramatic
price increase that it expected would ensue if Silgan waited
to renegotiate in 2010, when the prior contract expired.
As for U.S. Steel, the prices it charged Silgan were lower
than the prices Silgan agreed to pay UPI. And the terms of
the U.S. Steel–Silgan agreement were set before the alleged
conspiracy began. A plausible justification for U.S. Steel’s
pricing strategy to Silgan is obvious: U.S. Steel was
competing on price. The price increase by U.S. Steel to one
of Silgan’s competitors that Stanislaus relies on here not only
did not involve Stanislaus’s supplier, it also still left U.S.
Steel’s prices to that competitor lower than UPI’s. The same
competitive justification for pricing thus applies, with the
increase in price explained by UPI’s price leadership. See
Areeda & Hovencamp ¶ 1429b (discussing how oligopolistic
rationality can provide for price increases through price
leadership).
Stanislaus argues that the fact that POSCO did not enter
the western U.S. market is evidence of a conspiracy to
4
This moniker refers to the fact that a graph tracking the prices would
resemble the shape of a hockey stick, with a “sharp upswing at the end”
of the term of the prior contract representing a dramatic price increase.
See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 383–84 (9th Cir. 2010).
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 13
allocate that market to UPI. But the fact that POSCO did not
enter a new market just to compete with its own joint venture
is perfectly justifiable, as “[f]irms do not expand without
limit and none of them enters every market that an outside
observer might regard as profitable, or even a small portion
of such markets.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
569 (2007) (alteration in original) (quoting Areeda &
Hovenkamp ¶ 307d, at 155 (Supp. 2006)).
The potential benefit of this scheme for U.S. Steel is just
not apparent. To come out ahead, U.S. Steel would have had
to gain more than it would lose from abandoning a
competitive position in the western market for tin mill
products. This prospect is speculative at best. Even factoring
in the potential of charging UPI a higher price for hot band
steel and the potential profits to be derived from U.S. Steel’s
50% ownership in UPI, we note that U.S. Steel supplies just
half of UPI’s hot band steel. These factual circumstances do
not alter our conclusion that U.S. Steel’s participation in the
alleged conspiracy is economically implausible.
The burden shifts to Stanislaus to establish its claim
through “specific evidence tending to show that the [co-
conspirators were] not engaging in permissible competitive
behavior.” In re Citric Acid Litig., 191 F.3d at 1094.
II. EVIDENCE OF CONSPIRACY
Stanislaus identifies several categories of evidence that it
argues “tend[] to show” the market allocation agreement.
While some of the evidence may have a negative tinge, we
conclude that the evidence does not, taken together, tend to
exclude the possibility of permissible independent behavior.
Matsushita, 475 U.S. at 588. The notion, for example, that
14 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
U.S. Steel did not compete hard enough or aggressively
enough for Stanislaus’s taste is difficult to assess or quantify.
In any event, that characterization proffered by Stanislaus is
not the applicable standard. The question we should instead
ask is whether there is sufficient specific evidence of a
market allocation agreement—the crux of Stanislaus’s
remaining antitrust claim. Considered against the backdrop
of the market for tin mill products during this period,
Stanislaus has failed to provide sufficient “specific evidence”
to support a finding of conspiracy in light of the lack of
economic rationality of the purported agreement. In re Citric
Acid Litig., 191 F.3d at 1094.
A. Parallel pricing and pricing patterns
When UPI raised its prices, U.S. Steel also raised its
prices to some customers. Stanislaus asserts that this allowed
UPI to maintain artificially high prices in an agreed-upon
absence of competition. Of course, “[p]arallel pricing is a
relevant factor to be considered along with the evidence as a
whole; if there are sufficient other ‘plus’ factors, an inference
of conspiracy can be reasonable.” Id. at 1102 (citation
omitted).
Key to Stanislaus’s theory is that this pricing behavior
was contrary to U.S. Steel’s self-interest. Specifically,
Stanislaus argues that U.S. Steel’s decision to raise its price
to one of Silgan’s competitors despite having lower hot band
steel costs than in the previous year was not in U.S. Steel’s
economic self-interest. See In re Text Messaging Antitrust
Litig., 630 F.3d 622, 628 (7th Cir. 2010) (noting that falling
costs increase a seller’s profit margin and motivate the seller
to reduce its price). This argument, which pinpoints a single
year, fails to account for pricing patterns over multiple years.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 15
To get the full picture, we must juxtapose the price of tin
against the cost involved in making that tin. In particular, the
cost of hot band steel—a significant factor in tin
manufacturing—only dropped in 2009 after having jumped,
sharply, in 2008. The cost of making tin was therefore in
flux, creating uncertainty for manufacturers. U.S. Steel may
have raised tin prices in 2009 to make up for losses caused by
skyrocketing material costs a year earlier—or as a hedge
against future price increases in the market for component
parts.
Of course, Stanislaus’s critique of U.S. Steel’s pricing
behavior is also undercut by the fact that its prices were still
lower than those of UPI. This “price point” had potential,
even if unrealized, to attract customers away from UPI. This
behavior is not credibly viewed as against U.S. Steel’s
self-interest or as tending to exclude independent behavior.5
B. Information exchanges and other communications
To support an inference of conspiracy, Stanislaus offers
evidence of information exchanges between U.S. Steel and
UPI. Interfirm communications, particularly among high-
level executives, are a “plus factor” that can bolster the
inference of conspiracy. See In re Publ’n Paper Antitrust
5
Stanislaus also complains that these pricing patterns do not reflect the
historical spread between the cost of hot band steel and the price of tin
mill products, and argues that the patterns are inconsistent with declining
demand and excess manufacturing capacity. Market conditions during a
period of alleged collusion can be a plus factor that support an inference
of agreement. See, e.g., In re Publ’n Paper Antitrust Litig., 690 F.3d 51,
65 (2d Cir. 2012) (excess capacity). But Stanislaus’s arguments on this
point are spare and devoid of citations to the record.
16 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
Litig., 690 F.3d 51, 62 (2d Cir. 2012); In re Flat Glass
Antitrust Litig., 385 F.3d 350, 368–69 (3d Cir. 2004).
Executives at U.S. Steel were aware of the contract
between UPI and Silgan. In 2008, the president of UPI
emailed U.S. Steel executives an overview of the price and
other terms associated with the new contract.
The alleged conspirators argue that these communications
are irrelevant without evidence that they affected U.S. Steel’s
price to Silgan in 2009. See In re Flat Glass Antitrust Litig.,
385 F.3d at 369; In re Baby Food Antitrust Litig., 166 F.3d
112, 125 (3d Cir. 1999) (requiring “evidence that the
exchanges of information had an impact on pricing
decisions”). To show the lack of such an impact, the alleged
conspirators point to a provision in the 2005 agreement
between U.S. Steel and Silgan that limits subsequent price
increases for tin mill products to 2% in any given year.
Exchanges of information like this call to mind the
requirement that Stanislaus “must show more than a
conspiracy in violation of the antitrust laws; [it] must show an
injury to [it] resulting from the illegal conduct.” Matsushita,
475 U.S. at 586. Absent deviation from the contracted price
between U.S. Steel and Silgan, we agree that any negative
inference is more difficult for Stanislaus to show and that the
interfirm communications are of limited use. U.S. Steel’s
knowledge of the new contract between its joint venture and
Silgan has little legal significance if it did not prompt action
on U.S. Steel’s part.
Even if the U.S. Steel–Silgan contract was not affected,
Stanislaus argues that this information prompted U.S. Steel to
change the pricing for Silgan’s competitors. Despite this
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 17
relatively attenuated chain of cause-and-effect, we
nonetheless take a deeper look at this allegation.
In particular, Stanislaus asks that we take note of internal
communications that prove that UPI “made pricing decisions
based on its understanding of [U.S. Steel’s] agreement not to
compete on price” in the region. In August 2008, the
president of UPI wrote, “There is a lot going on regarding
2009 industry pricing for tin . . . . Right now our position on
2009 West Coast pricing for everyone other than Silgan is
major increases consistent with Arcelor Mittal’s
announcement and our understanding of what U.S. Steel is
doing, plus a major additive for freight to the West Coast.”
UPI internally predicted that “[h]igh [p]rices and
[t]ransportation [c]osts [w]ill [k]eep [e]astern [s]teel in the
[e]ast.” These communications arose in the context of
observations about the difficult state of the tin market in the
previous year due to skyrocketing hot band steel prices,
increased fuel and freight costs, inexpensive imports, and
fluctuations in demand.
None of this evidence bolsters the inference that
Stanislaus would have us draw from these communications.
Considered against the backdrop of market conditions in the
industry, it is ambiguous what the president of UPI meant
when he wrote of “our understanding of what U.S. Steel is
doing.” Stanislaus would have a jury infer that “what U.S.
Steel [was] doing” was deliberately failing to price
competitively, as agreed. It is just as plausible, if not more
so, that the phrase referred to what U.S. Steel was doing in
the face of the same challenging conditions in the tin market
at the time. Although we do not totally discount the evidence
as irrelevant, the evidence is insufficient to support the
existence of a market allocation conspiracy.
18 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
C. Spot market sale
Stanislaus also points to evidence about a spot market
sale, a circumstance in which buyers individually negotiate
one-time sales. But the evidence offered here of a single spot
market sale from U.S. Steel to one of Silgan’s
competitors—thus not involving Stanislaus’s supplier at
all—adds too little to qualify as “specific” evidence in
support of a conspiracy. In 2008, U.S. Steel sold 1,000 tons
of tin mill products to one of Silgan’s competitors on the spot
market. The customer directed the tin mill products to be
shipped to the western United States. The sale price was
higher than the national contract price between U.S. Steel and
that same customer; U.S. Steel would not negotiate despite
the customer’s complaints about the high price. Although
U.S. Steel’s one-time price does not appear to have been as
competitive as its prices set by long-term contract, what is
missing is a link to competitive pricing vis-a-vis UPI. The
record does nothing to place the sale in context—for example,
it does not reflect how frequently these types of sales
occurred or whether high spot market prices somehow
displaced its other sales. We thus treat the spot sale as
somewhat of an outlier.
Several U.S. Steel executives communicated internally
about this sale. Upon learning of the high price, U.S. Steel’s
CEO inquired, “Is this because UPI is full?” Another U.S.
Steel executive answered, “I am told this is NOT a supply
issue—but a price issue.” In another exchange, one U.S.
Steel executive commented, “not sure this is high enough but
OK now,” to which another wrote, “Greed is a deadly sin.”
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 19
The meaning of these emails is ambiguous at best, but it
does not bear on the key question of whether U.S. Steel
agreed to or did stop competing with UPI.
Perhaps anticipating that nothing concrete can be inferred
from the emails, Stanislaus characterizes the exchanges as
exhibiting an “incongruous[ly] high level of senior
management attention” to what it calls a “de minimis order”
when compared to U.S. Steel’s total annual production of 1.2
million tons. This subjective gloss on a single aspect of the
evidence does not implicate the claimed conspiracy or its
impact on pricing to Stanislaus.
D. Expert report
Finally, Stanislaus argues that the district court
improperly ignored its expert report. The district court
reviewed “the two-page portion of Dr. Rausser’s report that
Plaintiff direct[ed] the Court’s attention to,” but went on to
note that it “is nothing more than a broad overview of
Plaintiff’s argument.” The district court declined to mine the
82-page report for “substantive opinions that are not cited in
its briefing,” citing Carmen v. San Francisco Sch. Dist.,
237 F.3d 1026, 1031 (9th Cir. 2001), for the proposition that
courts “need not examine the entire file for evidence
establishing a genuine issue of fact, where the evidence is not
set forth . . . with adequate references so that it could
conveniently be found.”
The explanation that Stanislaus now offers linking the
summary conclusions to various components of the expert
report is too little, too late. Summary judgment proceedings
focus on whether there are genuine issues of fact. Specific
citations, not bulk references, are essential to pinpoint key
20 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.
facts and factual disputes. The district court was not required
to put the puzzle together from a boxful of facts, and, in line
with Carmen, may permissibly decide the motion without
mining the entire document for more substantiation.
Nonetheless, on de novo review, and despite the breezy
reference, we give Stanislaus the benefit of a full review. In
doing so, we are sympathetic to the district court’s
predicament. Not only is the report 82 pages, but the
evidentiary references are found, without much detail, in 285
footnotes, a listing of more than 180 sets of documents,
multiple websites, and an array of other evidence.
Although the expert report is well crafted and provides
useful background on the optics of the industry, it also
contains extensive discussion related to price-fixing claims
that are not at issue in the appeal. Even Stanislaus’s belated
explanation that the expert summary relates to two broad
sections of the report does little to identify factual issues or
cite to specific evidence supporting Stanislaus’s argument.
This circumstance highlights why the appellate rules require
specific citations to the record. Fed. R. App. P. 28(a)(8)(A),
28(e); 9th Cir. R. 28-2.8. However, consideration of the
evidence (which we dug out ourselves) dealing with market
allocation does not change our analysis. The broad
conclusions and cited evidence essentially mirror Stanislaus’s
arguments elsewhere and nothing in the market analysis
rescues Stanislaus’s case.6
6
For example, the expert report does not contain any analysis of profit
margins showing that USS would actually be better off with 50% of UPI’s
profits in the western U.S. than it would be competing for its own business
in the western U.S. During oral argument, when asked whether there was
any “mathematical analysis of the profit margins” in the record “that
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 21
CONCLUSION
In sum, Stanislaus failed to meet its burden to show
“specific evidence” of a market allocation agreement.
AFFIRMED.
shows [U.S. Steel is] actually better off with the 50% [of UPI’s profits in
the western U.S.] than the 100% [of what] they might get by competing,”
counsel conceded there was no “comparison.” Oral Argument at
7:50–8:37, Stanislaus v. USS-POSCO, (2015) (No. 13-15475)
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007321.