Opinion
NO. CIV-02-0528-HE.
July 27, 2007
ORDER
Plaintiff Champagne Metals ("Champagne"), an aluminum distributor or "service center" sued seven other service centers — Ken-Mac Metals, Inc. ("Ken-Mac"), Samuel, Son Co., Ltd., Samuel Specialty Metals, Inc. (collectively "Samuel"), Metalwest, LLC, Integris Metals, Inc. ("Integris"), Earle M. Jorgensen Co. ("EMG"), and Ryerson Tull, Inc. ("Ryerson") (collectively the "Established Distributors"). The plaintiff claims the defendants violated Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, by engaging in a horizontal group boycott, violated the Oklahoma Antitrust Reform Act, 79 Okla. Stat. § 203[ 79-203], by unreasonably restraining trade, and tortiously interfered with its business and contractual relationships. Summary judgment was previously entered in the defendants' favor on all claims, but that decision was reversed in part on appeal. Renewed motions for summary judgment have been filed by the defendants, which must be considered, together with the parties' evidence, under the guidelines set forth by the Tenth Circuit in Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073 (10th Cir. 2006). As the facts have been stated in detail in the Tenth Circuit's opinion, the court will not repeat them, except as necessary to explain its conclusions.
Ryerson Tull and Integris, which has been acquired by Ryerson, are now known as Ryerson Inc.
The decision was affirmed with respect to the plaintiff's claim that the defendants had unilaterally violated the Oklahoma Antitrust Act, its state law claim of tortious interference with its relationship with Ormet Corporation, one of the mills, and its tortious interference claim against EMJ. The appellate court also affirmed the exclusion of the report and testimony of one of Champagne's expert witnesses.
The court allowed the parties to file their briefs and the record under seal. To the extent this opinion cites to sealed portions of the briefs and record, those portions are unsealed.
Briefly summarized, the plaintiff claims the Established Distributors conspired "to attempt to keep a new, aggressive entrant out of the market," Champagne Metals, 458 F.3d at 1086, by threatening to move their business from the mills that sold them aluminum, if those mills dealt with Champagne.
1. The Sherman Act Claim
The parties stipulated at the Oct. 5, 2006, status conference that if the federal antitrust claim survives summary judgment, so will the state antitrust claim.
Agreement
The defendants contend the plaintiff's Sherman Act claim fails because the plaintiff cannot demonstrate the existence of an agreement among the defendants that unreasonably restrained trade. As "[t]he essence of a claim of violation of Section 1 of the Sherman Act is the agreement itself," Champagne Metals, 458 F.3d at 1082, the court initially must decide "whether the circumstantial evidence, viewed through the lens of a highly plausible economic theory, and combined with Champagne's direct evidence, creates a genuine issue of material fact as to the existence of a conspiracy." Id. at 1087. The crux of the issue is whether the plaintiff has presented evidence "that tends to exclude the possibility that the alleged conspirators acted independently." Id. at 1085. The defendants claim Champagne has only cited instances of purely unilateral, parallel conduct on their part, in addition to what the Tenth Circuit termed as "weak direct evidence" of a conspiracy. Id. at 1084. This, they argue, is insufficient to show they entered into an illegal agreement. The court concludes otherwise."[U]nilateral conduct, regardless of its anti-competitive effects, is not prohibited by § 1 of the Sherman Act." Abraham v. Intermountain Health Care Inc., 461 F.3d 1249, 1256 (10th Cir. 2006) (internal quotation marks omitted). Concerted action also cannot "be inferred merely from the existence of complaints." Id. at 1259. However, because the alleged conspiracy is economically rational, "restrictions on the inferences drawn from Champagne's circumstantial evidence are not warranted." Champagne Metals, 458 F.3d at 1085. See Abraham, 461 F.3d at 1257 ("`[I]f the claim is one that simply makes no economic sense — [a plaintiff] must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary.'") (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The evidence of an agreement is not overwhelming, but, "constru[ing] all facts and reasonable inferences in a light most favorable to the nonmoving party," Champagne Metals, 458 F.3d at 1078 (internal quotation marks omitted), and considering the testimony and exhibits before it cumulatively, the court finds sufficient evidence from which a reasonable jury might infer the defendants acted in concert to pressure the mills not to supply aluminum to Champagne or designate it a "recognized distributor."
Here, unlike the situation in Abraham, the plaintiff is not relying "solely on circumstantial evidence to prove concerted action." Abraham, 461 F.3d at 1257.
There is considerable evidence that controverts the plaintiff's conspiracy claim, e.g. plaintiff's Exhibit 68 demonstrating that "Commonwealth's increased sales to Champagne were accompanied by increased purchases from Commonwealth by Integris, VMG and Rasco." Integris' reply brief, p. 2.
In reaching its decision, the court has heeded the Tenth Circuit's statement:
[W]e emphasize the Supreme Court's admonition in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), that individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. . . . [A] piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence.Champagne Metals, 458 F.3d at 1081 at n. 6 (quoting Bourjaily, 483 U.S. at 179-80).
This evidence includes the quick succession of events that occurred after Champagne Metals was formed — EMJ's refusal to sell the plaintiff its cut-to-length line, after its initial agreement to do so; Commonwealth's refusal to fill the plaintiff's orders, despite its initial agreement to do so; the pressure Commonwealth's major service center customers put on the mill to refuse to recognize or sell to Champagne; Ravensworth Aluminum and Kaiser Aluminum's refusal to sell aluminum to Champagne, and Samuel's offer to buy the company. Additional evidence consists of the circumstances surrounding the plaintiff's attempt to gain recognition by Ormet Corporation in late 2001; the evidence of contact among defendants (Phil Wiley and Debbie Veale's statements), the repeated anti-competitive statements/actions taken by the defendants; a strong motive for the defendants to conspire; and the testimony from the defendants' industry expert, John Campbell, that he could not point to a new service center other than Champagne that had achieved mill recognition within the last ten years. See Rossi v. Standard Roofing, Inc., 156 F.3d 452, 456 (3rd Cir. 1998). See generally Mitchael v. Intracorp, Inc., 179 F.3d 847, 859 (10th Cir. 1999) ("While consciously parallel behavior may contribute to a finding of antitrust conspiracy, it is insufficient, standing alone, to prove conspiracy. Such parallel behavior may, however, support the existence of an illegal agreement when augmented by additional evidence from which an understanding among the parties may be inferred. Such evidence may include a showing that the parties are acting against their own individual business interests, or that there is motivation to enter into an agreement requiring parallel behavior.") (citation and internal quotation marks omitted).
In its reply brief, EMJ denies an agreement to sell existed, citing deposition testimony of Mike Champagne, which is included in an appendix submitted with its reply. It is improper for a party to submit new evidence in a reply brief. (Apparently the evidence was included with EMJ's original summary judgment motion, but not its renewed motion. See reply, p. 4). Nonetheless, the court has considered the testimony and finds the evidence does not negate the existence of an agreement to sell Champagne the line.
Bill Thomas, a former Commonwealth employee who now works for Champagne, testified that he "assumed that Jorgensen would not object to Commonwealth Aluminum or other mills selling to Champagne, and that other established distributors would have little or no objection because of their previous lack of interest in serving the horse trailer industry. I talked to my manager at Commonwealth, Terry Wirta, and we agreed that selling mill finish and painted aluminum coil to Champagne should work out for Commonwealth because it did not appear we would be taking business from established distributorships." Plaintiff's response brief, Exhibit D, ¶ 14.
The parties agreed at the October 5, 2006, status conference that the non-deposition statements of mill representatives were admissible for summary judgment purposes, eliminating the need for the court to determine whether they are admissible as co-conspirator hearsay. See Champagne Metals, 458 F.3d at 1080-81 n. 6.
"Champagne introduced evidence that the Established Distributors saw Champagne as a price-cutting competitor who threatened their market share and profit margins." Champagne Metals, 458 F.3d at 1086.
The court has carefully considered the record submitted to insure that sufficient evidence of each defendant's participation in the alleged conspiracy exists to allow the plaintiff's Sherman Act claim against them to proceed to a jury.
See plaintiff's Exhibit A, ¶ 31.
Defendant EMJ argues that the plaintiff's antitrust claim against it is barred because of the lack of evidence that it engaged in any act in furtherance of the conspiracy within the limitations period. However, as there is evidence of anticompetitive actions committed by EMJ's alleged coconspirators within the statutory period that suffices to bind it, regardless of its own conduct.
Viewing all the evidence cumulatively and in the light most favorable to the plaintiff, the court finds Champagne has shown the existence of a genuine issue of fact as to whether the Established Distributors entered into a conspiracy.
Unreasonable restraint of trade
As the plaintiff has established, for summary judgment purposes, the existence of an agreement, the court must now determine whether the alleged restraint of trade is unreasonable.Diaz v. Farley, 215 F.3d 1175, 1182 (10th Cir. 2000) (The Sherman Act "generally precludes only restraints [of trade] that are unreasonable."). Two main analytical approaches are used to determine whether a defendant's conduct unreasonably restrains trade — the per se rule and the rule of reason. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 457-58 (1986) ("a restraint may be adjudged unreasonable either because it fits within a class of restraints that has been held to be 'per se' unreasonable, or because it violates what has come to be known as the `Rule of Reason'"); Rossi v. Standard Roofing, Inc., 156 F.3d 452, 461 (3rd Cir. 1998). While the per se rule treats certain categories of restraints as necessarily illegal, under the rule of reason "`the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.'" Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705, 2712 (2007) (quotingContinental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977). " Per se analysis is reserved for `agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.'" Diaz, 215 F.3d at 1182 (quoting Northwest Wholesale Stationers, Inc. v. Pacific Stationery Printing Co., 472 U.S. 284, 289 (1985). Accord Leegin, 127 S.Ct. at 2713 ("Resort to per se rules is confined to restraints that would always or almost always tend to restrict competition and decrease output.") (internal quotation marks omitted). "Classic group boycotts involving conspirators whose market position are horizontal to each other and who `cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete,' are generally per se illegal under § 1." Full Draw Productions v. Easton Sports, Inc., 182 F.3d 745,750 (10th Cir. 1999) (quotingNorthwest Wholesale, 472 U.S. at 294). See Leegin, 127 S.Ct. at 2713 (included among the restraints that are per se unlawful are horizontal agreements among competitors to fix prices or to divide markets).
The Tenth Circuit did not determine whether the plaintiff's antitrust claim should be analyzed under the rule or reason or treated as a per se claim as the district court did not rule on the issue and the appellate record was insufficient to permit the court to address it. Champagne Metals, 458 F.3d at 1090 n. 17 1092 ("However, even assuming Champagne's collective action claim merits per se treatment. . . .").
Not all group boycotts or horizontal restraints of trade are judged, however, under a per se standard. Diaz, 215 F.3d at 1182. "The decision to apply the per se rule turns on whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output or instead one designed to increase economic efficiency and render markets more, rather than less, competitive." Northwest Wholesale, 472 U.S. at 289-90 (internal quotation marks omitted).
The defendants contend that the per se rule does not apply as the plaintiff cannot show either that they possess dominant market power or cut off access to a supply necessary to enable the plaintiff to compete. The defendants argue that dominant position in the relevant market and exclusive control are essential elements of a per se violation. The plaintiff responds that what the defendants refer to as requirements for per se consideration are merely traits often possessed by typical per se cases. These traits become relevant, the plaintiff contends, when the challenged conduct involves legitimate cooperative activity. The plaintiff asserts that cases requiring a showing of market power, like Northwest Wholesale, all involve organizations with "obvious pro-competitive aspects," such as professional associations, industry self-regulating entities, trade associations, sports leagues, health care facilities and joint ventures.
Although the plaintiff challenges the defendants reference to "dominant" market power, the Tenth Circuit has required a showing that a defendant "hold a dominant position in a relevant market." Diaz, 215 F.3d at 1183.
There is authority to support the plaintiff's position, see Rossi, 156 F.3d at 463-64, and in Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959) the Supreme Court applied the per se standard to a group boycott despite the absence of any claim of market power. However, "[i]n Northwest Wholesale, the Supreme Court clarified its earlier language from Klor's." Diaz, 215 F.3d at 1182. "There, the court stated that unless the defendants in a group boycott situation `possess market power or exclusive access to an element essential to effective competition, the conclusion that expulsion [of the plaintiff] is virtually always likely to have an anticompetitive effect [thereby invoking a per se analysis] is not warranted.'" Id. at 1182-83 (quoting Northwest Wholesale, 472 U.S. at 296.
The court accords less significance to Full Draw, 182 F.3d at 745, a case relied on by the plaintiff, as the Tenth Circuit was considering the sufficiency of the complaint, not the evidence required to permit the case to proceed to trial. The same distinction applies to the recent decision of the Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), referenced in the supplemental submissions of the parties.
Northwest Wholesale did involve a wholesale purchasing cooperative which was "not a form of concerted activity characteristically likely to result in predominantly anticompetitive effects." Northwest Wholesale, 472 U.S. at 295. Similarly, Diaz, a Tenth Circuit decision in which the three factors discussed in Northwest Wholesale were applied to determine whether the challenged agreements "merited per se condemnation under the antitrust laws," involved a health care facility. Diaz, 215 F.3d at 1180. However, the Tenth Circuit did not apply the factors in Diaz because of the type of organization being sued, but rather found that to be an additional consideration — "the fact that the conduct at issue in this case concerns decisions relating to health care presents a further reason why we should be caution in applying a per se test." Id. at 1184. The court will, therefore, proceed to consider the Northwest Wholesale factors in determining the applicable analysis. See Indiana Fed'n of Dentists, 476 U.S. at 458 ("As we observed last Term . . . the category of restraints classed as group boycotts is not to be expanded indiscriminately, and the per se approach has generally been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor. . . .").
The Tenth Circuit cited Diaz in Champagne Metals, stating in the case parenthetical that the case explained that the determination of whether a group boycott claim is to be judged under a per se or rule of reason standard requires examination of the market power and exclusive access factors, plus whether plausible arguments exist that justify the challenged conduct. Champagne Metals, 485 F.3d at 1090 n. 17.
The defendants claim they lack market power because they compete with "a wide variety of sources," including both service centers and mills, which make 60% of sales to end-users. They also point to Judge Cauthron's finding that the barriers to entry in their industry are low, as additional support for their claimed lack of substantial market power. Their lack of control over an element essential to the plaintiff's ability to compete is evidenced, they assert, by Champagne's success — a doubling of revenues from 1997-2002.
Contrary to the defendants' assertion, defendants' renewed motion, p. 39, the Tenth Circuit did not make that finding. See infra pp. 13-14.
The fact that the plaintiff has been able to compete at some level does not preclude its antitrust claim or its analysis under a per se standard. See generally Northwest Wholesale, 472 U.S. at 294 ("Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle." (emphasis added) (internal quotation marks omitted)); Klor's, 359 U.S. at 210 (court considered whether Sherman Act prohibited "a group of powerful business men" from acting "in concert to deprive a single merchant, like Klor, of the goods he needs to compete effectively .") (emphasis added).
Again, the court is confronted with a difficult issue. Nonetheless, it concludes the record includes sufficient evidence to create a justiciable question as to whether the defendants collectively possess market power or a "dominant position in the relevant market." Northwest Wholesale, 472 U.S. at 294. E.g., Plaintiff's Exhibit 30, pp. 32-33; Exhibit 35, p. 13-14; Exhibit 61; Exhibit 71. See Toys "R" Us v. FTC, 211 F.3d 928, 936 (7th Cir. 2000) (term "dominant," as used in phrase "dominant position in the market" is "an undefined term, but plainly chosen to stand for something different from antitrust's term of art "monopoly"). See generally Indiana Fed'n of Dentists, 476 U.S. at 460-61 ("Since the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition, proof of actual detrimental effects, such as a reduction of output, can obviate the need for an inquiry into market power, which is but a surrogate for detrimental effects.) (internal quotation marks omitted). That market power, when combined with the lack of a plausible argument justifying the alleged boycott, merits per se review of the plaintiff Section 1 claim. See id. at 458 ("the per se approach has generally been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor");Rossi, 156 F.3d at 464; I ABA Section of Antitrust Law, Antitrust Law Developments 48 (5th ed. 2002) (per se rule is appropriate if the alleged conduct "on balance, would always or almost always result in anticompetitive effects"). See generally Leegin, 127 S.Ct. at 2717 ("A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful."). As the court has concluded that the plaintiff's "collective action merits per se treatment," Champagne Metals, 458 F.3d at 1092, the alleged restraint is conclusively presumed to be unreasonable. See I ABA Section of Antitrust Law, Antitrust Law Developments 50 (5th ed. 2002) ("Under the per se rule, a restraint is conclusively presumed unreasonable without elaborate inquiry as to the precise harm [it has] caused. . . .") (internal quotation marks omitted).
The Supreme Court has observed that "`there is more confusion about the scope and operation of the per se rule against group boycotts than in reference to any other aspect of the per se doctrine.'" Northwest Wholesale, 472 U.S. at 294 (quoting Lawrence A. Sullivan, Handbook of the Law of Antitrust 229-30 (1977).
Citing Shoppin' Bag of Pueblo, Inc. v. Dillon Cos., Inc., 783 F.2d 159, 161-62 (10th Cir. 1986), the defendants assert in their reply brief that the plaintiff has failed to address most of the factors relevant to market power. However, that case was evaluating the evidence necessary to show the market power required to establish a Section 2 violation of the Sherman Act, 15 U.S.C. § 2, not a per se violation of Section 1, as was Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887,893 (10th Cir. 1991), also cited by the defendants.
Here, unlike the situation in Diaz, the plaintiff has provided the court with some basis for determining how significantly the alleged agreement has affected its ability to compete in the relevant market.
The defendants offer no justification for their alleged conduct — no "`plausible arguments that they were intended to enhance overall efficiency and make markets more competitive.'" Diaz, 215 F.3d at 1183 (quoting Northwest Wholesale, 472 U.S. at 294). Instead, they attempt to discount the significance of this factor.
The plaintiff also has submitted evidence showing that the defendants deprived the plaintiff of access to multiple mills, which it needed to compete successfully. See Klor' s, 359 U.S. at 209-10; Rossi, 156 F.3d at 464 ("Rossi has adduced evidence that GAF product was, if not unique, then at least necessary for him to compete in the marketplace.").
See supra note 13.
Ken-Mac argues that it could not have been part of any per se conspiracy because it does not compete in the same market with Champagne Metals. However, the court finds the plaintiff has proffered sufficient evidence that the two were competitors to preclude entry of summary judgment in Ken-Mac's favor. E.g., plaintiff's Exhibit 23, p. 29.
Antitrust injury and Damages
Even if the plaintiff can establish an illegal agreement, its antitrust claim nonetheless fails, the defendants assert, because Champagne cannot prove an antitrust injury — a necessary component of a Sherman Act claim. See Medical Supply Chain, Inc. v. General Elec. Co., 144 F.App'x 708, 714 (10th Cir. 2005) ("[E]ven where a per se violation of 15 U.S.C. § 1 is involved, a plaintiff must still show that it suffered an antitrust injury."). The defendants argue that the plaintiff has not suffered an antitrust injury because the Tenth Circuit "has already ruled that Champagne failed to demonstrate an adverse effect on overall competition." Defendants' renewed motion, p. 42.
Medical Supply Chain, Inc. is an unpublished decision cited for persuasive value only under 10th Cir. R. 36.3(B).
In the context of discussing whether the plaintiff had shown the unilateral harm to competition required to establish its state unilateral antitrust claim, the Tenth Circuit stated that the plaintiff had not pointed to "evidence of an actual barrier to entry created by the Established Distributors' unilateral conduct." Id. at 1093. However, the court proceeded to state: "We do not mean to imply that there might not be other evidence of injury to competition to be found in this case's voluminous record; we note only that Champagne fails to point to any such evidence on appeal." Id. at 1093 n. 21.
While the plaintiff's expert had testified that the defendants' threats deterred other investors from entering the service center business in the relevant market, his testimony was not a part of the record, the appellate court having upheld its exclusion by the trial court.
The defendants also argue that, even if the plaintiff was able to demonstrate a barrier to entry, that would negate its antitrust injury, as it would benefit from decreased competition. The flaw in that argument is the plaintiff claims that because of the alleged barrier, it is, and has been since it started, at a competitive disadvantage and is not an "existing competitor in the market." Defendants' renewed motion, p. 43 n. 10.
Because "the antitrust laws were enacted for the protection of competition not competitors," Full Draw, 182 F.3d at 754 (internal quotation marks omitted), the question is whether "the instant case is . . . one in which it is alleged that competition fell prey to a competitor," rather than "one in which it is alleged that a competitor fell prey to competition." Id. The court finds the plaintiff has met its burden of producing evidence, including the deposition testimony of Krausse and his affidavit, demonstrating that, as a result of the defendants' anticompetitive acts, there were significant barriers to entry in the aluminum service center industry, which caused the plaintiff damage.
As is discussed subsequently, the court did not consider what the defendants identify in their motion to strike as new information contained in the Krausse affidavit.
See Champagne Metals, 458 F.3d at 1088 n. 15 ("These injuries stemmed from the denial of recognition of Champagne by the mills-denials that Champagne alleges were prompted by the pressure put on the mills by the Established Distributors. . . . Thus, the Established Distributors are incorrect to say that Champagne's evidence shows it suffered no injury from acts within the limitations period.").
The defendants also contend that the plaintiff lacks admissible evidence showing that it sustained damages resulting from the defendants' conduct. They challenge the plaintiff's proof of loss, asserting that critical defects in its damages model requires its exclusion, along with the testimony of the plaintiff's expert, Mr. Wilsey, who prepared it. The defendants assert that the model includes damages that allegedly were incurred outside the four year limitations period and that the estimated loss is speculative and unreliable. The plaintiff responds that it advised the court at the status conference that its damages report would have to be revised and the court indicated that it would determine whether the damages calculations could be changed after the summary judgment motions were decided.
The plaintiff has accurately reported part of the court's statements at the status conference. However, the court also advised the defendants that they could submit a summary judgment motion on damages if it was dispositive. As the court has not determined if the plaintiff will be allowed to revise the expert report on which the defendants' motion is based, it is premature to consider the defendants' contention that the plaintiff's antitrust claim fails for lack of admissible evidence of loss. The defendants may reurge that aspect of their motion once the court decides if the plaintiff is bound by its expert's initial submissions.
As the court has concluded the plaintiff has demonstrated that material questions of fact exist as to whether the defendants conspired to engage in an unreasonable restraint of trade, the defendants are not entitled at this time to summary judgment on the plaintiff's state or federal antitrust claims.
As mentioned, the defendants are not precluded from reurging their motion insofar as it pertains to the proof of loss issue, if appropriate, after the court decides if the plaintiff may revise its expert's report.
2. The Tortious Interference Claim
The defendants also seek summary judgment on the plaintiff's tortious interference with contract claim, which is asserted against all defendants but EMJ. In their joint brief they allot little space to address this claim, simply stating that it fails because Champagne lacks sufficient evidence of anticompetitive conduct. Integris argues in its individual motion that the plaintiff has no evidence that it or its predecessors unlawfully interfered with the plaintiff's relationship with third persons and that the claim is deficient because "throughout the limitations period Commonwealth sold `as much as it could' to Champagne," Integris' reply, p. 8. Ken-Mac asserts that the plaintiff has failed to identify a single incident of its alleged interference with the plaintiff's relationship with Commonwealth and does not mention it in the section of its response brief discussing that claim. Finally, Metalwest argues that there is no evidence that it engaged in any "independently wrongful means to interfere with Champagne's relationships with Commonwealth." Metalwest's motion, p. 23.The Tenth Circuit stated in Champagne Metals that if the plaintiff "can show evidence of anticompetitive conduct, it can, by definition, show wrongful conduct in support of its interference with business relations claim." Champagne Metals, 458 F.3d at 1095. The plaintiff's evidence of a conspiracy and anticompetitive conduct suffices to demonstrate all elements of the plaintiff's tortious interference claim against all the defendants except for the element of damages. Because of uncertainty regarding the plaintiff's expert's report — Champagne's proof of loss — the court has yet to decide if the plaintiff has demonstrated that its profitability and growth were affected by the defendants' alleged anticompetitive conduct. As that aspect of the plaintiff's case will be addressed subsequently, the defendants' motions, insofar as they pertain to the plaintiff's tortious interference claim, will be denied at this time.
Motion to Strike
The defendants also filed a motion to strike the affidavits attached to the plaintiff's response brief. The court completely disregarded the affidavit of Alvin Wyatt and disregarded the portions of the remaining affidavits that contained new information that was not part of the original summary judgment record. Therefore, the motion to strike is moot.
Accordingly, having found the plaintiff's evidence suffices to create material questions of fact as to Champagne's federal and state antitrust claims and its tortious interference with contract claim, the defendants' renewed motions for summary judgment [Doc. Nos. 420, 425, 427, 428, 430, 431, 432] are DENIED. Their motion to strike [Doc. #458] is DENIED as being MOOT.
On or before, August 27, 2007, the parties are directed to have an in person meeting of (at least) counsel to discuss (a) an agreed resolution of this case, including, if agreement is not reached initially, whether some type of ADR might be beneficial in resolving the case and (b) any legal, scheduling or other issues remaining. On or before September 4, 2007, the parties are directed to file a joint status report which shall include (a) a report as to the in person conference, including when and where it was held, who attended for each party, and any agreements reached, (b) identification of any remaining legal or other issues necessary to be resolved prior to trial, and (c) a proposed (jointly, if possible) scheduling plan for the balance of the case. If, after diligent effort, a joint proposal cannot be achieved, the respective positions of the parties on the scheduling or other issues should be set forth in the report.
This case is set for a pretrial conference on Thursday, September 6, 2007, at 1:30 p.m. , in Courtroom No. 304, Oklahoma City, Oklahoma. The parties should be prepared to address, in addition to scheduling concerns, any remaining legal or other issues appropriate for pretrial resolution.