United States District Court for the District of Columbia
March 9, 2004.
IN RE: VITAMINS ANTITRUST LITIGATION, This Document Relates To: ALL ACTIONS
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Re: Defendants' Motions for Summary Judgment
on the Issue of an "All-Vitamins Conspiracy"
Pending before the Court are five defendants' motions*fn1
summary judgment seeking judgment on the issue of the scope of the
conspiracy pursuant to Fed.R.Civ.P. 56. Upon careful consideration of
the parties' briefs, arguments presented, and the entire record herein,
Court grants for certain Defendants and denies for one Defendant
motions for summary judgment on Plaintiffs' "all-vitamins conspiracy"
This case stands at the heels of one of the largest criminal antitrust
investigations ever undertaken by the United States Department of
Justice. To date, the Antitrust division of the Department of Justice has
prosecuted 30 cases and gathered well over $875 million in criminal fines
relating to the international vitamins cartel.*fn2 This vitamins cartel
enacted one of the most elaborate and wide-spread conspiracies ever
prosecuted by the United States Department of Justice.*fn3
The case before this Court is equally formidable. As of a few months
ago, the consolidated action before the Court involved 55 separate
multiparty lawsuits from 32 different federal courts. The enormity and
complexity of this case can be seen through the fact that over 1,000
opinions and rulings have been issued by the Court in this case.
Furthermore, well over 100 law firms participated in the preparation of
over 10,000 separate filings that have been lodged in this matter to
date. This opinion addresses five of the motions that have been filed in
Plaintiffs allege that Defendants, along with their co-conspirators,
conspired to artificially inflate the price of certain vitamins and
vitamin products, allocate shares of the vitamin market,
predetermine sales volume in the vitamin industry, eliminate
competition from non-co-conspirators, limit supply, and allocate
specific customers among themselves and their co-conspirators in the
following vitamin markets: Vitamin A, Vitamin B1 (Thiamine), Vitamin B2
(Ribloflavin), Vitamin B3 (Niacin), Vitamin B4 (Choline Chloride),
Vitamin B5 (CalPan), Vitamin B6 (Pyridoxine), Vitamin B9 (Folic Acid),
Vitamin B12, Vitamin C, Vitamin D, Vitamin E, Vitamin H (Biotin),
Astaxanthin, Beta Carotene, Canthaxonthin, Apocarotenal, and vitamin
premix, in violation of Section 1 of the Sherman Act. See, e.g., Second
Am. Compl. for Antitrust Violations, Blue Seal Feeds, Inc., et al., v.
BASF A.G., et al., ¶¶ 1, 121-135. This alleged conspiracy between the
sellers of the various vitamins listed above is referred to as the
all-vitamins conspiracy. The issue before the Court is the viability of
Plaintiffs' alleged all-vitamins conspiracy.
As mentioned above, the procedural history in this case is quite
extensive, and a brief review of the pertinent parties and pleadings
affecting this morion is warrented. On or shortly before August 6, 2002,
various Defendants filed forty-nine (49) motions with the court, while
various Plaintiffs filed two dispositive motions. Of the forty-nine
dispositive defense motions, twenty-two related to "scope of the
conspiracy" defenses. Of those twenty-two motions, sixteen of them
specifically addressed Plaintiffs' alleged all-vitamins conspiracy.
On November 21, 2002, the Court heard oral argument on the all-vitamins
conspiracy motions. Since that time, many individual cases have been
resolved. The all-vitamins conspiracy motions that remain pending are
#11, #13, #14, #16, and #17 (as numbered in the chart submitted by
Dickstein, Shapiro, Morin & Oshinsky, LLP under cover of its August
14, 2002 letter to the Court). These motions were filed by the following
Bioproducts, DuCoa and DCV, DuPont, Chinook, and UCB.
Two separate moving papers have been filed on behalf of each Defendant:
first, Defendants collectively filed Certain Defendants' Joint Memorandum
of Law in Support of Summary Judgment on Plaintiffs' All-Vitamins
Conspiracy Claim ("Defs.' Mem."); second, each Defendant filed an
individual motion and reply brief on their own behalf.*fn4 Plaintiffs
submitted two primary documents in opposition to Defendants' motions for
summary judgment: first, Certain Plaintiffs' Joint Opposition to Certain
Defendants' Joint Memorandum of Law in Support of Summary Judgment on
Plaintiffs' All-Vitamins Conspiracy Claims (the "PJO"); second,
Plaintiffs' Joint Counterstatement of Facts in Opposition to Defendants'
Motions for Summary Judgment Regarding the Fact and Scope of the
Conspiracy, Fraudulent Concealment, and Subsidiary Liability (the "PJC").
Plaintiffs also filed individual opposition papers against specific
Two groups of cases remain. Some cases against Defendants will be
remanded to their original jurisdictions, while others will remain in
this Court for trial.*fn6 The following is a breakdown of the remaining
cases pending against each Defendant:
Bioproducts: (1) Class action plaintiffs'*fn7
cases to tried in Minnesota*fn8
(2) Direct action plaintiffs'*fn9
cases to be remanded
DuCoa: (1) Direct action plaintiffs' cases to be
DuPont: (1) Direct action plaintiffs' cases to be
Chinook: (1) Class action plaintiffs' cases to be
tried in Minnasota
(2) Direct action plaintiffs' cases to be
UCB: (1) Hill's Pet Nutrition cases to be remanded
All parties agree that the instant motion is to be decided before these
cases are remanded to their original filing jurisdictions.
1. The Defendants
There are three UCB defendants: UCB, S.A.; UCB, Inc.; and UCB Chemicals
Corporation. UCB, S.A. is a Belgium-based company that produces and sells
prescription pharmaceuticals, high performance film and packaging
materials, and specialty chemical
products. The Chemical Sector of UCB, S.A., which is involved in
the production and sale of specialty chemical products, manufactures and
sells choline chloride. UCB, Inc. is a subsidiary of UCB, S.A. located in
the United States, and UCB, Inc. is a holding company that offers support
services to its subsidiaries. UCB, Inc. never manufactured or sold
choline chloride. UCB Chemicals Corporation is a subsidiary of UCB, Inc.
and is also located in the United States. UCB Chemicals Corporation
manufactures and markets specialty chemicals. UCB Chemicals Corporation
did not manufacture choline chloride during any of the conspiracy periods
but did sell choline from 1999-2001. UCB Mem. in Support Mot. Summ. J.
("UCB Mem.") at 3-5.
UCB asserts that it did not manufacture or sell any vitamins other than
choline chloride during the alleged conspiracy period, and did not
participate in the markets for any of the non-choline vitamins during
the conspiracy period. Id.
There is one DuPont defendant: E.I. DuPont De Nemours and Company. E.I.
DuPont De Nemours and Company is a world-wide "science company" that
"deliver[s] science-based solutions in markets such as food and
nutrition, health care, apparel, home and construction, electronics and
transportation." DuPont Statement of Undisputed Material Facts In Supp.
Mot. For Partial Summ. J. On All-Vitamins Conspiracy ¶ 2. DuPont is
headquartered in Wilmington, Delaware. Id. DuPont's "sole
connection" to this case is its "former ownership interest in a joint
venture business, DuCoa, that manufactured choline chloride." DuPont Mem.
in Support of Mot. For Partial Summ. J. On the Issue of an All-Vitamins
Conspiracy at 1.
According to DuPont, Plaintiffs have attempted to establish two
connecting points that
render DuPont liable in the all-vitamins conspiracy. First,
Plaintiffs have alleged that DuPont "participated" in a choline
conspiracy, which is part of a larger conspiracy through the "alleged
participation in a choline chloride conspiracy by Dr. Earnie Porta, a
one-time DuPont employee and later, President of DCV, Inc." Id.
at 20. Second, Plaintiffs assert that DuPont's status as a general
partner in the joint venture, DuCoa, for a period of time in the late
1980s until the early 1990s renders it liable. Id. DuPont
claims that it "did not manufacture, distribute or sell choline
chloride," or any other vitamin at issue in the all-vitamins conspiracy.
DuPont Statement of Undisputed Material Facts In Supp. Mot. For Partial
Summ. J. On All-Vitamins Conspiracy ¶ 3.
There are two DuCoa defendants: DuCoa, L.P. and DCV, Inc. In December
1986, DuPont and ConAgra formed DuCon, a general partnership joint
venture, in order to manufacture choline chloride. DuPont Statement of
Undisputed Material Facts In Supp. Mot. For Partial Summ. J. On
All-Vitamins Conspiracy ¶ 4. DuCon changed its name to DuCoa on
October 1, 1991. Id. at ¶ 5. On December 31, 1992, DuCoa
was converted to a limited partnership with DuPont and ConAgra as limited
partners and DCV, Inc., a newly formed Delaware corporation, as the
general partner. Id. Among the fourteen different partnerships
organized under the umbrella of DCV, Inc., only DuCoa was involved in the
manufacture and sale of choline chloride. Plaintiffs contest the accuracy
of DuCoa's formation in that an insufficient record was provided by DuCoa
in support thereof. Pls.' Opp'n. to Defs.' Statement of Facts Which
Precludes Entry of Summ. J. on DuCoa, L.P. and DCV Inc.'s Mot. Summ. J.
DuCoa (originally as DuCon) began manufacturing choline chloride in
December 1987. DuCoa manufactured choline chloride from December
1987 through June 1, 2001. DuPont Statement of Undisputed Material Facts
in Supp. Mot. Partial Summ. J. at ¶ 5-6. On June 1, 2001, DuCoa's
choline business was sold as part of a package of businesses to Balchem.
Id. In 1995, DuCoa began buying and reselling various
"Vitamins"*fn10 and blending and selling premix. Id. at ¶
There is one Bioproducts Defendant: Bioproducts, Inc. Bioproducts is a
wholly-owned subsidiary of Mitsui*fn11 located in Fairlawn, Ohio.
Bioproducts manufactured choline and vitamin premixes. Pls.' Joint
Counterstatement of Facts in Opp'n to Defs.' Mots. Summ. J. ("PJC") ¶
38. Bioproducts manufactured and sold feed-grade choline chloride during
the conspiracy periods alleged by Plaintiffs. Bioproducts' Mem. Supp.
Mot. Summ. J. at 2. Bioproducts maintains that it did not manufacture or
sell any vitamins other than choline chloride during the conspiracy
periods alleged by Plaintiffs. Id.
There are two Chinook defendants: Chinook Group Limited and Chinook
Group, Inc. Chinook Group Limited is a corporation organized under the
laws of Ontario, Canada, with its principal place of business in Sombra,
Ontario. Chinook Mot. Summ. J. Ex. A (Aff. of Dean Lacy). Chinook Group,
Inc. is a Minnesota corporation that is wholly-owned by its Canadian
parent, Chinook Group Limited. Chinook Mot. Summ. J. on All-Vitamins
Conspiracy at 2.
Chinook Group Limited manufactures and sells choline chloride which is
produced at its plants in Canada. Chinook Group, Inc. provided a "toll"
manufacturing service to Chinook Group Limited (formerly known as Chinook
Group) from 1988 through 1998, converting aqueous choline chloride into
dry choline chloride. Id.
Neither Chinook Group Limited nor Chinook Group, Inc. manufactured or
sold any vitamin product, nor any products that could be used as
ingredients in any vitamin product, other than choline chloride.
2. The Product
Defendants are all manufacturers of choline chloride, also known as
Vitamin B4, more commonly known as "choline." Choline is a nutritional
supplement used primarily in animal feed. Choline is synthesized from
three chemical products: trimethylamines, ethylene oxide, and
hydrochloric acid. During the relevant time period, all of the choline
chloride manufacturers made at least one of the raw materials needed to
manufacture choline. Pls.' Mem. Opp'n. UCB's Mot. Summ. J. at 5.
Defendants differentiate choline from other vitamins because choline
(1) is produced through a process using largely different raw materials
than other vitamins, and (2) there are no
substitutes for choline (and, conversely, choline is not a
substitute for any other vitamin). Defendants have even defined the term
"Vitamins" so as not to include choline chloride. See, e.g.,
UCB's Mem. Supp. Mot. Summ. J. at 2. Plaintiffs argue that this
"arbitrary" definition has been devised solely "to support [Defendants']
motions to sever choline from the rest of the conspiracy." Pls.' Mem.
Opp'n. UCB's Mot. Summ. J. at 5.
3. The Alleged "Ringleaders"
BASF Atkiengesellschaft, or BASF AG ("BASF"), is a corporation
organized and existing under the laws of Germany. BASF's principal place
of business is in Ludwigshafen, Germany. BASF Agreed Statement of Facts
(Fed. Ct. Canada) (Sept. 17, 1999). Among other things, BASF is involved
in the production and/or sale of oil and gas, bulk chemicals, plastics,
high performance chemical products, plant protection products, and
pharmaceuticals. BASF AG's Fine Chemicals Division produces and sells
vitamins. At one time, BASF was the second largest supplier of bulk
vitamins and carotenoids in the world. PJC at ¶ 7. From at least 1992
through 1995, BASF was one of the principal European manufacturers and
marketers of choline chloride. BASF Agreed Statement of Facts (Fed. Ct.
Canada) (Sept. 17, 1999). BASF is no longer a defendant in any active
litigation as BASF has settled all claims with Plaintiffs.
b. F. Hoffman-LaRoche Ltd
F. Hoffman-LaRoche Ltd ("Roche"), headquartered in Basel, Switzerland,
is one of the largest pharmaceutical and health groups in the world. PJC
at ¶ 1. At the time of the European Commission decision against Roche
(Nov. 21, 2001), Roche was the largest vitamin producer in the world,
controlling approximately 50% of the overall market. ECF ¶ 77.
operations account for approximately 8% of the corporation's
overall gross income. PJC ¶ 4.
c. Coordination of Activities
Although BASF and Roche are no longer parties to the instant motion,
both are critical to Plaintiffs' case. Plaintiffs theorize that both BASF
and Roche controlled the choline conspiracy. See, e.g., Pls.'
Slide Ex. at 19 ("Roche and BASF were joint leaders and instigators of
the collusive arrangements affecting the common range of vitamin products
they produced. . . ." (quoting ECF ¶ 712)).
BASF acknowledged to both Canadian and European authorities its
"pre-eminent role" in the global agreements. PJC at ¶ 344; BASF
Agreed Statement of Facts (Fed. Ct. Canada (Sept. 17, 1999)). BASF
provided several documents to the EC indicating its intent to fix prices
and allocate market shares in the choline chloride market. See,
e.g., BASF AG 0033336-55; BASF AG 003361-62; BASF AG 0033449-75;
BASF AG 0033477-79; BASF AG 0033480-33564; BASF AG 0033580-613. The
documents also indicate BASF's coordination of conspiracy activities with
The only direct link that Plaintiffs provide establishing Roche's
connection to the conspiracy is a document produced by BASF.*fn12 BASF
AG 0025648-49.*fn13 The European Commission found that Roche was the
"prime mover and main beneficiary of the complex of collusive
arrangements." ECF ¶ 568. The Commissions' findings, however, do not
A secondary argument setting forth Roche's involvement in the choline
conspiracy is Roche's economic incentives. In addition to manufacturing
and selling many vitamin products, Roche is also a buyer and reseller of
choline chloride, primarily in the form of premix. Premix is a blend of
vitamins sold as a separate product. Most animal feed is purchased in the
form of premix. Choline is a component in 25% of Roche animal feed premix
and therefore affects the level at which Roche sets its premix prices.
PJC ¶ 63.
Plaintiffs' theorizes that Roche helped coordinate the effort to raise
choline prices because higher choline prices helped Roche justify higher
premix prices to their customers. Additionally, Plaintiffs assert that
Roche was able to "marginalize" other premix competitors by "charging
higher prices and limiting access to key vitamins." Pls.' Slide Ex. at
34. Plaintiffs attempt to establish, at times without direct evidence of
meetings between these two co-conspirators and Defendants, that the
"dominant positions" of BASF and Roche gave each the incentive to control
several markets. This theory holds that the higher the price of choline,
the more "reasonable" the prices of other vitamins look to BASF and
Roche's customers. See, e.g., Pls.' Slide Ex. at 19.
4. The Choline Conspiracy
For purposes of the instant motion, Defendants do not contest liability
with respect to a choline chloride conspiracy. Each Defendants' formal
acceptance of responsibility for the
choline conspiracy varies as follows:
UCB: UCB has not pleaded
DuCoa: DuCoa has pleaded guilty to price
fixing and customer and market
allocation in the choline
Employees Lindell Hilling, John
"Pete" Fischer and Antonio Felix
have pleaded guilty to price fixing
and customer and market allocation
in the choline industry.*fn16
DuPont: DuPont has not
Bioproducts: Bioproducts has
Employee John Kennedy pleaded
guilty to engaging in
price-fixing while employed
Chinook: Chinook has pleaded guilty to
engaging in price-fixing and
market allocation of the North
American market for choline
chloride.*fn19 Employees Russell
Cosburn, John Kennedy, and Robert
Samuelson have also pleaded
guilty to engaging in illegal
price fixing while
employed by Chinook.*fn20
Additionally, there is evidence in the record of UCB's participation in
the choline conspiracy. For example, in BASF's Agreed Statement of Facts
to the Department of Justice in Canada, BASF states that it met in 1992
with senior representatives from Akzo Nobel, UCB, Bioproducts, Chinook,
and DuCoa in Mexico. City. In that meeting, the parties "discussed, but
did not agree on, a market allocation arrangement and the
desirability of a price increase for choline chloride." BASF Agreed
Statement of Facts (Fed. Ct. Canada) (Sept. 17, 1999).
The above facts indicating the Defendants' positions with respect to
admissions on a choline conspiracy are recited merely for foundational
purposes. The instant motion focuses solely on whether an all-vitamins
conspiracy existed from the viewpoint of each Defendant.
The Summary Judgment Standard*fn21
1. Matsushita and the Antitrust Standard
Summary judgment shall be entered "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact. . . ." Fed.R.Civ.P. 56(c). When analyzing this
evidence, the Court must view the underlying facts in the light most
favorable to the party opposing the motion for summary judgment.
See e.g. Atlantic Richfield Co. v. USA Petroleum
Co., 495 U.S. 328 (1990), Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), United States
v. Diebold, Inc., 369 U.S. 654 (1962). At issue in this case is
whether Plaintiffs' claim that Defendants participated in an all-vitamins
antitrust conspiracy can survive summary judgment. The
Matsushita line of cases addresses the summary judgment
standard relating to conspiracy allegations in the civil antitrust
context, and controls in the instant case. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).*fn22
Based on an analysis of Fed.R.Civ.P. 56(c) and 56(e), the Court held
in Matsushita that in order to survive summary judgment,
litigants "must establish that there is a genuine issue of material fact
as to whether [Defendants] entered into an illegal conspiracy that caused
[Plaintiffs] to suffer a cognizable injury." Matsushita, 475
U.S. at 585-86. The Court further explained this analysis stating:
This showing has two components. First,
respondents must show more than a conspiracy in
violation of the antitrust laws; they must show an
injury to them resulting from the illegal conduct.
Second, the issue of fact must be
"genuine". . . . In the language of [Fed.R. Civ.
Pro. 56(e)], the nonmoving party must come forward
with "specific facts showing there is a
"genuine issue for trial."
It follows then from these settled principles
that if the factual context renders respondents'
claim implausible if the claim is one that
simply makes no economic sense respondents
must come forward with more persuasive evidence to
support their claim than would otherwise be
Matsushita, 475 U.S. at 585-87 (citations omitted)
(emphasis in original).
The Court in Matsushita clarified that in the face of economic factors
dictating that the nonmoving party's theory is irrational, that party
must submit evidence to establish that the theory remains practical and
genuine despite economic evidence to the contrary. Citing Monsanto
Co. v. Spray-Rite Serv. Corp., the Matsushita Court
reiterated that the limits antitrust law places on the range of
permissible inferences from ambiguous evidence dictate that "conduct as
consistent with permissible competition as with illegal conspiracy does
not, standing alone, support an inference of antitrust conspiracy."
Id. at 588 (citing 465 U.S. 752 (1984)). The importance of the
nonmovant asserting a theory that makes "economic sense" is further
explained by the Court:
The absence of any plausible motive to engage in
the conduct charged is highly relevant to whether
a "genuine issue for trial" exists within the
meaning of Rule 56(e). Lack of motive bears on the
range of permissible conclusions that might be
drawn from ambiguous evidence: if petitioners had
no rational economic motive to conspire, and if
their conduct is consistent with other, equally
plausible explanations, the conduct does not give
rise to an inference of conspiracy.
Id. at 596-97.
2. Economic Plausibility
The defense argues that Plaintiffs' economic theory is implausible, and
the evidence presented indicates procompetitive, rather than
anticompetitive, conduct. Defendants further submit that the
Monsanto case bars Plaintiffs from an inference of antitrust
behavior because there are two reasonable interpretations of the
evidence, and Plaintiffs interpretation of the evidence is supported by
an economic theory that is irrational like the theory presented in
Matsushita. See, e.g., Hr'g Tr. at 121-23;
Monsanto Co. v. Spray-Rite Serv. Corp.,
465 U.S. 752, 768 (1984). The reason that there are competing inferences,
Defendants argue, is that the so-called "co-conspirators" had legitimate
business relationships with the choline Defendants as either buyers or
sellers of certain products. Hr'g Tr. at 121-23. Defendants contend that
all of the evidence proffered by Plaintiffs in response to their motions
is consistent with procompetitive conduct. For example, Defendants argue
that Roche's position as a buyer of choline renders every communication
with the choline Defendants legitimate.
In response to Defendants references to the implausible economic theory
rejected by the Matsushita Court, Plaintiffs argue their
all-vitamins conspiracy theory stands on solid ground:
Many vitamin purchasers and plaintiffs in
this litigation bought a broad range of
different vitamins. Because many customers
purchased a panoply of vitamins, defendants needed
to avoid the appearance of vigorous price
competition on one vitamin vis-a-vis any other
vitamin. As defendants frequently recognized,
price trends on one vitamin product could affect
prices for other vitamin products and especially
that deterioration of pricing on one vitamin could
spread to other vitamins. Thus, the success of the
overall vitamins conspiracy depended on the
participation by each member of the conspiracy,
including those who sold only a single vitamin.
PJO at 37.
The question is whether communications among Defendants regarding the
vitamin markets are justified as procompetitive behavior or are
consistent with collusive activity. Judge Posner, writing for the three
judge panel in In re High Fructose Corn Syrup, suggested that
Matsushita permitted a sliding scale approach in antitrust
cases, stating: "[m]ore evidence is required the less plausible the
charge of collusive conduct." In re High Fructose Corn Syrup
Antitrust Litig. 295 F.3d 651, 661 (7th Cir. 2002).*fn23 Judge
Posner further explained in cases
where there is no proof of defendant admissions as to a price
fixing conspiracy, evidence "from which the existence of such an
agreement can be inferred" may be presented to defeat summary judgment.
Id. at 654. This point was further explained when Judge Posner
warned of certain "traps" courts should avoid when ruling on motions for
summary judgment. He explains that a court should not fall into the trap
of assuming that:
if no single item of evidence presented by the
plaintiff points unequivocally to conspiracy, the
evidence as a whole cannot defeat summary
judgment. It is true that zero plus zero equals
zero. But evidence can be susceptible of different
interpretations, only one of which supports the
party sponsoring it, without being wholly devoid
of probative value for that party.*fn24
Id. at 656.
One certainty that can be drawn in this case is that various
Defendants' alleged conduct is without question dissimilar to the conduct
at issue in Matsushita. In Matsushita, the
defendants' conduct had tangible, procompetitive effects: each defendant
was lowering the price of their product in the U.S. market.
Matsushita, 475 U.S. at 577. When prices are lowered, other
competitors are forced to compete and consumers win. The rationale
behind the Supreme Court's decision in Matsushita is to protect
market players who exhibit this type of unquestionably procompetetive
behavior that leads to consumer-friendly results in the overall
If Roche discusses choline production with a choline producer, that
discussion is one of many routine business transactions that occurs
world-wide in virtually every market on a daily basis. Although the
inference of collusion may be unclear, as Defendants suggest, it is just
as unclear that any procompetitive effects result from such
behavior. Furthermore, the inference against procompetitive effects in
these situations is significantly stronger in light of the concession
made by some defendants that a choline chloride conspiracy took place.
The Court recognizes that Roche is also a legitimate purchaser of choline
chloride and has the right to talk to its sellers as a legitimate
purchaser. As explained in High Fructose, however, the evidence
as a whole i.e., the backdrop of widespread, admitted,
illegitimate behavior cannot be ignored. Defendants position that
discussions between admitted conspirators must be evidence of
procompetitive behavior simply is not convincing.
In looking at the entire factual context to determine whether the
reasonable inferences that Plaintiffs seek could have a competing
inference of independent action, as is required by Matsushita,
475 U.S. at 587-88, the Court finds that the Plaintiffs' inference of
conspiracy is, in general, entirely plausible. Furthermore, as the
Supreme Court explained in Eastman Kodak Co. v. Image Technical
Serv., Inc., "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 . . .
Matsushita demands only that the nonmoving party's inferences
reasonable in order to reach the jury, a requirement that was not
invented, but merely articulated in that decision." 504 U.S. 451, 468
The Alleged "All-Vitamins" Conspiracy
Both Plaintiffs and Defendants use essentially the same elements to
define what constitutes a conspiracy:*fn25 (1) Defendants must have had
knowledge of an "all-vitamins" conspiracy, (2) Defendants must have
intended to join the "all-vitamins" conspiracy, and (3) by joining the
"all-vitamins" conspiracy, Defendants were interdependent upon one
another in that their respective benefit depended on the success of the
"all-vitamins" venture. E.g. United States v. Tarantino,
846 F.2d 1384, 1392 (D.C. Cir. 1988).
In order to establish the requisite knowledge of the conspiracy,
Plaintiffs must prove that each Defendant was united in a common unlawful
goal or purpose, or knew of the conspiracy's general scope and purpose.
Tarantino, 846 F.2d at 1392 ("A single conspiracy may be
established when each conspirator knows of the existence of the larger
conspiracy and the necessity for other participants, even if he is
ignorant of their precise identities.").*fn26 The parties are in
agreement on this issue.*fn27
Although Plaintiffs must show that each Defendant had knowledge of an
agreement as to the overall conspiracy, they need not show (1) evidence
of a formal agreement, or (2) knowledge, on behalf of the Defendant, of
every detail of the alleged conspiracy. United States v.
Nusratv, 867 F.2d 759, 763 (2d Cir. 1989) ("the `government's proof
of an agreement' does not require evidence of a formal or express
agreement; it is enough that the parties have a tacit understanding to
carry out the prohibited conduct.") (citations omitted)); Mylan
Labs., Inc. v. Akzo. N.V., 770 F. Supp. 1053, 1066 (D. Md. 1991)
("[plaintiff] need not show that each alleged conspirator had knowledge
of all of the details of the conspiracy" (citations omitted)).
Additionally, although Plaintiffs must establish a common goal, it is
not necessary to provide direct evidence of the conspiracy. See
United States v. Consol. Packaging Corp., 575 F.2d 117, 126 (7th
Cir. 1978) (holding that direct evidence is not needed to prove a
conspiracy, rather "a common purpose and plan may be inferred from a
`development and a collocation of circumstances") (citing Glasser v.
United States, 315 U.S. 60, 80 (1942)). Cf. Continental Ore Co.
v. Union Carbide and Carbon Corp., 370 U.S. 690, 699 (1962) (noting
that parties should be given the full benefit of their evidence without
the Court "compartmentalizing the various factual components and wiping
the slate clean after scrutiny of each").
2. Intent to Join
Knowledge alone is not sufficient to prove that any particular
Defendant intended to join the all-vitamins conspiracy. United
States v. Townsend, 924 F.2d 1385, 1391 (7th Cir. 1991) (mere
knowledge not enough to "tie the conspiracy together"); United
States v. Simms, 508 F. Supp. 1188, 1198 (W.D. La. 1980) (mere
knowledge of object or purpose, "without the intention and agreement to
cooperate" not sufficient). Cf. United States v. Saro,
24 F.3d 283, 288 (D.C. Cir. 1994) (defendant "not accountable" where
co-conspirators actions are merely foreseeable).
Although "mere knowledge of another similarly motivated conspiracy or
an overlap in personnel do not prove one overall agreement," there may be
an intent to join an overall, conspiracy if the "common purpose of a
single enterprise. . . . motivate[s] each participant and each act."
United States v. Snider, 720 F.2d 985, 988 (8th Cir. 1983). The
Supreme Court has explained that a party progresses from mere knowledge
of an endeavor to intent to join it when there is "informed and
interested cooperation, stimulation, instigation. And there is also a
in the venture' which, even if it may not be essential, is not
irrelevant to the question of conspiracy." Direct Sales Co. v.
United States, 319 U.S. 703, 713 (1943). The intent that must be
shown in a conspiracy case is the intent to advance the unlawful purpose
of the conspiracy. United States v. Haldeman, 559 F.2d 31, 112
(D.C. Cir. 1976).
In this case, Defendants argue that "[Plaintiffs must show that] each
individual vitamin producer needed to have the prices of many vitamins
fixed to benefit from anticompetitive conduct in its vitamin market" and
if there is no such showing, "a fact finder could not legitimately
conclude that a single conspiracy existed." Defs.' Mem. at 20. "Thus,
plaintiffs must show, for example, that price fixing activities in
Vitamin B5 were somehow necessary for manufacturers of choline chloride
to successfully raise prices." Defs.' Mem. at 21.
This Circuit has recognized a more relaxed standard. "Fairly minimal"
evidence is needed in order to establish interdependency between various
branches of a common conspiracy. United States v. Gatling,
96 F.3d 1511, 1522 (D.C. Cir. 1996) (finding interdependence between various
participants in conspiracy to commit bribery based on minimal factors
such as an overlap in participation and timing); United States v.
Graham, 83 F.3d 1466, 1471-72 (D.C. Cir. 1996) (finding
interdependence between members of competing drug cliques who assisted
each other on occasion, even though the assistance was not significant to
the success of each clique). United States v. Mathais,
216 F.3d 18, 24 (D.C. Cir. 2000) ("Fairly minimal' evidence may establish
The All-Vitamins Conspiracy Evidence
1. The Choline Conspiracy
a. The North American Market
Chinook and other North American co-conspirators admit that they began
fixing prices, allocating customers, and allocating the volume of choline
chloride sold in Canada, the United States, and elsewhere around January
1988. Chinook Plea Agreement (Sept. 29, 1999); Hilling Plea Agreement
(Mar. 2, 1999); Felix Plea Agreement (Mar. 2, 1999); Fischer Plea
Agreement (Mar. 2, 1999). The North American choline producers'
conspiracy agreement ran at least until September 1998. Id.
Russell Cosburn testified that around 1988 he met with representatives
from companies including Bioproducts, DuCoa, and DuPont at DuPont's
offices in Wilmington, Delaware. PJC ¶ 358 (citing Cosburn Dep. at
54). Cosburn stated that the meeting was called and chaired by Dr.
Earnest Porta on behalf of DuPont. Porta indicated to the group that the
European choline producers "knew how to market and sell products better
than the participants they had sort of industry connections amongst
themselves." Cosburn Dep. at 53-54. Porta suggested that the meeting
attendees (i.e., the North American choline producers) "should start
doing the same things in North America." Id. Porta proposed
that the North American producers should "decide how [they] could keep
price stability in the market" by, for example, "divid[ing] up customers,
or . . . stay[ing] firm on prices." Id. at 56.
In early 1988, DuCoa, Bioproducts and Chinook agreed to raise prices of
choline. Cosburn indicated that the agreement to do so was carried out as
. . . [W]e would increase the choline prices by
three-quarters of a cent or a cent or whatever was
decided by whose turn it was to raise prices . . .
so that [for example] if DuCoa announced an
increase of one cent a pound on choline chloride on
such and such a date, across the board . . . then
Chinook would come out and say, "We are going to
adopt the new price list published by," et cetera,
and then Bioproducts would do it, and this would
go on and on.
Cosburn Dep. at 62-63. The price increases were published in trade
publications such as the industry trade journal, Feedstuffs.
b. The European Market
The evidence indicates that the European producers began fixing prices
and allocating market shares of choline chloride as early as 1983.
See, e.g., UCB Answers to Interrogs. (Dec. 7, 2001). UCB
submissions to the European Commission indicate meetings among the
European producers to fix prices and allocate markets in Europe.
See, e.g., UCBSA-017937 (meeting between UCB, BASF and Akzo
Nobel re: "guid[ing] prices, supply to a certain number of clients in
Germany, Belgium, France, and The Netherlands").*fn28
Russell Cosburn testified in his deposition that by around January
1988, it was "fairly common knowledge" in the choline industry that the
Europeans were engaged in cartel activity. Cosburn Dep. at 54.
Specifically, the European producers "probably got together and managed
the industry in one way or another." Id. Management of the
industry included the choline chloride market. Id.
c. The Europeans vs. the North Americans: Conspiracies
The North Americans and Europeans were successfully controlling their
respective markets by the early 1990s. Cooperation across the two markets
did not arise until players from each side entered, or threatened to
enter, the other's market. Price competition from overseas would have
destabilized or destroyed the separate conspiracies in each market. PJC
at ¶ 355.
For example, around 1990, Chinook, the North American producer located
in Canada, began to "aggressively" expand their choline sales into
Europe, which "upset" the European producers. Cosburn Dep. at 98-99;
Hooghe Dep. at 295. Mr. Leopold Hooghe, a UCB employee, testified that
around 1990, he met with Chinook representative Russell Cosburn at a bar
in the Brussels, Belgium airport. Hooghe Dep. at 299-300. Hooghe
[Cosburn] became a bit talkative and [began]
telling me that [Chinook was] to become the
biggest [choline producer] all over the world . . .
because [Chinook] had the best quality and the
best product and the lowest price . . . [Cosburn
said that Chinook would] just start in Belgium,
but one country after another [Chinook would] take
and . . . within a couple of years, there will be
left only one name in choline chloride and that
will be Chinook.
. . . [Cosburn] told me that [Chinook was] happy
and they could always undercut [UCB]. There
wouldn't be a problem even if they had to sell at
very low prices.
Id. At that same meeting at the Brussels airport, Mr. Hooghe
also became aware that American choline producers (i.e., Bioproducts and
DuCoa) had "agreements" among themselves to control market prices: "So in
that same informal meeting, Russ Cosburn made very clear to me that there
were agreements between the American producers." Id.
Cosburn testified that only "a few months" after Chinook started
selling in Europe, he received a phone call from Dr. Walter Kohler of
BASF. Cosburn Dep. at 98. Kohler indicated "that [the European producers]
had noticed Chinook had become very active in the Far East . . .
and the most disturbing thing to him was that [Chinook was] now
putting product into Europe." Id. at 99. Kohler wanted to know
what Chinook's objectives and intentions were in the choline markets.
The Europeans retaliated. In 1992, a BASF subsidiary in Mexico. entered
into a contract to supply choline in the United States. In response,
Bioproducts, Chinook and DuCoa called a meeting with BASF to "complain
about [BASF's] pricing and to suggest setting limit prices in the U.S."
BASF AG 0033443.
In early 1992, Leopold Hooghe from UCB traveled to North America for
separate meetings with DuCoa and Chinook. Hooghe Dep. at 293. Hooghe told
the North American producers that UCB was interested in selling choline
in the United States. The statement was a bluff, intended to force the
North Americans to "reconsider the way they started behaving in selling
. . . in Europe one or two years before." Id. at 294. Hooghe
told Chinook about the sham strategy, then told Bioproducts and DuCoa a
day and two days later in part to confirm "there were [illegal] contacts"
among those producers. Id. at 301-02.
d. The North Americans and Europeans Meet
The greater choline conspiracy involving both the North Americans and
Europeans began at least in 1992, at approximately the same time both
sides began penetrating each other's markets. PJC ¶¶ 343-44. It is
through this interaction to coordinate conspiracies that Plaintiffs
allege the North American Defendants became aware of the all-vitamins
In a call Walter Kohler made to Russell Cosburn of Chinook, Kohler
suggested that Cosburn meet with representatives from UCB and Akzo Nobel,
the two other European choline
producers. Cosburn Dep. at pp. 104-05. Kohler even provided names
for Cosburn to contact. Id. Cosburn followed up with meetings
with representatives from both companies. Id.
The first meeting between all the major parties was in Mexico. around
October 1992. Hooghe Dep. at pp. 290-91. There, UCB met with BASF, Akzo
Nobel, Bioproducts, Chinook and DuCoa. Both sides talked about exiting
the other's markets. Kennedy Dep. at 419. BASF then took the lead and
proposed that the parties stop arguing about territory and settle on
"world capacities for choline." Id. at 420. The parties agreed
to meet again in Germany. Id. at 426.
The following month, the parties gathered at Ludwisghaven, Germany. In
Ludwigshafen, an agreement was made whereby the North American suppliers
would withdraw from Europe and the Europeans would withdraw from the
United States. Id. at 447. The parties also discussed "target
prices" which the parties agreed to charge customers. Id. at
448-450. From November 1992 through April 1994, the parties met on a
number of occasions to reaffirm their agreement by exchanging data
regarding market shares, sales and overall progress. PJC at ¶¶ 367-68
2. The All-Vitamins Conspiracy Evidence Against Each Party
The Court must view the evidence from the standpoint of each Defendant
to determine liability in a conspiracy case. United States v. United
States Gypsum Co., 438 U.S. 422, 463 (1978) ("Liability [can] only
be predicated on the knowing involvement of each defendant, considered
individually, in the conspiracy charged.").
Although UCB contests liability for the choline conspiracy, there is
evidence that UCB
participated in the price fixing and allocation of the choline
market. For example, the evidence indicates that UCB attended the Mexico
City meeting in 1992 where senior representatives from BASF, Akzo Nobel,
Bioproducts, Chinook, and DuCoa discussed choline market allocation.
See, e.g., BASF Agreed Statement of Facts (Fed. Ct. Canada)
(Sept. 17, 1999).
The main document Plaintiffs offered to link UCB to the all-vitamins
conspiracy is the internal memorandum from Christopher Tarmu to Guy Van
Den Bossche, both UCB employees, detailing Tarmu's meeting with John
Hobbs from Roche. UCBSA 018056-018057. The relevant portion of the memo
reads, "I learned some interesting information about competition and the
price information which is given below was taken directly off John
Hobbs' computer screen which he turned round for me to read!!"
Id. (emphasis in original).
The document indicates that Tarmu was meeting with Hobbs, "who is
Purchasing Director at Roche Products," in order to "sort out the ongoing
problem about this first trial bulk delivery." Id. Looking at
the document in its entirety, the statement quoted above has a much more
innocuous meaning. In addition, there is evidence in the record that
Tarmu frequently met with Hobbs in order to discuss legitimate sales.
See, e.g., UCBSAG013971-013 972. Further, Tarmu writes,
[O]ne of the problems with Roche is the
transparency of their purchasing information
around Europe. John Hobbs is a smart man, and he
only revealed the UCB Leuna information to me
after we had quite a hard negotiation in which I
was attempting to justify no weakening of the
current price offered of £ 520/tonne.
John Hobbs has accepted this further trial
order, but I quite understand his point against
the background of the above information, when he
says that if UCB wishes to have business every
month. . . ., then there has to be further
negotiation on prices.
UCBSA-018057. The Plaintiffs' theory that Roche is coordinating the
price-fixing of choline
through its buyer position is not supported here. Rather, it is
contradicted. Roche is conducting negotiations with UCB. The implication
to be drawn is that Roche is willing to deal with UCB, but only if their
price can be negotiated. Plaintiffs cannot be entitled to the inference
of an all-vitamins conspiracy from this document that so plainly speaks
in competitive terms.
The Plaintiffs also attempt to establish UCB's liability on the
all-vitamins conspiracy through its seller/buyer relationship with Roche
Like the other choline producers . . . UCB had a
close relationship with non-choline producer and
Vitamins Inc. ringleader Roche. In addition to
these arrangements with Roche, UCB sold choline to
Rhone Poulenc, another key member of Vitamins Inc.
UCB also sold choline to Degussa, another member
of Vitamins Inc. that did not produce choline.
Through these relationships with companies
involved in other aspects of the conspiracy, UCB
knew the full scope and implication of Vitamins
Inc. In addition, it even adopted the conspiracy's
terminology calling the choline component the
"club." And UCB followed the same model that was
used throughout the conspiracy in setting prices
and adhering to market allocation.
PJC at 177 ¶ 376. This "relationship" evidence, even viewed in the
light most favorable to Plaintiffs, does not indicate even an inference
of UCB's knowledge of or participation in an all-vitamins conspiracy.
The Plaintiffs have provided no evidence that can satisfy even a very
low burden of establishing that UCB at least knew of and possibly
participated in an all-vitamins conspiracy.
One of the most damaging documents indicating DuCoa's participation in
the alleged all-vitamins conspiracy is a fax from Takeda to DuCoa
regarding a February 9, 1993 meeting between the two companies. DUCOA
060806. The fax lists "Overall market review" as one of the topics on the
proposed agenda. Id. The next line on the fax proposes that the
chloride market be next on the agenda, broken down between the
world market and the Asia/Japan market. Id.
Although the term "Overall market review" is not defined, the Court can
infer that this phrase relates to vitamins other than choline for two
reasons. First, discussion of the Choline Chloride market is listed as a
separate agenda item. Second, because Takeda neither manufactures, sells
nor purchases choline chloride,*fn29 it is hard to believe that
discussion of "Overall market review," which is to be lead by Takeda,
will discuss Choline Chloride. Although there is no evidence that this
meeting actually took place, that issue is immaterial to the Court's
analysis. At a minimum, this document indicates that these two parties
had discussions regarding vitamins other than choline.
The Court is not bound to examine this document in a vacuum. See,
e.g., Continental Ore Co. v. Union Carbide and Carbon
Corp., 370 U.S. 690, 699 (1962) ("The character and effect of a
conspiracy are not to be judged by dismembering it and viewing its
separate parts, but only by looking at it as a whole." (citations
omitted)). In light of the factual background that Takeda was found to
have participated illegally in five different cartels (specifically,
vitamins B1, B2, B6, Folic Acid, and C);*fn30 and DuCoa has pleaded
guilty to price-fixing and customer and
market allocation in the choline industry,*fn31 there is a higher
probability that this document supports a finding of illegal activity on
behalf of DuCoa.
A similar document sent by Rhone-Poulenc to DuCoa shows substantially
the same conduct. In an April 1, 1997 fax from Rhone-Poulenc to DuCoa,
Rhone-Poulenc lays out a planned agenda for meetings between the two
parties on April 28, 1998 and April 29, 1998. DUCOA087581-DUCOA087583. On
the top of the list of topics to be covered at the meeting states the
following: "First and Foremost is this is an opportunity for open sharing
of plans and directions for both companies to complement each others
objectives and goals in the long term." DUCOA-087582. These are two
competitors meeting about "sharing plans" and "complementing" their
businesses not the types of discussions that should take place
Also included in the topics to be covered during the meeting were
"DuCoa's plans for vitamin premixes" and "How can RPAN support [DuCoa's]
efforts"; a review of DuCoa's operations, products, and services;
"DuCoa's perception of how the livestock market will evolve in the next 5
years;" comments DuCoa has "regarding key players in the market"; and a
request for comments on DuCoa's competitors of choline, premixes and
distribution, Roche, BASF, Novus, Degussa, and the National feed
companies." Id. In exchange, the agenda called for
Rhone-Poulenc to "share their perspective in several of the [same
areas]." Id. Rhone-Poulenc was also to cover an "update on the
global vitamin market (demand and pricing) with a focus on vitamin E."
These two documents establish that there is a genuine issue of fact as
to whether DuCoa had knowledge of an all-vitamins conspiracy.
Additionally, this documents show there is enough evidence to create a
factual issue as to whether DuCoa manifested an intent to join, and
interdependence on, the all-vitamins conspiracy. Summary judgment in
DuCoa's favor is therefore not justified.
The activities of Dr. Earnest Porta alone create the most damaging
evidence against DuPont. As documented above, Dr. Porta planned,
organized and ran the choline meeting at DuPont's headquarters in
Wilmington, Delaware around February 1988. See, e.g., Cosburn
Dep. at 51-54. At that meeting, Porta suggested that the North American
producers start coordinating their activities in order to "keep price
stability in the market." Id. at 56.
At that same meeting, Porta also displayed his knowledge of the
European market. He told the participants that the Europeans had
"industry connections amongst themselves," which allowed them to "market
and sell products better than the North Americans." Id. at
53-54. Porta indicated that the Europeans had some sort of "cartel"
arrangement. Id. at 54 Russell Cosburn testified that it was
"fairly common knowledge" that the Europeans "got together and managed
the industry in one way or another." Id.
Lindell Hilling's testimony firmly places Porta at the helm of the
conspiracy. Hilling testified in his affidavit that in 1988, he and
Porta attended a meeting in Toronto where they met representatives from
Chinook. Hilling Aff. ¶ 8. During that meeting, the parties agreed
that they would not "poach" on each other's customers. Id. They
also agreed to begin sharing price information. Additionally, Hilling
testified that he would report back to Porta after subsequent
conspiratorial meetings. Id.
In High Fructose Corn Syrup, the court made clear that the
existence of a price fixing conspiracy can be inferred from the evidence
as a whole. 295 F.3d at 654-56. DuPont employee Dr. Porta participated in
directing the choline conspiracy and had knowledge of the European cartel
schemes. This evidence, in addition to the entire factual record in the
case, is sufficient to establish that there is a genuine issue as to
DuPont's knowledge of, intent to join, and interdependence on the
Bioproducts asserts it did not manufacture or sell any vitamin other
than choline and premix, or any of the raw materials used in the
manufacture of other vitamins, during the conspiracy periods alleged by
Plaintiffs. Bioproducts Mem. at 2. Bioproducts also points out that it
has never been tried for, convicted of, or pleaded guilty to any criminal
offense in the United States. Id. at 4. Nevertheless, John
Kennedy, a former Bioproducts employee who later was employed by Chinook,
pleaded guilty to charges relating to his involvement in a choline
chloride conspiracy and served time in prison. Id. at 10.
On June 27, 1991, Kennedy, who was working for Bioproducts at the time,
had a meeting with Dietz Kaminski and Peter Haag of BASF. Among the notes
taken during that meeting,
Kennedy drew out a rough organizational chart of the BASF Fine
Chemical Division. BIO 019731. Kennedy, Kaminski and Haag discussed
BASF's general sales figures and research costs. BIO 019732. Kaminski and
Haag broke down for Kennedy the total market for vitamin feed among the
four main world competitors: BASF, Roche, Rhone-Poulenc, and Takeda.
Kaminski and Haag also gave company-specific sales volumes for vitamins
A, E, B2, C, and Calpan. BIO 019733.
In his narrative notes of the same meeting, Kennedy mentioned
discussions about "acceptable margins" for the "vitamin businesses." BIO
019734. Kennedy reported, "[BASF] obviously [is] trying to push vitamin
and choline prices up to achieve acceptable profitability." Id.
Kennedy thought this information was so productive that he proposed
"Bioproducts should make the effort to meet with [BASF] no less than
annually for both vitamin and choline world perspectives." Id.
This document provides a clear indication that Bioproducts was aware of
the vitamins conspiracies in general. Bioproducts wanted to update itself
frequently on the progress of the conspiracies in each market, likely in
order to track parallel progress of the conspiratorial successes or
failures outside their market.
Furthermore, Kennedy had been aware of the interrelationship of the
conspiratorial agreements. In the choline meeting set up in Ludwigshaven
shortly after the Mexico. meeting, Kennedy had commented (in the context
of choline-specific agreements) that "everything was interrelated, that
it didn't make sense to agree on one thing if [the producers] could not
agree on the other things." Hooghe Dep. at 386.
This evidence fulfills Plaintiffs burden to demonstrate that there
exists a genuine issue as
to Bioproducts knowledge of the all-vitamins conspiracy.
Furthermore, the evidence establishes that whether Bioproducts possessed
an intent to join and interdependence on the all-vitamins conspiracy are
issues that should be presented to a jury.
Evidence connecting Chinook to the alleged all-vitamins conspiracy is
seen through the deposition testimony of Chinook employee, Russell
Cosburn. Cosburn testified that around January 1988, he met with
representatives from companies including Bioproducts, DuCoa, and DuPont
at DuPont's offices in Wilmington, Delaware. Cosburn Dep. at 52-53. At
that meeting, Dr. Porta of DuPont referred to European "cartel type
business" in the vitamin markets. Id. at 53-53. It was
suggested that North American producers should adopt these cartel type
business practices. Id. at 56. During the last couple months of
1988, a second meeting was held in which North American Choline
producers, including Chinook, agreed to fix the prices of choline
chloride. Id. at 62-63.
Cosburn also testified that during a trip to Europe that included a
meeting with Dr. Walter Kohler of BASF, he learned that Europeans had a
cartel related to vitamins other than choline. Cosburn Dep. at 104-106.
Cosburn testified, "On more than one occasion there was [sic] vitamin
cartels referred to. . . ." Id. This evidence establishes that
Cosburn, acting on behalf of Chinook and with the consent of his boss
Peter Copland,*fn32 had knowledge of a conspiracy other than the choline
There is evidence that Chinook, through Cosburn, actively participated
in the choline price-fixing conspiracy. Furthermore, Chinook employees
knew there were conspiracies involving vitamins other than choline. When
the evidence supporting these two facts is woven together and viewed in
the light most favorable to the plaintiffs, it establishes a genuine
issue as to whether Chinook knew of, intended to join, and was
interdependent on the all-vitamins conspiracy.
Under the Matsushita analysis, the conspiratorial actions
engaged in by Defendants do not indicate a reasonable presumption of
procompetitive conduct. Therefore, Plaintiffs are entitled to the benefit
of the jury determining inferences rather than the Court doing so at the
summary judgment stage. Where the evidence is insufficient to allow a
reasonable inference of participation in the alleged all-vitamins
conspiracy, however, Plaintiffs' case must fail. The Court has evaluated
Plaintiffs' claims from the standpoint of each individual Defendant. The
elements of conspiracy doctrine are minimally satisfied by the evidence
presented with respect to DuCoa, DuPont, Bioproducts and Chinook.
For the reasons set forth above, Defendants DuCoa, DuPont, Bioproducts
and Chinook's Motions for Summary Judgment are denied; Defendant UCB's
Motion for Summary Judgment is granted. An appropriate order will
accompany this Memorandum Opinion.
Pending before the Court are the motions for summary judgment filed by
defendants Bioproducts, Inc. ("Biproducts"); DuCon, DCV, Inc., DuCoa
("DuCoa"); E.I. DuPont De Nemours and Company ("DuPont"); Chinook Group
Limited and Chinook Group, Inc. ("Chinook"); and UCB S.A., UCB, Inc. and
UCB Chemicals Corporation ("UCB") seeking judgment on the issue of
plaintiff's "all-vitamins conspiracy" claim. After reviewing the motions
papers, as well as the entire record in this case, it is hereby
ORDERED that the motions for summary judgment are
DENIED as to defendants Bioproducts, DuCoa, DuPont, and
Chinook. It is further
ORDERED that the motion for summary judgment is
GRANTED as to defendant UCB.