PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1345

___________

VALSPAR CORPORATION;

VALSPAR SOURCING, INC.,

 Appellant

v.

E. I. DU PONT DE NEMOURS AND COMPANY

__________

On Appeal from the United States District Court 

for the District of Delaware

(D.C. No. 1-14-cv-00527)

District Judge: Honorable Richard G. Andrews

___________

Argued March 9, 2017

Before: HARDIMAN and KRAUSE, Circuit Judges,

and STENGEL,

* Chief District Judge.

(Filed: September 14, 2017)

 

* The Honorable Lawrence F. Stengel, Chief United 

States District Judge for the Eastern District of Pennsylvania, 

sitting by designation.
2

James M. Lockhart [Argued]

James P. McCarthy 

Kathryn E. Wendt 

Lindquist & Vennum

80 South 8th Street

2000 IDS Center

Minneapolis, MN 55402

Frederick L. Cottrell, III

Jason J. Rawnsley

Chad M. Shandler

Richards Layton & Finger

920 North King Street

One Rodney Square

Wilmington, DE 19801

Counsel for Plaintiffs-Appellants

Randa Adra

Crowell & Moring

590 Madison Avenue

20th Floor

New York, NY 10022

Clifton S. Elgarten

Shari R. Lahlou [Argued]

Benjamin C. Wastler

Crowell & Moring

1001 Pennsylvania Avenue, N.W.

Washington, DC 20004
3

Kathleen F. McDonough

John A. Sensing

Potter Anderson & Corroon

1313 North Market Street

Wilmington, DE 19801

Counsel for Defendant-Appellee

Richard M. Brunell

American Antitrust Institute

Suite 1100

1730 Rhode Island Avenue, N.W.

Washington, DC 20036

Counsel for American Antitrust Institute as Amicus 

Curiae in support of Plaintiff-Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge

This appeal involves an alleged conspiracy to fix prices 

in the titanium dioxide industry in violation of Section 1 of the 

Sherman Act. Appellant Valspar, a purchaser of titanium 

dioxide, claimed Appellee DuPont conspired with other 

titanium dioxide suppliers to fix prices. Valspar argued that the 

price-fixing agreement was made manifest primarily by thirtyone parallel price increase announcements issued by the 

suppliers. DuPont countered that the parallel pricing was not 

the product of an agreement, but rather the natural consequence 

of the marketplace. Specifically, DuPont posited that because 

the market for titanium dioxide is an oligopoly, the price 
4

movement was caused by “conscious parallelism”—an 

economic theory that explains oligopolists will naturally 

follow a competitor’s price increase in the hopes that each 

firm’s profits will increase. The District Court agreed with 

DuPont and granted its motion for summary judgment. We will 

affirm. 

I

The facts of this case were essentially undisputed in the 

District Court. The parties agree that the market for titanium 

dioxide is an oligopoly. Titanium dioxide is a commodity-like 

product with no substitutes, the market is dominated by a 

handful of firms, and there are substantial barriers to entry. 

Valspar, a large-scale purchaser of titanium dioxide, 

alleges that a group of titanium dioxide suppliers conspired to 

increase prices. It claims that the conspiracy began when 

DuPont—the largest American supplier—joined the Titanium 

Dioxide Manufacturers Association (TDMA) in 2002, when 

the association opened participation to non-European 

companies. Shortly after joining the TDMA, DuPont 

announced a price increase. Within two weeks, DuPont’s price 

increase was matched by Millennium, Kronos, and Huntsman 

(other TDMA members and members of the alleged 

conspiracy). This began what Valspar alleged to be the 

“Conspiracy Period”— twelve years during which the alleged 

conspirators announced price increases 31 times. 

Valspar claims the conspiracy ended in late 2013 when 

DuPont exited the TDMA. According to Valspar’s 

calculations, the conspirators inflated the cost of titanium 

dioxide by an average of 16%. Because Valspar purchased 

$1.27 billion of titanium dioxide from DuPont during the 
5

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

million. 

II

In 2010, a class of titanium dioxide purchasers filed a 

price-fixing action against the suppliers in the United States 

District Court for the District of Maryland. Valspar opted out 

of that class and the remaining defendant suppliers settled the 

case after they were denied summary judgment. See In re 

Titanium Dioxide Antitrust Litig., 959 F. Supp. 2d 799, 832 (D. 

Md. 2013). Valspar then filed its own claim in the United 

States District Court for the District of Minnesota, which was 

subsequently severed. Valspar settled all claims except this one 

against DuPont, which was transferred to the United States 

District Court for the District of Delaware, where DuPont 

moved for summary judgment. Although presented with

“substantially the same record . . . as in the Maryland Class 

Action,” the District Court reached a “different conclusion.” 

Valspar Corp. v. E.I. Du Pont De Nemours, 152 F. Supp. 3d 

234, 252 (D. Del. 2016). Reviewing the record and our Court’s 

precedents, the District Court found that “evidence of an actual 

agreement to fix prices” was “lacking.” Id. at 253. Reasoning 

that such evidence is necessary for a plaintiff to survive 

summary judgment, the District Court granted DuPont’s 

motion. Id. 

III

The District Court had jurisdiction under 28 U.S.C. § 

1331. We have appellate jurisdiction under 28 U.S.C. § 1291. 

Our standard of review is intertwined with substantive antitrust 
6

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

reviewing the applicable law.

A

Section 1 of the Sherman Act prohibits “[e]very 

contract, combination in the form of trust or otherwise, or 

conspiracy, in restraint of trade.” 15 U.S.C. § 1. Unlike § 2 of 

the Sherman Act, which addresses monopolization and other 

illegal unilateral conduct, § 1 applies only when there is an 

agreement to restrain trade; so a single firm’s independent 

action, no matter how anticompetitive its aim, does not 

implicate § 1. Monsanto Co. v. Spray-Rite Serv. Corp., 465 

U.S. 752, 761 (1984). While some offenses under § 1 are 

reviewed for reasonableness, Leegin Creative Leather Prods., 

Inc. v. PSKS, Inc., 551 U.S. 877, 885–86 (2007), others have 

no possible competitive virtue and are therefore per se illegal, 

Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 

19–20 (1979). Horizontal price fixing (i.e., price fixing among 

competitors) is one such per se violation because it is a “threat 

to the central nervous system of the economy.” United States 

v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59 (1940). 

Oligopolies pose a special problem under § 1 because 

rational, independent actions taken by oligopolists can be 

nearly indistinguishable from horizontal price fixing. This 

problem is the result of “interdependence,” which occurs 

because “any rational decision [in an oligopoly] must take into 

account the anticipated reaction of the other firms.” In re Flat 

Glass Antitrust Litig., 385 F.3d 350, 359 (3d Cir. 2004) 

(alteration omitted) (quoting Philip E. Areeda & Herbert 

Hovenkamp, Antitrust Law 207 (2d ed. 2000)). In a market 

with many firms, “the effects of any single firm’s price and 

output decisions ‘would be so diffused among its numerous 
7

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

(quoting Areeda & Hovenkamp, supra, at 206). The opposite 

is true in an oligopoly, where any price movement “will have 

a noticeable impact on the market and on its rivals.” Id.

(quoting Areeda & Hovenkamp, supra, at 206); see also In re 

Text Messaging Antitrust Litig., 782 F.3d 867, 875 (7th Cir. 

2015) (oligopolists “watch each other like hawks”).

This “oligopolistic rationality” can cause 

supracompetitive prices because it discourages price 

reductions while encouraging price increases. A firm is 

unlikely to lower its price in an effort to win market share 

because its competitors will quickly learn of that reduction and 

match it, causing the first mover’s profits to decline and a 

subsequent decline in the overall profits of the industry. Flat 

Glass, 385 F.3d at 359. Similarly, if a firm announces a price 

increase, other market participants will know that “if they do 

not increase their prices to [the first-mover’s] level, [the firstmover] may be forced to reduce its price to their level. Because 

each of the other firms know this, each will consider whether 

it is better off when all are charging the old price or [the new 

one]. They will obviously choose [the new price] when they 

believe that it will maximize industry profits.” Id. (quoting 

Areeda & Hovenkamp, supra, at 207–08). 

The Supreme Court has explained that this behavior 

does not violate antitrust laws. See Brooke Grp. Ltd. v. Brown 

& Williamson Tobacco Corp., 509 U.S. 209, 227 (1993). Even

though such interdependence or “conscious parallelism” harms 

consumers just as a monopoly does, it is beyond the reach of 

antitrust laws for two reasons. First, some courts and scholars 

theorize “that interdependent behavior is not an ‘agreement’ 

within the term’s meaning under the Sherman Act.” Flat Glass, 

385 F.3d at 360 (citing Donald F. Turner, The Definition of 
8

Agreement Under the Sherman Act: Conscious Parallelism 

and Refusals to Deal, 75 Harv. L. Rev. 655, 663–65 (1962)).

And second, “it is close to impossible to devise a judicially 

enforceable remedy for ‘interdependent’ pricing.” Clamp-All 

Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 484 (1st Cir. 

1988) (Breyer, J.). The problem is this: “How does one order a 

firm to set its prices without regard to the likely reactions of its 

competitors?” Id.

B

“When faced with whether a plaintiff has offered 

sufficient proof of an agreement to preclude summary 

judgment, a court must generally apply the same summary 

judgment standards that apply in other contexts.” Flat Glass, 

385 F.3d at 357. Accordingly, a court will enter summary 

judgment when the evidence shows “no genuine dispute as to 

any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). As in other summary 

judgment contexts, we “review the record as a whole and in the 

light most favorable to the nonmovant, drawing reasonable 

inferences in its favor.” In re Chocolate Confectionary 

Antitrust Litig., 801 F.3d 383, 396 (3d Cir. 2015). 

However, we have recognized there is “an important 

distinction” to this general standard in antitrust cases. Flat 

Glass, 385 F.3d at 357. “[A]ntitrust law limits the range of 

permissible inferences from ambiguous evidence in a § 1 

case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 588 (1986). Specifically, “conduct as consistent with 

permissible competition as with illegal conspiracy does not, 

standing alone, support an inference of antitrust conspiracy.” 
9

Id.1 The reason for this more rigorous standard is that mistaken 

inferences are especially costly in antitrust cases, since they 

 

1 As Valspar and our dissenting colleague point out, 

Matsushita involved an alleged conspiracy that did not make 

“economic sense,” 475 U.S. at 587, and the Court declined to 

draw liberal inferences because the defendants “had no rational 

economic motive to conspire,” id. at 596. While these unlikelyto-succeed conspiracies provide one good reason to be 

circumspect in our inferences, we have explained that 

oligopolistic interdependence provides another good reason for 

inferential modesty. See Flat Glass, 385 F.3d at 358

(“[D]espite the absence of the Matsushita Court’s concerns, 

this Court and others have been cautious in accepting 

inferences from circumstantial evidence in cases involving 

allegations of horizontal price-fixing among oligopolists.” 

(emphasis added)); Chocolate, 801 F.3d at 397 (explaining that 

“despite the facial plausibility of the Plaintiff’s theory and the 

circumstantial evidence supporting it, we must be 

cautious. . . . [since] the U.S. chocolate market is a textbook 

example of an oligopoly and we cannot infer too much from 

mere evidence of parallel pricing among oligopolists” (citation 

omitted)).

While the dissent’s interpretation of Matsushita is 

reasonable, it is contrary to Third Circuit jurisprudence. In 

Chocolate, we held that a plaintiff in an oligopoly case must 

provide inferences that show that the alleged conspiracy is 

“more likely than not.” 801 F.3d at 412. And in Flat Glass, we 

considered and rejected the dissent’s more limited reading of 

Matsushita by acknowledging that some scholars think our 

extension of Matsushita is “an unfortunate misinterpretation” 
10

could penalize desirable competitive behavior and “chill the 

very conduct the antitrust laws are designed to protect.” Id. at 

594.2

With those principles informing our analysis, this Court

has developed specialized evidentiary standards at summary 

judgment in antitrust cases in general and in oligopoly cases in 

particular. Our analysis often begins with evidence of parallel 

price movements. See Chocolate, 801 F.3d at 397. In nonoligopolistic markets, “[p]arallel behavior among competitors 

is especially probative of price fixing because it is the sine qua 

non of a price fixing conspiracy.” Southway Theatres, Inc. v. 

Ga. Theatre Co., 672 F.2d 485, 501 (5th Cir. Unit B 1982). But 

in an oligopolistic market, parallel behavior “can be a 

necessary fact of life,” In re Baby Food Antitrust Litig., 166 

F.3d 112, 122 (3d Cir. 1999), and “[a]ccordingly, evidence of 

conscious parallelism cannot alone create a reasonable 

 

of that case while nonetheless continuing our “circumspect 

approach.” 385 F.3d at 359 & n.9 (citation omitted).

2

If a plaintiff provides direct evidence, then the 

“strictures of Matsushita [do] not apply.” Petruzzi’s IGA 

Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 

1233 (3d Cir. 1993). That is because “no inferences are 

required from direct evidence to establish a fact and thus a 

court need not be concerned about the reasonableness of the 

inferences to be drawn from such evidence.” Id. Valspar’s 

appeal does not involve direct evidence of conspiracy, and 

such evidence is rare in price-fixing cases. See In re Plywood 

Antitrust Litig., 655 F.2d 627, 633 (5th Cir. 1981) 

(“[S]olemnized covenants to conspire are difficult to come by 

in any price fixing case.”). 
11

inference of a conspiracy,” Chocolate, 801 F.3d at 398. 

Therefore, to prove an oligopolistic conspiracy with proof of 

parallel behavior, that evidence “must go beyond mere 

interdependence” and “be so unusual that in the absence of an 

advance agreement, no reasonable firm would have engaged in

it.” Baby Food, 166 F.3d at 135.

Because proof of parallel behavior will rarely itself 

create an inference of conspiracy, a plaintiff will often need to 

“show that certain plus factors are present” in order “[t]o move 

the ball across the goal line.” Chocolate, 801 F.3d at 398–99. 

“Plus factors are proxies for direct evidence because they tend 

to ensure that courts punish concerted action—an actual 

agreement.” Id. (internal formatting and citations omitted). 

“Although we have not identified an exhaustive list of plus 

factors, they may include (1) evidence that the defendant had a 

motive to enter into a price fixing conspiracy; (2) evidence that 

the defendant acted contrary to its interests; and (3) evidence 

implying a traditional conspiracy.” Id. at 398. 

While normally all three plus factors are weighed 

together, in the case of oligopolies the first two factors are 

deemphasized because they “largely restate the phenomenon 

of interdependence.” Flat Glass, 385 F.3d at 360. Put another 

way, “[e]vidence of a motive to conspire means the market is 

conducive to price fixing, and evidence of actions against selfinterest means there is evidence of behavior inconsistent with 

a competitive market.” Chocolate, 801 F.3d at 398. Since those 

qualities are intrinsic to oligopolies, we instead focus on the 

third plus factor: “evidence implying a traditional conspiracy.” 

Flat Glass, 385 F.3d at 360 (citation omitted). To meet this 

factor, we require “proof that the defendants got together and 

exchanged assurances of common action or otherwise adopted 

a common plan even though no meetings, conversations, or 
12

exchanged documents are shown.” Id. at 361 (citations 

omitted).3

 

3 Valspar seems to argue that proof of a tacit agreement

among the suppliers—that is, an awareness that they were 

engaging in conscious parallelism—should suffice to meet this 

factor. We disagree. While tacit agreements remain illegal 

under § 1, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 

(2007), the third plus factor requires evidence implying 

traditional (i.e., explicit) conspiracy. See Flat Glass, 385 F.3d 

at 361 (requiring proof of an “actual, manifest agreement not 

to compete” (citation omitted)). As a practical matter, tacit 

conspiracy and conscious parallelism are difficult to 

differentiate, if such differentiation is possible at all. See 

Andrew Gavil, Antitrust Law in Perspective: Cases, Concepts, 

and Problems in Competition Policy 311 (2d ed. 2008) (“[The] 

boundary between tacit agreements—to which Section 1 

applies—and parallel pricing stemming from oligopolistic 

interdependence” is not clear.); George A. Hay, Horizontal 

Agreements: Concept and Proof, 51 Antitrust Bull. 877, 894–

95 & n.46 (2006) (theorizing how to distinguish between a tacit 

agreement and oligopolistic interdependence—“[i]f that can be 

done”—while noting that the distinctions might totally be lost 

on a jury). We have tried to eradicate this confusion by placing 

emphasis on the third plus factor and requiring “traditional 

conspiracy” evidence. See Flat Glass, 385 F.3d at 360–61. In 

other words, we realized that the type of evidence that might 

prove a “tacit” conspiracy (e.g., motive, actions against selfinterest, parallel behavior, etc., Interstate Circuit v. United 

States, 306 U.S. 208, 225–28 (1939)) in the context of 

oligopolies can be unhelpfully equivocal, and thus decided to 

focus on evidence generally required to show an explicit, 
13

After evaluating the evidence through our plus factor 

analysis, we then assess whether, “[c]onsidering the evidence 

as a whole,” it is “more likely than not [that the defendants]

conspired to fix prices.” Chocolate, 801 F.3d at 412.4 This 

Court has at times employed different approaches for sifting 

through the proffered evidence. Compare Flat Glass, 385 F.3d 

363–69 (summarizing all of plaintiff’s evidence without 

editorializing, and then performing an “Analytical Summary”

 

manifest agreement. Moreover, the sort of proof that would 

generally count towards proving a tacit conspiracy is largely 

accounted for in different parts of our oligopoly summary 

judgment framework. See Baby Food ̧166 F.3d at 121–23, 130 

(considering parallel pricing before the plus factors); Flat 

Glass, 385 F.3d at 360 (considering actions against selfinterest and motive as part of first two plus factors). Although 

we do not rule out the possibility that evidence of a tacit 

agreement could suffice to meet this factor when a plaintiff also 

offers non-economic evidence of a traditional conspiracy—for 

example, when Company A proposes a parallel price increase 

to Company B, and Company B does not explicitly agree but 

then follows suit when Company A raises its prices, see

Interstate, 306 U.S. at 222—economic evidence alone cannot 

demonstrate a tacit agreement under our oligopoly cases.

4 While the dissent wonders what it will “now take for 

a plaintiff relying on circumstantial evidence to move the ball 

across the goal line,” Dissent at 6, the above precedents already

resolve that question. Namely, the plaintiff’s inferences must 

show that conspiracy is “more likely than not.” Chocolate, 801 

F.3d at 412. That may be a high bar—but it is the bar 

established by this Court and binding on this panel. 
14

to decide whether the body of evidence made conspiracy more 

likely than not), with Chocolate, 801 F.3d at 403–12 (looking 

at individual groupings of evidence to see whether any 

“supported an inference of conspiracy,” id. at 408, and then 

taking a holistic view of the evidence in context and 

determining that “it does not tend to exclude the possibility that 

[defendants] acted lawfully,” id. at 412). Whatever method is 

used, the bottom line is that “a plaintiff relying on ambiguous 

evidence alone cannot raise a reasonable inference of a 

conspiracy sufficient to survive summary judgment,” 

Chocolate, 801 F.3d at 396, but—like in all other summary 

judgment cases—that evidence must be viewed in the context 

of all other evidence, Big Apple BMW, Inc. v. BMW of N. Am., 

Inc., 974 F.2d 1358, 1364–65 (3d Cir. 1992).

IV

We now turn to the evidence of record, which we will 

evaluate in light of the principles just outlined. We first 

consider the parallel pricing evidence, then move to evidence 

under the plus factors, and finally consider the record in toto.

A

1

Valspar bases its case primarily on the 31 parallel price 

increase announcements issued by the competitors during the 

alleged conspiracy, arguing that it is “inconceivable” that, on 

31 occasions, the competitors “conduct[ed] independent 

analyses . . . [and] nearly simultaneously arrived at identical 

price increase amounts to be implemented on exactly the same 

day.” Valspar Br. 37.
15

Valspar’s argument fails for two reasons. First, its 

characterization of the suppliers’ price announcements 

neglects the theory of conscious parallelism and flies in the 

face of our doctrine that in an oligopoly “any rational decision 

must take into account the anticipated reaction of the other . . . 

firms.” Baby Food, 166 F.3d at 122 (emphasis added) 

(citations omitted).5 Thus, DuPont does not claim that the 

competitors’ numerous parallel price increases were discrete 

events—nor could it do so with a straight face. But it doesn’t 

need to. The theory of interdependence recognizes that price 

movement in an oligopoly will be just that: interdependent. 

And that phenomenon frequently will lead to successive price 

increases, because oligopolists may “conclude that the industry 

as a whole would be better off by raising prices.” Chocolate, 

801 F.3d at 397.6

 

5

Indeed, this same mistake pervades Valspar’s 

argument. As the District Court aptly explained, Valspar 

generally “neglects the theory of interdependence.” Valspar, 

152 F. Supp. 3d at 248. For example, despite the central role 

“conscious parallelism” and “interdependence” play in our 

oligopoly caselaw, each of those phrases appear only once in 

Valspar’s opening brief. 

6 Valspar also notes that the suppliers’ executives 

denied engaging in “follow the leader pricing.” Valspar Br. 15. 

Essentially, Valspar is arguing that we should infer a 

conspiracy from this potential pretext. That argument fails 

under our caselaw because “pretextual reasons are insufficient 

to create a genuine issue of fact without other evidence 

pointing to a price-fixing agreement.” Chocolate, 801 F.3d at 
16

Second, Valspar does not engage this Court’s 

demanding rule that in order to raise an inference of conspiracy 

on this point, it was required to show that the suppliers’ parallel 

pricing went “beyond mere interdependence [and was] so 

unusual that in the absence of advance agreement, no 

reasonable firm would have engaged in it.” Baby Food, 166 

F.3d at 135. Valspar never cites this important controlling 

precedent, nor does it attempt to show how it might be met. 

Apart fromValspar’s failure to carry its burden, DuPont 

demonstrates that “market realities . . . clearly controvert 

[Valspar’s] contention” that these announcements are evidence 

of a conspiracy. Id. at 131. First, supply contracts in the 

titanium dioxide industry contained price-protection clauses

requiring a notice period to customers before a price increase, 

meaning that if a supplier failed to match a competitor’s

announcement, it was foregoing the possibility of negotiating 

a price increase during that period. These industry-wide 

contractual provisions made the benefit of matching a price 

increase announcement high and the risk minimal: if a 

competitor later undercut that price in an effort to take market 

share, the supplier could refrain from implementing the price 

increase or even respond by lowering its price. Second, DuPont 

demonstrated that the market for titanium dioxide remained 

competitive despite the frequent price increase 

announcements. Indeed, Valspar employees testified that it 

was “very common” to negotiate away a supplier’s attempt to 

increase price, DuPont Br. 6, and said that “[o]ften . . . an 

aggressive supplier would be interested in achieving more 

volume and would come in and offer a [lower] price,” id. at 9.

 

411 (alterations omitted) (quoting Miles Distribs. v. Specialty 

Constr. Brands, Inc., 476 F.3d 442, 452 (7th Cir. 2007)). 
17

Across all suppliers’ attempted price increases, Valspar was 

able to avoid that increase (or even negotiate a decrease) onethird of the time. Thus, Valspar’s characterization of this 

evidence is controverted by market realities; “aggressive” and 

“common” price competition between firms is inconsistent 

with the idea that those same firms have conspired not to 

compete on price.7

2

Valspar also advances the related argument that the 

flurry of price announcements reflects a drastic change from 

pre-conspiracy behavior in the titanium dioxide market. A 

change in industry practices must be “radical” or “abrupt” to 

“create an inference of a conspiracy.” Chocolate, 801 F.3d at 

410 (citation omitted). Valspar claims to have met this standard 

because there were only three parallel price increase 

announcements before the alleged conspiracy period (as 

compared to the thirty-one during the conspiracy period). 

 

7 Thus, the circumstances here are different than those 

in Flat Glass, where we stated that “[a]n agreement to fix 

prices is a per se violation of the Sherman Act even if most or 

for that matter all transactions occurred at lower [than list]

prices.” 385 F.3d at 362 (citation and alteration omitted). Here, 

we find significant not just that actual prices occurred below 

announced prices, but that actual prices occurred below 

announced prices because alleged conspirators frequently 

undercut other members of the alleged conspiracy. We are 

mindful that a “failed attempt to fix prices” is illegal, id. at 363, 

but it is likewise significant that the alleged conspirators 

behaved contrary to the existence of a conspiracy. 
18

We disagree. In Chocolate, the plaintiffs advanced a 

similar argument, relying on an increased frequency in parallel 

pricing activity from pre-conspiracy behavior. There, we 

explained that “the focus of the Plaintiffs’ argument is unduly 

narrow” because “[h]istorically, parallel pricing in the U.S. 

chocolate market has not been at all uncommon.” Chocolate,

801 F.3d at 410. Here too, public parallel price increase 

announcements are “consistent with how this industry has 

historically operated.” Valspar, 152 F. Supp. 3d at 252 

(quoting Chocolate, 801 F.3d at 410). Similarly, when other

courts have found a radical or abrupt change to indicate 

conspiracy, that change has generally been more than just an 

uptick in frequency of a pre-established industry practice. See 

Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 935 (7th Cir. 2000) 

(group of toy distributors unanimously stopped dealing with 

warehouse clubs after years of that being an industry norm).

That logic rings particularly true in this context because “it is 

generally unremarkable for the pendulum in oligopolistic 

markets to swing from less to more interdependent and

cooperative.” Chocolate, 801 F.3d at 410 (citing Areeda & 

Hovenkamp, supra, at 229). 

B

Having found that the pattern of parallel price increases

does not raise an inference of conspiracy, we next turn to 

Valspar’s argument that the plus factors evidence a conspiracy. 

As explained above, this Court has developed a specialized 

rule that in oligopolistic markets, “‘the first two factors largely 

restate the phenomenon of interdependence,’ . . . [which] 

leaves traditional non-economic evidence of a conspiracy as 

the most important plus factor.” Chocolate, 801 F.3d at 398

(citation omitted). Tellingly, Valspar ignores this important 

point and instead emphasizes why the first two plus factors are 
19

met. Valspar’s “victory . . . is a hollow one,” however, having 

succeeded in showing interdependence but not conspiracy. Id. 

at 400.

1

The first factor relates to motive to enter a conspiracy, 

i.e., that “the market is conducive to price fixing.” Id. at 398. 

There is little doubt that this highly concentrated market for a 

commodity-like product with no viable substitutes and 

substantial barriers to entry was conducive to price fixing. 

The second plus factor looks for evidence of action 

against self-interest, i.e., “evidence that the market behaved in 

a noncompetitive manner.” Flat Glass, 385 F.3d at 361 

(citation omitted). Valspar presents evidence that there was “a 

16% overcharge” and that “price increases were not correlated 

to supply-and-demand principles.” Valspar Br. 57. While true, 

this is largely irrelevant because it ignores the fact that “firms 

in a concentrated market may maintain their prices at 

supracompetitive levels, or even raise them to those levels, 

without engaging in any overt concerted action.” Flat Glass, 

385 F.3d at 359.8

 

8 Although the first two plus factors may, at times, “do 

more than restate economic interdependence,” Flat Glass, 385 

F.3d at 361 n.12, Valspar has not shown that they do so here. 

For example, despite the dissent’s insistence to the contrary, 

there is no evidence of record showing “unilateral exchanges

of confidential price information,” which is one example of an 

action against self-interest that may not simply be a result of 

interdependence. See Dissent at 10 (quoting Flat Glass, 385 

F.3d at 361 n.12); see also infra Part IV-B-2 (discussing the 
20

Most of Valspar’s other economic expert evidence 

addresses the first two plus factors as well. See Flat Glass, 385 

F.3d at 361 (explaining that the third plus factor is where “noneconomic evidence” should be considered (emphasis added)). 

For example, Valspar notes that its expert “concluded there 

was economic evidence of ability to enforce their price-fixing 

agreement,” and “found from an economic point of view the 

markets were relatively stable.” Valspar Br. 41, 43. From 

findings like these, Valspar argues that “the district court 

should have accepted [the expert’s] economic conclusions”

that the competitors could not have acted independently. 

Valspar Br. 42. This gets things backwards. There is no dispute 

that the market was primed for anticompetitive 

interdependence and that it operated in that manner. Valspar’s 

expert evidence confirming these facts mastered the obvious.

9

 

information exchanges shown to have occurred between the 

suppliers). 

9

In addition, Valspar would have us give the expert’s 

conclusion an outsized role in the summary judgment analysis. 

While we have explained that a district court should not 

“impermissibly weigh[]” expert evidence by picking out 

“potential flaws,” Petruzzi’s, 998 F.2d at 1241, that does not 

mean that a district court is obligated to accept an expert’s legal 

conclusions, Dalberth v. Xerox Corp., 766 F.3d 172, 189 (2d 

Cir. 2014). Although Valspar’s expert, Dr. Williams,

concluded that its evidence excludes the inference that the 

competitors acted independently, that conclusion was based on 

predicates that are insufficient under our caselaw. For example, 

Dr. Williams took the type of evidence that we have said is of 

diminished value in the oligopoly context (i.e., parallel price 
21

2

We finally reach Valspar’s evidence under our third 

plus factor: traditional conspiracy evidence, where we look for 

“proof that the defendants got together and exchanged 

assurances of common action or otherwise adopted a common 

plan even though no meetings, conversations, or exchanged 

documents are shown.”10 Flat Glass, 385 F.3d at 361 (citation 

omitted). We approach the third plus factor as this Court did in 

Chocolate, first considering individual groups of evidence to 

see whether any raise an inference of conspiracy, before 

evaluating all of the proof in context. See 801 F.3d at 403–12. 

Here, we agree with the District Court that Valspar failed to 

raise an inference of conspiracy. Each strand of evidence is 

weaker than similar evidence in cases where this Court has 

 

movement and evidence best considered under the first two 

plus factors) and from there concluded that the suppliers had 

illegally conspired. The District Court was correct to reject this 

line of argument and note that the evidence from which the 

expert based his conclusions is “not necessarily . . . evidence 

of an agreement” under our oligopoly caselaw. Valspar, 152 F. 

Supp. 3d at 243. 

10 The dissent claims that we ignore this precedent and 

“required[] Valspar to present evidence of direct meetings and 

conversations.” Dissent at 20. Not so. There is no doubt that a

plaintiff can satisfy this plus factor with circumstantial 

evidence, but that circumstantial evidence must indicate the 

existence of an “actual, manifest agreement not to compete.” 

Flat Glass, 385 F.3d at 361 (citation omitted). While Valspar 

marshals circumstantial evidence of anticompetitive behavior, 

the record does not show the existence of an actual agreement. 
22

affirmed summary judgment in favor of companies that operate 

in an oligopolistic market. 

First, Valspar shows that DuPont and the other 

competitors took part in a data sharing program offered by the 

Titanium Dioxide Manufacturers Association. As part of this 

program (the Global Statistics Program, or GSP) the 

competitors provided production, inventory, and sales-volume 

data (but never price data) to the TDMA, which then 

aggregated, anonymized, and redistributed the data. 

Without citing any precedent to show why this type of 

information sharing was illegal, Valspar argues that the GSP 

allowed each conspirator to calculate its own market share and 

thus deduce whether it was getting its fair share of the 

conspiracy’s profits. This argument suffers from the loaded 

question fallacy. Instead of setting out to prove: “Does the GSP

show that a conspiracy existed?,” Valspar attempts to answer: 

“How did the GSP further the conspiracy?” This approach

cannot satisfy Valspar’s burden. “[A] litigant may not proceed 

by first assuming a conspiracy and then explaining the 

evidence accordingly.” Blomkest Fertilizer, Inc. v. Potash 

Corp. of Saskatchewan, 203 F.3d 1028, 1033 (8th Cir. 2000).

Moreover, our prior decisions undermine Valspar’s 

argument that the GSP supports an inference of conspiracy For 

example, in Baby Food, we affirmed summary judgment 

despite the fact that the alleged conspirators’ sales 

representatives had “exchang[ed] pricing information,” 

explaining that there was no evidence these exchanges had any 

effect over the companies’ final pricing decisions, 166 F.3d 

117, and observing, in any event, that “[t]he exchange of price 

data . . . can in certain circumstances increase economic 

efficiency and render markets more, rather than less, 
23

competitive.” Id. at 125 (quoting United States v. U.S. Gypsum 

Co., 438 U.S. 422, 443 n.16 (1978)). And in Flat Glass, the 

alleged conspirators each provided price data to a business that 

would use those inputs to set recommended prices for the 

industry. 385 F.3d at 355. The alleged conspirators knew how 

the recommended prices were calculated, so “were able to 

calculate backwards” and determine the price inputs used. Id.

at 370. We explained that although this would rightfully “raise 

suspicion,” the “publication of pricing information can have a 

pro-competitive effect” and, with little other evidence 

supporting the inference of a conspiracy, affirmed summary 

judgment on that claim. Id.

The data exchanged as part of the GSP looks innocuous 

when compared to the information in Baby Food and Flat 

Glass. The GSP aggregated and blinded “members’ monthly 

sales, production, and inventory data worldwide,” but never 

collected price information. Valspar Br. 47. Valspar arguesthat 

“the co-conspirators partially disaggregated the data to track 

individual firms.” Valspar Br. 48. But as the District Court 

noted, “the evidence provided by Valspar does not support this 

conclusion” and Valspar’s own expert conceded that the GSP 

merely allowed each firm to calculate its own market share. 

Valspar, 152 F. Supp. 3d at 245–46.

11

 

11 Additionally, the GSP most resembled a data 

collection program blessed by the Ninth Circuit in In re Citric 

Acid Litigation, where a centralized trade association 

“collected figures on production and sales from each of its 

members, audited this information on an annual basis, and 

produced statistics aggregated by country on citric acid 

production and sales.” 191 F.3d 1090, 1098 (9th Cir. 1999). 

That court called the program “wholly legal” and explained 
24

Relatedly, Valspar claims that the alleged conspirators 

“used the TDMA meetings to communicate their pricing plans, 

coordinate price increases, and confirm that each competitor 

would follow the leader on price increases.” Valspar Br. 50. 

Valspar’s argument essentially begins and ends with 

opportunity: the TDMA meetings brought the competitors 

together, so one should assume that they used the meetings to 

conspire. But as the District Court noted, “[t]here is no 

evidence that there was any discussion of prices during these 

meetings and certainly no evidence of an agreement.” Valspar, 

152 F. Supp. 3d at 246. Consequently, Valspar’s argument falls 

short under our precedents. Chocolate, 801 F.3d at 409 

(“[E]vidence . . . that the executives from the [alleged 

conspirators] were in the same place at the same time . . . is 

insufficient to support a reasonable inference of concerted 

activity.”); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. 

Co., 998 F.2d 1224, 1235 (3d Cir. 1993) (“Proof of opportunity 

to conspire, without more, will not sustain an inference that a 

conspiracy has taken place.” (citation omitted)). 

Next, Valspar suggests that the competitors used 

industry consultants as conduits to funnel information. For 

example, Valspar points to an e-mail from a Kronos employee

to a consultant noting that the employee had heard rumors of 

an impending Huntsman price increase, but thought it 

“sound[ed] weird” and wanted to know if the consultant could 

“confirm anything from [his] lofty position.” Valspar Br. 20. 

 

that it was “uncontested that these activities served the 

legitimate purpose of informing members of [market] 

conditions.” Id. 
25

This sort of inquiry to a consultant is not probative of 

conspiracy. We have explained that “it makes common sense 

to obtain as much information as possible of the pricing 

policies and marketing strategies of one’s competitors.” Baby 

Food, 166 F.3d at 126. In fact, this type of inquiry undermines 

the existence of a conspiracy because conspirators would have 

no need to ask consultants about the specifics of their own 

conspiracy. See Mayor & City Council of Balt., Md. v. 

Citigroup, Inc., 709 F.3d 129, 139 (2d Cir. 2013) (attempts to 

confirm future pricing plans of competitors “tend to suggest 

the absence of [competitor] communications” because if 

competitors were communicating directly they “would not 

have had to rely on third parties to confirm [each other’s]

strateg[ies]”). 

Valspar also emphasizes a selection of internal e-mails 

sent by the various competitors. For example, a DuPont e-mail 

advocated for a price modification “[o]nly if you are not 

undercutting a Kronos price increase!” Valspar Br. 9. A 

Millennium e-mail said: “We should have this extra [market] 

share—customers have been and want to buy this from us. 

Competitors will let us have this.” Id. at 8. And a Cristal e-mail 

stated that “all major global players have been very disciplined 

with pricing implementation up to this point.” Id. at 10. 

These e-mails are helpful to Valspar, but only 

superficially. They may raise some suspicion insofar as they 

indicate that something anticompetitive is afoot. But as we 

have explained, oligopolistic conscious parallelism is by 

nature anticompetitive and also legal. See Chocolate, 801 F.3d 

at 397. Essentially, these e-mails show that the competitors 

were aware of the phenomenon of conscious parallelism and 

implemented pricing strategies in response to it. It makes sense 

that each firm would implement such strategies, since 
26

conscious parallelism allows firms in an oligopoly to “in effect 

share monopoly power” and maintain “prices at a profitmaximizing, supracompetitive level.” Brooke Group, 509 U.S. 

at 227. To forbid firms in an oligopoly from considering 

conscious parallelism in its internal pricing decisions would be 

to require a firm to do the impossible: “set its prices without 

regard to the likely reactions of its competitors.” Clamp-All 

Corp., 851 F.2d at 484 (Breyer, J.).

This logic explains away most of Valspar’s concerns. 

For example, DuPont would not want to undercut a Kronos 

price increase, because doing so would result in Kronos

lowering its price and a concomitant decrease in profits for 

everyone. See Flat Glass, 385 F.3d at 359. Moreover, these 

same e-mails show that the competitors engaged in 

independent and contemporaneous internal deliberations. For 

example, a DuPont employee wrote: “From a testing 

perspective, it may be valuable to make the October 

announcement. If our competitors do follow, it sends a clear 

message to us that they are receiving/understanding our price 

increase messages . . . If they don’t, we would also learn how 

well we’ve trained them.” Valspar Br. 17 (emphases added).12

 

12 Although Valspar and the dissent contend that the 

competitors implemented their conspiracy through public 

announcements of their price increases, these e-mails reflect 

that, even if such “signalling” occurred, it was not in 

furtherance of any prior agreement. Had the competitors 

“got[ten] together and exchanged assurances of common 

action or otherwise adopted a common plan,” Flat Glass, 385 

F.3d at 361, there would have been no need for DuPont to 

resort to public announcements to “test” whether its 

competitors were “receiving/understanding [its] price increase 
27

And a Kronos employee wrote that it “hope[d] that Du[P]ont 

is smart enough not to undo what we have all done in the TiO2 

market by keeping some sort of discipline.” Id. at 10 (first 

alteration in original) (emphasis added). We have explained

that documents showing this type of internal deliberation may 

negate an inference of conspiracy. Baby Food, 166 F.3d at 131 

(rejecting plaintiff’s interpretation of a set of documents 

because “[c]ontemporaneous documents also show that [an 

alleged conspirator] made independent pricing decisions.”); 

Text Messaging, 782 F.3d at 873 (noting that nothing in the 

allegedly collusive e-mails “suggests that [the defendants] 

believed there was a conspiracy among the carriers”). 13

 

messages.” See Williamson Oil Co. v. Philip Morris USA, 346 

F.3d 1287, 1310 (11th Cir. 2003) (refusing to infer a 

conspiracy from signalling among oligopolists absent evidence 

that it was in furtherance of an agreement); Blomkest Fertilizer, 

Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028, 1037 

(8th Cir. 2000) (same).

13 The dissent reads these e-mails differently, arguing 

that they show the competitors (1) often “would not undercut 

one another’s prices [(2)] and that they were involved in an 

organization (i.e., cartel) controlling prices.” Dissent at 11

(emphasis added) (citation omitted). We agree with the first 

proposition, but that is a natural consequence of oligopolistic 

interdependence. See Flat Glass, 385 F.3d at 359. As for the 

second proposition, we do not see enough evidence in the 

record to support it. While the internal e-mails indicate that the 

suppliers knew their pricing decisions may be consciously 

parallel and that their collective interests would at times be

aligned, the e-mails do not evidence an explicit agreement to 
28

Finally, Valspar highlights a handful of inter-competitor 

sales at below market prices, arguing that those sales were used 

to redistribute gains and losses to maintain the alleged 

conspiracy. But looking to the specific facts present here, the 

District Court found that the sales were “just as consistent with 

non-collusive activity as with conspiracy.” Valspar, 152 F. 

Supp. 3d at 244. First, Valspar’s expert conceded that the sales 

were at such low volumes that they would not have resulted in 

large shifts of market share, thus largely defeating Valspar’s 

theory of profit redistribution. Second, Hurricane Katrina 

knocked out one of DuPont’s titanium dioxide plants so it was 

unable to meet all its internal demand for the product, requiring 

DuPont to purchase it from other firms. Importantly, these 

sales occurred at prices sometimes higher and sometimes lower 

than the average prices for non-defendants. And third, a 

number of these sales were made by DuPont to Kronos 

pursuant to a cross-licensing agreement in order to avoid patent 

litigation. After this licensing agreement ended, DuPont 

successfully negotiated a price increase. 

Valspar does not seriously dispute these explanations, 

but instead argues “[i]f one seller buys anything from another 

at nonmarket prices, then a resource transfer is made for which 

there is no reasonable, noncollusive explanation.” Reply Br. 21

(quoting Willam E. Kovacic et al., Plus Factors and 

Agreement in Antitrust Law, 110 Mich. L. Rev. 393, 423

(2011)). Valspar offers no case support for this proposition, but 

instead puts all its eggs in the basket of a single law review 

article. See id. But that law review article: (a) spends only one 

 

fix prices—and often show that such an agreement was 

lacking. 
29

paragraph on this theory; (b) cites no precedent or economic 

studies to support it; (c) recognizes that patent licensing and 

cross licensing can be legitimate; and (d) seems to limit its 

analysis to “interfirm transfers of resources that are largely 

void of productive unilateral motivations.” Kovacic, supra, at 

423. In the face of DuPont’s reasonable explanations to the 

contrary, we decline to give this isolated quotation the force of 

law. 

3

Having considered each piece of evidence individually 

and decided that none raises an inference of conspiracy, we 

must now consider the evidence as a whole.14 See Chocolate, 

801 F.3d at 412. To summarize, granting all legitimate 

inferences to Valspar, it presented evidence of: parallel price 

movement, internal e-mails showing an awareness of this 

parallel price movement, competitor participation in a trade 

association and statistics sharing program, inter-firm sales at 

 

14 Our dissenting colleague claims that, in the foregoing 

section, we went through “each individual piece of evidence 

and disregard[ed] it if we could feasibly interpret it as 

consistent with the absence of an agreement to raise prices.” 

Dissent at 19 (citation omitted). That misunderstands our mode 

of analysis. For the sake of coherence, we presented and 

discussed each piece of evidence separately, and found that no 

single piece on its own, made a conspiracy more likely than 

not. (After all, if a single piece of evidence made conspiracy

more likely than not, Valspar would survive summary 

judgment and our task would end.) We now consider the 

evidence together to determine whether the entire body of 

evidence—viewed in context—tips the scale in Valspar’s 

favor. 
30

below market prices, and use of industry consultants. In 

assessing this evidence, we look to this Court’s three cases 

examining alleged oligopolistic conspiracies at summary 

judgment: Chocolate and Baby Food, where summary 

judgment was granted, and Flat Glass, where summary 

judgment was partially denied.

First, Valspar did not offer any single form of evidence 

that would have gotten it close to showing that a conspiracy is 

more likely than not. Valspar emphasizes the pattern of parallel 

price announcements, but for the reasons explained, we don’t 

find them particularly persuasive. See supra Section IV-A-1, 

2. By comparison, in Chocolate and Baby Food, where 

summary judgment was granted in favor of the alleged 

conspirators, the plaintiffs’ cases were supported with far 

stronger lead evidence than present here. For example, the 

Chocolate plaintiffs established that the very same defendants 

had been part of a contemporaneous price-fixing conspiracy in 

Canada—to which one of the defendants had already pleaded 

guilty to the Canadian authorities. 801 F.3d at 393, 402. In 

Baby Food, the defendants had advance knowledge of each 

other’s planned price increases (or decisions not to raise prices) 

on several occasions. 166 F.3d at 119–20. And this pales in 

comparison to Flat Glass—our one case in which defendant’s 

motion for summary judgment was denied—where one of the 

defendant’s alleged co-conspirators confessed to “an agreed 

upon, across the board price increase for the entire United 

States” to the Department of Justice in an attempt to gain 

leniency. 385 F.3d at 363 (citation omitted). 

Just as Valspar’s lead evidence is weaker than that in 

our relevant cases, so too is its supporting evidence. For 

example, although Valspar alleges that the competitors may 

have swapped certain price information through the TDMA or 
31

consultants, there is no evidence that price information was 

ever voluntarily exchanged, and the information that allegedly 

was exchanged through these sources pales in comparison to 

what was shared in cases where we affirmed summary 

judgment to defendants. See supra Section IV-B-2. Likewise, 

the internal e-mails uncovered by Valspar look harmless next 

to those in our caselaw. First, all of the e-mails uncovered by 

Valspar were internal to each competitor, whereas in Baby 

Food there was regular communication between competitors. 

166 F.3d at 119–20. Moreover, there is nothing in the 

competitors’ e-mails to indicate that their pricing behavior was 

the result of an actual agreement (as opposed to conscious 

parallelism), unlike in Baby Food, 166 F.3d at 120 (referring 

to the competitors’ “truce”). And again, these e-mails do not 

approach those from Flat Glass, where one conspirator wrote 

that it was “monitoring the market to make sure that all stick to 

the rules” and admitted that one of the conspirators “assured 

me that they were fully supportive of the price increase 

proposition.” 385 F.3d at 366–67 (citations omitted). 

In sum, after reviewing the record as a whole, we 

conclude that the District Court did not err when it held that 

Valspar’s evidence did not meet our standard to survive 

summary judgment. 

C

One final point deserves mention. Valspar makes much 

of the District of Maryland litigation where summary judgment 

was denied on a materially similar record. It argues that 

“principles of comity and the doctrine of stare decisis should 

have given the Delaware court greater pause before reaching a 

decision in conflict with the Maryland Action.” Valspar Br. 61. 
32

Valspar’s argument has an obvious flaw: the District of 

Maryland sits within the United States Court of Appeals for the 

Fourth Circuit. See 28 U.S.C. § 41. Thus, the Maryland District 

Court had no obligation to consider Third Circuit precedent, 

but the District Court in this case was bound by it. This resulted 

in the Maryland court applying a standard quite different from 

the one we have developed and that the District Court applied.

Compare Valspar, 152 F. Supp. 3d at 240 (“A plaintiff relying 

on ambiguous evidence alone cannot raise a reasonable 

inference of conspiracy sufficient to survive summary 

judgment.” (quoting Chocolate, 801 F.3d at 396–97)), with 

Titanium Dioxide, 959 F. Supp. 2d at 824 (“[W]here ‘a plaintiff 

relies on ambiguous evidence to prove its claim, the existence 

of a conspiracy must be a reasonable inference that the jury

could draw from that evidence.’” (citing In re Publ’n Paper 

Antitrust Litig., 690 F.3d 51, 63 (2d Cir. 2012)). In light of 

Third Circuit precedent applying § 1 of the Sherman Act to 

oligopolies, the District Court did not err.15

 

15 Contrary to Valspar’s contention, our caselaw does 

not foreclose the possibility that a plaintiff can defeat summary 

judgment with only circumstantial evidence in the Section 1 

oligopoly context. That circumstantial evidence, however, 

must be non-economic evidence of an actual agreement 

between the conspirators, and not just a restatement of the 

interdependent economic conduct that we must accept in an 

oligopolistic marketplace. See Petruzzi’s, 998 F.2d at 1242 

(“mere consciously parallel behavior alone is insufficient to 

prove a conspiracy, [but] it is circumstantial evidence from 

which, when supplemented by additional evidence, an illegal 

agreement can be inferred.” (emphasis added)). As explained 
33

* * *

For the reasons stated, we will affirm the judgment of 

the District Court.

 

above, Valspar has not provided circumstantial non-economic 

evidence sufficient to support the inference of a conspiracy.
1

STENGEL, Chief District Judge, dissenting.

I respectfully dissent. 

The essential question here is whether thirty-one (31) 

parallel price increase announcements by a small group of 

suppliers over a ten (10) year period were mere coincidence 

(lawful and, in fact, expected in the world of oligopolies) or 

evidence of an agreement to fix prices (unlawful even among 

oligopolists). I think there are enough factual issues in this case 

that the question whether it was a lawful coincidence or an 

unlawful agreement should be decided by a jury.

The majority’s ruling creates an unworkable burden, not 

supported by our precedent, for plaintiffs seeking to prove a 

Sherman Act price-fixing case with circumstantial evidence. 

Second, it affirms a decision where a district judge weighed

and compartmentalized evidence, a task better suited for 

juries—not judges. 

An antitrust plaintiff may avoid summary judgment 

based upon circumstantial evidence alone. That concept is 

almost a legal axiom, yet it finds no home in the majority 

opinion. We have long held that a “plaintiff in a section 1 case 

does not have to submit direct evidence, i.e., the so-called 

smoking gun, but can rely solely on circumstantial evidence 

and the reasonable inferences drawn from such evidence.” 

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 

998 F.2d 1224, 1230 (3d Cir. 1993); see, e.g., In re Baby Food

Antitrust Litig., 166 F.3d 112, 124 (3d Cir. 1999) (“A plaintiff 

in a Section 1 conspiracy can establish a case solely on 

circumstantial evidence and the reasonable inferences to be 

drawn therefrom”). In other words, an antitrust plaintiff’s 
2

burden at summary judgment “is no different than in any other 

case.” Id. (quoting Big Apple BMW, Inc. v. BMW of N. Am., 

Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)); In re Chocolate

Confectionary Antitrust Litig., 801 F.3d 383, 396 (3d Cir. 

2015). Today’s opinion all but explicitly states that, now, “the 

so-called smoking gun,” Petruzzi’s, 998 F.2d at 120, is 

required.

As a general principle, “antitrust law limits the range of 

permissible inferences from ambiguous evidence in a § 1 

case,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 588 (1986), and conduct that is “as consistent with 

permissible competition as with illegal conspiracy” cannot, on 

its own, support an inference of an antitrust conspiracy, id.

(citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 

(1984)). 

This Court favors a sliding scale approach to determine

the types of inferences allowed to be drawn from 

circumstantial evidence in antitrust cases. According to our 

Circuit’s precedent, and that of the Supreme Court’s, the range 

of inferences that may be drawn from circumstantial evidence 

depends upon “the plausibility of the plaintiffs’ theory and the 

dangers associated with such inferences.” Chocolate, 801 F.3d 

at 396 (quoting In re Flat Glass Antitrust Litig., 385 F.3d 350,

357 (3d Cir. 2004)). In cases where an antitrust plaintiff’s 

economic theory of liability “makes no economic sense,” and 

drawing inferences in the plaintiff’s favor would deter healthy 

competition, the plaintiff must produce “more persuasive 

evidence” to bolster its claim. Id. On the other hand, when a 

plaintiff’s theory makes economic sense, courts draw more 
3

liberal inferences in favor of the plaintiff. Id. n.8.1 Valspar 

presented an economic theory that makes perfect economic 

sense, yet the District Court and majority did not draw any 

inferences in Valspar’s favor.

The majority performs a thorough analysis of the 

evidence of parallel conduct and the “plus factors.” Viewing 

all this evidence as a whole, I believe it clear that summary 

judgment was not proper in this case.

A. Parallel Conduct

It is true that conscious parallelism alone cannot create 

an inference of conspiracy. The majority has taken this to mean 

that any evidence of conscious parallelism is therefore 

incapable of raising an inference of conspiracy. This is 

incorrect. Parallel pricing is a necessary requirement of any § 

1 price-fixing claim, and simply because parallel pricing alone 

 

1 Based on this sliding scale approach—first articulated 

in Matsushita—courts have taken varying approaches to cases 

depending on the strength of the plaintiff’s theory. Compare

Matsushita, 475 U.S. at 588–91 (refusing to draw liberal 

inferences from plaintiffs’ “predatory pricing” theory, which 

posited that multiple companies conspired to lower prices, 

because a conspiracy to lower prices makes no economic 

sense), with Petruzzi’s, 998 F.2d at 1232 (drawing liberal 

inferences and reversing summary judgment because the 

plaintiff’s theory, that companies conspired not to compete 

with each other, made “perfect economic sense”), and Flat 

Glass, 385 F.3d at 358 (drawing liberal inferences in reversing 

summary judgment given that “an agreement among 

oligopolists to fix prices . . . makes perfect economic sense”).
4

cannot preclude summary judgment does not mean that courts 

ignore evidence of it. Indeed, our precedent has repeatedly 

warned against overlooking this important factor in these types 

of cases, especially where the plaintiff’s economic theory—as 

it does here—makes perfect economic sense.2

The sheer number of parallel price increase 

announcements in this case—31 to be exact—is 

unprecedented. Cf. Flat Glass, 385 F.3d at 369 (reversing 

summary judgment in case involving 7 parallel price increases 

in 5 years); Chocolate, 801 F.3d at 410 (3 parallel price 

increase announcements insufficient to withstand summary 

judgment, in part, because there was no “abrupt” or “radical” 

shift in pre-conspiracy conduct). While this sheer number, in 

itself, cannot carry the day for Valspar, the other evidence 

viewed in conjunction with these parallel price increase 

announcements can. 

This amount of parallel price increase announcements,

in a relatively short time period, commands attention. In Flat 

Glass, we considered the temporal proximity between the 

companies’ respective price increase announcements as 

evidence of an agreement to conspire. 385 F.3d at 364–67. 

Here, there is evidence that many of the manufacturers’ price 

increase announcements were made within hours, days, or 

 

2 We discuss the plausibility of Valspar’s economic 

theory in greater detail infra. For now, it is enough to say we 

have previously held that Valspar’s exact economic theory 

(parallel price fixing among oligopolists) makes perfect 

economic sense: “an agreement among oligopolists to fix 

prices at a supracompetitive level . . . makes perfect economic 

sense.” Flat Glass, 385 F.3d at 358. 
5

weeks of each other. For example, in one instance, DuPont 

announced a price increase at 11:00 a.m., Tronox matched it 

seven hours later, and Kronos matched it eight hours later. The 

next day, Millennium and Huntsman announced identical price 

increases. In another instance, all five TiO2 manufacturers 

made the same price increase announcement within a four-day 

period. This close timing creates a strong inference of 

conspiracy.

The unprecedented amount of parallel price increase 

announcements, while not dispositive, would undoubtedly 

raise red flags to any reasonable fact finder. Valspar’s theory 

of liability makes “perfect economic sense.” Chocolate, 801 

F.3d at 396. Accordingly, “more liberal inferences from the 

evidence,” which necessarily includes the 31 parallel price 

increase announcements, should be drawn. Id. The majority’s 

unwillingness to allow more liberal inferences in the plaintiff’s 

favor seems to me to be a mistake. Instead, the majority gave 

little weight to the amount of parallel price increase 

announcements simply because parallel conduct itself is 

insufficient to create an inference of conspiracy. This approach 

sees the trees, not the forest. See Flat Glass, 385 F.3d at 357 

(mandating courts analyze the evidence “as a whole” to 

determine whether “it supports an inference of concerted 

action”). 

Of course, “[f]or parallel pricing to go beyond mere 

interdependence, it must be so unusual that in the absence of 

an advance agreement, no reasonable firm would have engaged 

in it.” Baby Food, 166 F.3d at 135. With that said, it is 

undoubtedly a question of fact as to whether the parallel 

pricing in this case was sufficiently “unusual.” Id. No case to 

ever reach us has contained even half the amount of parallel 

price increase announcements present here—not to mention 
6

that many of them here were separated by mere days or hours.

This raises an obvious and serious question after today’s 

decision: What will it now take for a plaintiff relying on 

circumstantial evidence to move the ball across the goal line? 

The sheer amount of parallel conduct in this case, 

coupled with the plausibility of Valspar’s economic theory, 

should inform our analysis of the plus factors. Flat Glass, 385 

F.3d at 358 (“[A]n agreement among oligopolists to fix prices 

at a supracompetitive level . . . makes perfect economic sense” 

and therefore “more liberal inferences from the evidence 

should be permitted than in Matsushita because the attendant 

dangers from drawing inferences recognized in Matsushita are 

not present”); id. at n.8 (“Matsushita itself said little about 

proof requirements in a case where underlying structural 

evidence indicates that the offense is quite plausible” (quoting 

Herbert Hovenkamp, The Rationalization of Antitrust, 116 

HARV. L. REV. 917, 925–26 (2003))).

3

It did not. The majority 

paid very little mind to these distinctions—especially the 

plausibility of Valspar’s economic theory.

The majority’s formulation of the summary judgment 

 

3

I share the concern of the amicus—namely, that it 

would be an absurd result if, “in situations ‘in which the danger 

of [parallel pricing] is most serious,” liability would actually 

be “less likely.” Amicus Br. at 15 (quoting Louis Kaplow, 

Competition Policy & Price Fixing 126 (2015)). A plain 

reading of our case law reveals this Court never intended to 

ramp up a price-fixing plaintiff’s burden of proof, especially 

when the plaintiff’s economic theory makes perfect economic 

sense. Chocolate, 801 F.3d at 396–97; Flat Glass, 385 F.3d at 

358. In fact, courts must do the opposite in such a scenario by 

drawing liberal inferences in favor of the plaintiff. Id.
7

standard in this case, coupled with its dismissive treatment of

unprecedented parallel-conduct evidence, creates too high a 

hurdle for plaintiffs attempting to prove a price-fixing 

conspiracy using circumstantial evidence. The limitations in 

antitrust cases announced in Matsushita, and that we followed 

in Chocolate, were never meant to require something more 

than circumstantial evidence of an agreement to preclude 

summary judgment. Nor did they impose some “special” 

burden. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 

U.S. 451, 467 (1992); see Flat Glass, 385 F.3d at 359 n.9 

(“[U]nfortunately, many courts have read Matsushita as 

requiring a certain quantum evidence of verbal agreement 

before summary judgment can be avoided.” (quoting Herbert 

Hovenkamp, The Rationalization of Antitrust, 116 HARV. L.

REV. 917, 925 (2003))); see also Petruzzi’s, 998 F.2d at 1230 

(to create a genuine issue of material fact, the plaintiff “need 

not match, item for item, each piece of evidence proffered by 

the movant, but simply must exceed the ‘scintilla’ standard.”). 

The U.S. Supreme Court has gone so far as to caution 

against this kind of misapplication of Matsushita. In Eastman 

Kodak Co. v. Image Technical Services, Inc., it emphasized:

The Court’s requirement in Matsushita that the 

plaintiffs’ claims make economic sense did not 

introduce a special burden on plaintiffs facing 

summary judgment in antitrust cases. The Court 

did not hold that if the moving party enunciates 

any economic theory supporting its behavior, 

regardless of its accuracy in reflecting the actual 

market, it is entitled to summary judgment. 

Matsushita demands only that the nonmoving 

party’s inferences be reasonable in order to reach 

the jury, a requirement that was not invented, but 
8

merely articulated, in that decision. If the 

plaintiff’s theory is economically senseless, no 

reasonable jury could find in its favor, and 

summary judgment should be granted.

504 U.S. at 468–69 (footnote omitted). The Court in Eastman 

Kodak also expressed a preference to “resolve antitrust claims 

on a case-by-case basis, focusing on the particular facts 

disclosed by the record.” Id. at 467. This principle is 

particularly poignant here, where the “facts disclosed by the 

record” (i.e., 31 parallel price increase announcements) are 

strongly suggestive of an agreement to fix prices.

B. The Plus Factors

Although the majority recognizes there is no exhaustive 

list of plus factors, Flat Glass, 385 F.3d at 360, it considers 

only a few select plus factors and fails to consider others. There 

is no one plus factor that is “strictly necessary.” Id. at 361 n.12 

(quoting In re High Fructose Corn Syrup Antitrust Litig., 295 

F.3d 651, 655 (7th Cir. 2002) (Posner, J.)). The presence of 

certain plus factors does not automatically preclude summary 

judgment. Id.; see Petruzzi’s, 998 F.2d at 1242 (recognizing 

that a “wide range of circumstantial evidence can be used to 

establish needed plus factor”). 

While we often rely on the “big 3” plus factors (motive, 

actions contrary to interest, and traditional conspiracy), the 

plus-factor inquiry is not intended to be rigid or formulaic. Flat 

Glass, 385 F.3d at 361 n.12; Petruzzi’s, 998 F.2d at 1242.

There is a slew of other viable plus factors, including, among 

others: (i) fixed relative market shares; (ii) exchanges of price 

information; and (iii) price, output, and capacity changes at the 

formation of the cartel. See William E. Kovacic et al., Plus 
9

Factors and Agreement In Antitrust Law, 110 MICH. L. REV.

393, 415 (2011) (listing Posner’s “fourteen plus factors”); see 

also id. at 423 (recognizing that a company’s redistributions of 

gains and losses—or “true-ups”—are circumstantial evidence 

of a conspiracy); Richard A. Posner, Antitrust Law 87 (2d ed. 

2001) (recognizing “signaling” as a plus factor, especially 

when the announcement occurs before the actual 

implementation of the price increase).

The majority is correct that evidence of the first two plus 

factors may not always nudge the ball over the goal line for a 

plaintiff at summary judgment because they “often restate 

interdependence.” Flat Glass, 385 F.3d at 361. But this is not 

always the case. Because our approach to these cases is fluid, 

and we must not compartmentalize evidence, there are some 

cases where these two factors may not simply restate 

interdependence. Id. n.12. For instance, certain acts against 

self-interest (e.g., non-price acts against self-interest) “cannot 

simply be explained as a result of oligopolistic 

interdependence.” Id.

1. Motive to Enter Into a Conspiracy

Motive is “important to a court’s analysis, because [its] 

existence tends to eliminate the possibility of mistaking the 

workings of a competitive market . . . with interdependent, 

supracompetitive pricing.” Flat Glass, 385 F.3d at 361.

The majority mentioned only that evidence of motive 

often restates interdependence and thus does not create an

inference of concerted action. However, in Chocolate, cited 

often by the majority, we simply recognized that “evidence of 

motive without more does not create a reasonable inference of 

concerted action.” 801 F.3d at 298 (emphasis added). Here, 
10

there is much “more.” 

2. Actions Against Self-Interest

In the District Court, Valspar pointed to substantial

evidence that DuPont and the other manufacturers acted 

contrary to their self-interest. First, Valspar noted that TiO2 

prices rose despite no change in the TiO2 market. Second, 

Valspar argued that the market shares of the TiO2 

manufacturers remained relatively stable from 2002 to 2013. 

Third, Valspar relied on the fact that DuPont and the other 

manufacturers made intercompany sales to each other at 

below-market value. 

The District Court seemed not to heed Flat Glass’s 

pronouncement that “certain types of ‘actions against self 

interest’ may do more than restate economic interdependence.” 

385 F.3d at 361 n.12.4 The explicit examples cited in Flat Glass 

were “unilateral exchanges of confidential price information.” 

Id. Unilateral exchanges of confidential price information, like 

other non-price actions against self-interest, “cannot simply be 

explained as a result of oligopolistic interdependence.” Id. 

Valspar presented a triable issue of fact on this point below. 

There is evidence that the GSP allowed DuPont and the other 

manufacturers to gain confidential information about each 

other regarding supply, demand, inventory, and market share. 

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

 

4 The majority simply states, without consideration of 

the actual evidence, that “Valspar has not shown” that the first 

two plus factors “do more than restate the theory of 

interdependence.” Majority at 20 n.9. The actual evidence, 

discussed supra and infra, shows otherwise.
11

would be possible to “derive” each individual manufacturer’s 

production of TiO2 from the GSP data. Valspar also produced

evidence suggesting that the manufacturers collectively used 

industry consultant Jim Fisher as a conduit to share 

confidential information. Fisher attended an industry 

conference which the manufacturers—including DuPont—

attended. According to Fisher, at this conference the TiO2 

manufacturers “discussed the need to take advantage of tight 

market conditions to improve pricing.”5

The same actions contrary to self-interest that led the 

Seventh Circuit to reverse summary judgment in High 

Fructose are also present here. Areeda’s treatise recognizes 

this in identifying the type of oligopoly that may nonetheless 

be collusive: “there were numerous oral and some written 

statements by employees of the defendant to the effect that they 

had an understanding that they would not undercut one 

another’s prices and that they were involved in an organization 

(i.e. cartel) controlling prices.” Phillip E. Areeda & Herbert 

Hovenkamp, Antitrust Law ¶ 1431b, at 232 (3d ed. 2010) 

(citing High Fructose, 295 F.3d at 662). As in High Fructose, 

here there are numerous statements from the manufacturers’ 

employees (including DuPont) expressing an understanding 

that they “would not undercut one another’s prices” and that 

they were involved in an organization to control prices. Id. In 

one email, ironically, the DuPont author parrots Areeda’s 

above “undercut[ting]” language verbatim in advising others to 

modify pricing “[o]nly if you are not undercutting a Kronos 

price increase!!!!!” Cf. High Fructose, 295 F.3d at 662 

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

 

5

In re Titanium Dioxide Antitrust Litig., 959 F. Supp. 

2d 799, 812–13 (D. Md. 2013).
12

within the industry not to undercut each other’s prices” served 

as evidence of “an explicit agreement to fix prices” (Posner, 

J.)). Another email from a different competitor recognized that 

“all are still acting in a disciplined manner, respecting each 

other’s market positions and share and holding price.” 

There is no shortage of these emails, all of which 

support an inference that the TiO2 manufacturers were 

working together pursuant to an agreement to maintain price. 

There are further emails indicating that all the TiO2 suppliers 

were “on the bus,” that DuPont was “training” others on price, 

and that some of the suppliers were planning price increase 

announcements in order to allow other suppliers to “get on 

their horses.” In 2006, a DuPont executive went so far as to 

comment about another’s price increase: “the timing may be 

no coincidence – their reading of the CEFIC info like ours 

should give them confidence that NA [North American] price 

increases can be prosecuted despite the flat market.” This email 

is particularly probative of an agreement, given the DuPont 

executive’s recognition that they could continue to hike up 

prices even though demand was decreasing. See Flat Glass, 

385 F.3d at 358 (finding oligopolists “raising prices” indicative 

of a conspiracy when the price increases were made “absent 

increases in marginal cost or demand”).

The repetitive pattern of public price increase 

announcements is also a garden variety example of action 

against self-interest. When there is evidence that “the 

publication of wholesale price increases was intended to make, 

and has the effect of . . . ensuring competitors could quickly 

learn of, and respond to” these price increases, an inference of 

an agreement to fix prices arises. See Petroleum Prods. 

Antitrust Litig., 906 F.2d 432, 446–47 (9th Cir. 1990). A “price 

announcement given in the hope that rivals will follow” 
13

evinces an agreement if “repetition creates an expectation of 

such behavior.” Areeda & Hovenkamp, Antitrust Law ¶ 1422b, 

at 171 (3d ed. 2010); see id. (“Although . . . mere proof of 

interdependent pricing, standing alone, may not serve as proof 

of an antitrust violation, we believe that the evidence 

concerning the purpose and effect of price announcements, 

when considered together with the evidence concerning the 

parallel pattern of price restorations, is sufficient to support a 

reasonable and permissible inference of an agreement, whether 

express or tacit, to raise or stabilize prices.” (quoting 

Petroleum Prods., 906 F.2d at 446–47)).6

The majority relies heavily on the fact that not all of the 

co-conspirators’ parallel price increase announcements 

resulted in a sale at the actual announced price. Drawing a 

distinction between price increase announcements and actual 

 

6 Citing to one single DuPont email, the majority 

reasons that “[h]ad the competitors got[ten] together and 

exchanged assurances of common action or otherwise adopted 

a common plan, . . . there would have been no need for DuPont 

to resort to public announcements to ‘test’ whether its 

competitors were ‘receiving/understanding [its] price increase 

messages.” Majority at 29 n.14. While it may be possible to 

reach this conclusion by reading one email in isolation, the 

evidence as a whole creates a reasonable inference that there 

was more likely than not an agreement to fix prices. For 

example, evidence of the meetings between Fisher and all the 

alleged conspirators, as well as the actual meetings of top 

executives from Kronos and Huntsman (followed almost 

immediately by a parallel price increase announcement), as 

well as the conspirators all discussing “improving pricing” 

does create an inference of “a common plan.”
14

increases has been criticized by judges and scholars alike. 

Judge Posner has emphasized that “[i]n deciding whether there 

is enough evidence of price fixing to create a jury issue, a court 

asked to dismiss a price-fixing suit on summary judgment must 

be careful to avoid three traps.” High Fructose, 295 F.3d at 

661.

One of Judge Posner’s traps is “to distinguish between 

the existence of a conspiracy and its efficacy.” Id. at 656. In 

other words, arguing that although there was an agreement to 

fix prices, the goods were not actually sold at that price. Id. The 

majority does just that by relying on the fact that, often times, 

DuPont and the manufacturers sold TiO2 at a lower price than 

reflected in their initial parallel price increase announcements.

As explained by Areeda (who the majority cites frequently and 

whose opinions permeate Third Circuit antitrust 

jurisprudence), a “price announcement given in the hope that 

rivals will follow” evinces an agreement if “repetition creates 

an expectation of such behavior.” Areeda & Hovenkamp, 

Antitrust Law ¶ 1422b, at 171 (3d ed. 2010) (emphasis added).

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

Flat Glass, 385 F.3d at 362 (rejecting the argument that 

“regardless of the . . . list prices, . . . the prices at which flat 

glass producers actually sold their product to customers [] 

declined during the period of the alleged conspiracy” because 

“[a]n agreement to fix prices is . . . a per se violation of the 

Sherman Act even if most or for that matter all transactions 

occurred at lower prices” (citing High Fructose, 295 F.3d at 

656) (emphasis added)).

The majority fell into this trap. There is plenty of 

evidence, in the form of emails, that DuPont and the other TiO2 

manufacturers made price increase announcements “in the 
15

hope that rivals will follow.” Areeda & Hovenkamp, Antitrust 

Law ¶ 1422b, at 171. While this is not conclusive evidence of 

an agreement, the scale tips in favor of finding an agreement 

when there is “repetition” of such price increase 

announcements. Id. If nothing else, this case involves repetitive 

price announcements. This repetition clearly gave the suppliers 

“an expectation,” id., which is further illuminated by the 

drastic increase in parallel price increase announcements from 

2002 to 2013. These emails, in conjunction with the pattern, 

frequency, and effect of the price announcements, tend to 

exclude the possibility that the TiO2 manufacturers were 

acting independently. 

Valspar also presented evidence that DuPont and the 

other suppliers consciously maintained static market shares. 

Market share stability is a well-recognized symptom of 

collusive and concerted action in antitrust cases. See William 

E. Kovacic et al., Plus Factors and Agreement in Antitrust 

Law, 110 MICH. L.REV. 393, 415, 422 (2011).7 The logic is not 

difficult to understand: a company acting in a healthy, 

competitive, and self-interested manner would seek to 

expand—not maintain or decrease—its own market share.8

 

7 The majority criticizes Valspar’s reliance on legal 

scholarship as opposed to case law. This is interesting given 

that (1) this Court has long turned to legal scholarship to inform 

their decisions in antitrust cases involving oligopolists, and (2) 

the majority itself cites to legal scholarship—including 

multiple law review articles—seven times. 

8 For example, say Company A has a 30% market share 

in a particular industry and Company B has a 40% market share 

in that industry. Obviously, Company A and B, assuming they 
16

The District Court acknowledged this evidence. Instead of 

submitting it to the jury as a disputed question of fact, however, 

the District Court summarily concluded that this evidence did 

not show collusion because the TiO2 market is an oligopoly. 

Valspar Corp. v. E.I. Du Pont De Nemours, 152 F. Supp. 3d 

234, 242–43 (D. Del. 2016). The majority took the same 

approach. Just like the District Court, the majority weighed the 

expert evidence on this issue and made a finding: that the 

evidence of (likely unilateral) market share stability was 

insufficient in this case to show concerted action or agreement.

It seems to me that if the court is “weighing evidence” or 

“making findings” it should be at trial, on a full record and 

done by a fact finder, i.e., a jury or judge sitting without a jury.

Dovetailing with this evidence of static market shares is 

evidence that the TiO2 manufacturers made intercompany 

sales of TiO2, meaning they sold TiO2 to one another. This

evidence might indicate pure competition but for the fact that 

the manufacturers frequently sold the TiO2 to their 

competitors, at below-market prices. For example, when 

DuPont would sell Kronos TiO2, Kronos paid an average of 

16% less for the TiO2 than DuPont’s own customers did. 

DuPont also sold TiO2 to Millennium at below-market prices.9

One of Valspar’s experts, Dr. Williams, was able to identify 

 

are competitive, would want to acquire as much market share 

for themselves as possible. Therefore, it would defy all logic 

and notions of procompetitive behavior for Company A (who 

has a lower market share) to take affirmative actions to stay at 

30% rather than grow beyond a 30% market share.

9 Titanium Dioxide, 959 F. Supp. 2d at 814.
17

years of below-market sales between the TiO2 manufacturers. 

The majority downplays this evidence of below-market 

intercompany sales. It apparently considered these sales just as 

consistent with non-collusive activity as with conspiracy

because: (1) DuPont used some TiO2 in its own production in 

2005 and 2006; (2) a DuPont plant in Mississippi shut down 

for five months; and (3) DuPont’s sales to Kronos were 

governed by a patent settlement agreement from 2006 to 2008. 

The District Court, and the majority, found the volume of 

intercompany sales insufficient to constitute a “true-up.”10

The majority notes that the intercompany sales were 

low in number and unlikely to show an agreement. According 

to this logic, there is no evidence of a “true-up” because the 

intercompany sales were fairly low in quantity. Yet the very 

purpose of a “true-up” is for the companies within a cartel to 

maintain their market share. Therefore, it might not necessarily 

make sense for a company to make a large cross-sale, or a large 

number of cross-sales, in order to maintain its relative market 

share.11

 

10 A “true-up” occurs when companies in a conspiracy 

redistribute their individual gains and losses in order to comply 

with their conspiratorial agreement. Kovacic et al., Plus 

Factors, at 423. Such a transaction “leads to a strong inference 

of collusion” since there is “no reasonable noncollusive 

explanation” for intercompany sales at “nonmarket prices” 

between companies that are supposed to be competing with one 

another. Id.

11 To use another example, say Company A enjoys 35% 

of the market share, while Company B has 50% of the market 
18

Obviously, intercompany sales “could” be 

redistributions of gains or losses, Valspar, 152 F. Supp. 3d at 

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

However, these “coulds” and “mights” cast doubt on—not 

support—DuPont’s argument for summary judgment. Where 

there are reasonable inferences that there was more likely than 

not a conspiracy to fix prices, summary judgment is not 

proper.

12 The majority, like the District Court, accepted each 

 

share. Assume A and B are colluding and, thus, they want to 

raise prices and maintain market shares per their agreement. 

Then assume that Company A’s share drops to 33%. Company 

B may sell a very small amount of product to Company A 

simply to allow Company A to maintain its market share. 

Mistaking this as an insignificant sale, merely because of its 

size or lack of frequency, would be an oversight.

12 Federal Rule of Civil Procedure 56 states: “The court 

shall grant summary judgment if the movant shows that there 

is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Simply because courts must exercise caution in these types of 

cases does not do away with Rule 56’s proposition that genuine 

disputes of material fact preclude summary judgment: 

“Generally, the movant’s burden on a summary judgment 

motion in an antitrust case 

‘is no different than in any other case.’” Intervest, 340 F.3d at 

159. In these cases, courts still must deny summary judgment 

if there is a genuine dispute of material fact and “view the facts 

and any reasonable inferences drawn therefrom in the light 

most favorable to the party opposing summary judgment.” Id.

(emphasis added) (citing Eastman Kodak, 504 U.S. at 456). 

The majority did not do this. Also contrary to the majority’s 
19

of DuPont’s explanations of possibly conspiratorial conduct

and adopted each without much explanation. This approach 

should be unacceptable at the summary judgment stage. See 

Flat Glass, 385 F.3d at 368 (explaining we should not 

“consider each individual piece of evidence and disregard it if 

we could feasibly interpret it as consistent with the absence of

an agreement to raise prices”); Petruzzi’s, 998 F.2d at 1230 (to 

create a genuine issue of material fact, the plaintiff “need not 

match, item for item, each piece of evidence proffered by the 

movant, but simply must exceed the ‘scintilla’ standard.”);

Areeda & Hovenkamp, Antitrust Law § 14.03b, at 14–25 (4th 

ed. 2011) (plaintiffs need not “disprove all nonconspiratorial 

explanations for the defendants’ conduct” to prevail at 

summary judgment).

3. Traditional Conspiracy Evidence

Traditional conspiracy evidence is often the most 

important “plus factor” in a case like this one. Chocolate, 801 

F.3d at 401. Traditional conspiracy evidence is evidence that 

“the defendants got together and exchanged assurances of 

common action or otherwise adopted a common plan even 

though no meetings, conversations, or exchanged documents 

are shown.” E.g., id. at 398. Even though “no meetings, 

conversations, or exchanged documents” are required as direct

evidence of a conspiracy, DuPont urged us to require, in 

essence, exactly that. 

This Court has explicitly and repeatedly held that 

“traditional conspiracy” evidence may exist “even though no 

 

entire analysis, the “special consideration” and “caution” we 

apply in these types of cases informs—not supplants—the 

general guidelines found in Rule 56.
20

meetings, conversations, or exchanged documents are shown.” 

Chocolate, 801 F.3d at 398 (emphasis added); Superior 

Offshore Internat’l, Inc. v. Bristow Grp., 490 F. App’x 492, 

499 (3d Cir. 2012); Burtch v. Milberg Factors, Inc., 662 F.3d 

212, 227 (3d Cir. 2011); In re Ins. Brokerage Antitrust Litig., 

618 F.3d 300, 322 (3d Cir. 2010); Flat Glass, 385 F.3d at 361.

Yet the majority seems to require Valspar to present evidence 

of direct meetings and conversations. The majority reasoned 

that since “there is no evidence that there was any discussion 

of prices during these meetings and certainly no evidence of an 

agreement,” Valspar’s argument “falls short.” Maj. Op. at 21.

In reality, Valspar presented various forms of traditional 

conspiracy evidence. For example, Valspar presented a 

Millennium email stating “we have competition on board for 

the Oct 1 price increase announcement.”13 Having 

“competition on board” for a price increase announcement 

certainly conveys that the suppliers somehow got together and 

exchanged assurances of “common action,” i.e., to announce 

the same prices. Id. The same goes for the suppliers’ emails 

about the “collective needs” of the industry14 and getting 

everyone “on the bus” or, put another way, “on their horses.”

Today’s decision could easily be read to require direct 

evidence of an agreement in an oligopoly/antitrust case despite 

 

13 Titanium Dioxide, 959 F. Supp. 2d at 829.

14 The District Court read this to mean the “collective 

needs” of Millennium alone. However, read in the context of 

the entire email, a reasonable jury could certainly conclude the 

opposite: that the author was referring to the collective needs 

of the TiO2 industry members. 
21

the fact that neither our prior jurisprudence (nor the Supreme 

Court’s) has ever required such evidence. What’s more, it is 

not even correct to state that no meetings or conversations

between competitors took place. In 2004, the CEO of 

Millennium met with the President of Huntsman. The very next 

day, an internal Millennium email stated that they had 

“competition on board for the Oct 1 price increase 

announcement.” A few years earlier in 2002, DuPont 

announced a price increase a few days after Jim Fisher met 

with Kronos and then with DuPont. And if that wasn’t enough, 

according to Jim Fisher, the suppliers, at a meeting together,

“discussed the need to take advantage of tight market 

conditions to improve pricing.”15

I am not sure how this circumstantial evidence could be 

stronger. It unequivocally shows that one alleged conspirator’s 

(Millenium’s) CEO met with another alleged conspirator’s 

(Huntsman’s) President days before a parallel price increase 

announcement. This meeting occurred at the same time an 

email was written stating that TiO2 “competition” was “on 

board” with a particular price increase announcement. Even 

more persuasive, there is evidence that all the TiO2 suppliers 

discussed “improv[ing] pricing” at an industry conference in 

2005 and that in 2002 DuPont and Kronos announced an 

identical price increase just days after Jim Fisher met with 

these two “competitors.”

A jury should be allowed to determine whether Fisher’s 

meetings with both Kronos and DuPont—days before a

parallel price increase announcement—were suspect. A jury 

 

15 In re Titanium Dioxide, 959 F. Supp. 2d at 812–13 

(quoting Fisher) (emphasis added).
22

should be allowed to determine whether an email that 

“competition” is “on board” for a price increase announcement 

was concerted action, particularly when this email was written 

one day after Huntsman’s President personally met with 

Millennium’s CEO. A jury should be been permitted to decide 

whether a meeting with the TiO2 manufacturers, in which they 

explicitly discussed “improv[ing] pricing,” supports an 

inference of concerted action. This is the exact sort of powerful 

evidentiary synergy the majority implies is absent from 

Valspar’s case.16 This approach misses by a mile an essential 

truth of actual courtroom litigation: that circumstantial 

evidence is competent, valid, and vital evidence in almost 

every conspiracy trial, civil or criminal. The courtroom 

litigation process, though sometimes messy and unpredictable,

is the preferred method for the resolution of factual questions 

under our Seventh Amendment. And, with all its quirks, the 

 

16 The majority does not discuss this particularly 

damning evidence, but states generally that “the record does 

not show the existence of an actual agreement.” Majority at 23

n.11. Contrary to the majority’s insistence, an actual agreement 

can be shown in the exact way that Valspar has set out to do so 

in this case. See Areeda & Hovenkamp, Antitrust Law ¶ 1422b, 

at 171 (3d ed. 2010) (“Although . . . mere proof of 

interdependent pricing, standing alone, may not serve as proof 

of an antitrust violation, we believe that the evidence 

concerning the purpose and effect of price announcements, 

when considered together with the evidence concerning the 

parallel pattern of price restorations, is sufficient to support a 

reasonable and permissible inference of an agreement, 

whether express or tacit, to raise or stabilize prices.”) 

(emphasis added).
23

civil trial is a far better method of evaluating evidence, direct 

or circumstantial, than an academic parsing of a printed record 

developed in discovery.

The inculpatory flavor of these emails is enhanced by 

the fact that the suppliers were all a part of the TDMA, which 

gave them access to highly confidential information via the 

GSP. The majority attempts to analogize the GSP to In re Citric 

Acid Litigation, 191 F.3d 1090 (9th Cir. 1990). In Citric Acid, 

the U.S. Court of Appeals for the Ninth Circuit rejected a 

theory that the alleged conspirators used their membership in a 

trade association as a front for conducting conspiratorial 

activities. 191 F.3d at 1097–98. It aptly pointed out that if 

courts “allowed conspiracy to be inferred from such activities 

alone, we would have to allow an inference of conspiracy 

whenever a trade association took almost any action.” Citric 

Acid, 191 F.3d at 1098 (emphasis added).

I agree with the majority that membership in a trade 

association, in itself, cannot serve as traditional evidence of a 

conspiracy. Nonetheless, our task is not to view the TiO2 

suppliers’ membership in the TDMA in a vacuum. When 

viewed in conjunction with the other evidence, the membership 

can be seen in a much different light than Citric Acid. For 

starters, there is evidence here (absent in Citric Acid, 

Chocolate, or any other case) of 31 parallel price increase 

announcements. Nearly all of these announcements came 

within thirty days of a TDMA meeting.17 Also absent from 

 

17 DuPont’s insistence that it did not begin attending 

TDMA meetings until 2010 is moot given that it attended 

CEFIC meetings—long before 2010—that were concurrent 

with the TDMA meetings. Valspar, 152 F. Supp. 3d at 246 n.5.
24

Chocolate or Citric Acid is the presence of an industry 

consultant (Jim Fisher) who was simultaneously retained by 

multiple “competitors” to gather pricing information. 

Obviously, no court could say with certainty that DuPont 

agreed to fix prices with the other suppliers at the TDMA 

meetings. But making a judicial determination with certainty is 

not our job at summary judgment. The point is that, the above 

evidence, viewed in a light most favorable to Valspar—whose 

theory makes perfect economic sense—creates an inference of 

concerted action sufficient to reach a jury.

The majority downplays the role of this key “industry 

consultant” Jim Fisher. There is evidence suggesting Fisher 

was used as a vehicle to carry out the suppliers’ collusive 

agreement. On June 11, 2002, DuPont publicly announced a 

price increase.18 Four days prior, Jim Fisher had called 

DuPont’s Competitive Intelligence Manager, Connie Hubbard. 

In that conversation, Fisher conveyed confidential pricing 

information about one of DuPont’s competitors: Huntsman. 

This was the first Hubbard had heard of this Huntsman increase 

because it had not been announced publicly. This interaction, 

in itself, provides traditional conspiracy evidence in that it 

suggests Huntsman and DuPont may have used Fisher to 

implement a “common plan” to fix prices “even though no 

meetings, conversations, or exchanged documents are shown” 

between Huntsman and DuPont. Chocolate, 801 F.3d at 398.19

 

18 Titanium Dioxide, 959 F. Supp. 2d at 811.

19Obviously, based on this evidence, and other evidence 

of Fisher’s cross-company communications, a reasonable jury 

could infer that no direct conversations between the TiO2 

manufacturers were needed if Fisher acted as their mouthpiece.
25

There is plentiful evidence of price signaling (another

plus factor) in this case. In Petroleum Products Antitrust 

Litigation, the U.S. Court of Appeals for the Ninth Circuit 

confronted nearly identical circumstantial evidence of price 

signaling. 906 F.2d 432, 446 (9th Cir. 1990). Like here, in 

Petroleum Products, there was evidence that the competitors’ 

“price increases were occasionally announced in advance of 

their effective date.” 906 F.2d at 446 n.11. This type of 

preemptive announcement, the Ninth Circuit recognized, is 

“effective in allowing the price leader to communicate its 

intention and to receive reactions without having to incur 

substantial risk.” Petroleum Prods., 906 F.2d at 446 n.11.

DuPont maintains that it made price announcements 

publicly because it was required to do so per its contracts with 

customers. While it is true that DuPont was required to notify 

its customers when it changed its price, there is no evidence 

that DuPont was required to do so publicly. In fact, the record 

evidence suggests the opposite. Notably, DuPont never 

publicly announced price decreases. This supports an inference 

that DuPont’s public price increase announcements were for 

the purpose of collusion rather than customer notification. 

The TiO2 manufacturers even admitted they did not use 

public price increase announcements to notify customers. 

When asked about the purpose of public announcements, 

Kronos’s Jay Becker agreed he would “never” rely on a public 

price increase to provide Kronos customers with notice of a 

price increase. Gary Cianfichi, from Millennium, similarly 

stated that he did not believe any customer contract required 

public notice. Larry Rogers, from Kronos, testified he “really 

couldn’t say why” price increases were announced publicly 

given that the customers were notified privately in writing. 

This evidence also supports an inference that the 
26

manufacturers used public price increase announcements as a 

concerted method of fixing prices market-wide.

The traditional conspiracy evidence in this case is much 

different than it was in Chocolate. We recognized in Chocolate

that a company’s departure from pre-conspiracy conduct can 

serve as traditional conspiracy evidence, which is the “most 

important plus factor.” Chocolate, 801 F.3d at 401, 410. The 

caveat is that the change from pre- to post-conspiracy conduct 

must be “radical” or “abrupt.” Id. at 410. In Chocolate, there 

was no radical or abrupt change. This case differs from the 

departure of pre-conspiracy conduct in Chocolate in three 

significant respects. 

First, and most basic, Chocolate involved comparing 2

pre-conspiracy price increases with 3 post-conspiracy price 

increases. Id. Here, by stark contrast, we must compare 3 preconspiracy increases with 31 post-conspiracy increases. In 

other words, in Chocolate, the pre-post ratio was just above 1:1 

whereas here the ratio is 10:1. It would be difficult to claim that 

such a change in conduct is not “abrupt” or “radical.” In a case 

with unprecedented (31) parallel price increase 

announcements, such a finding creates an unwarranted burden 

for plaintiffs relying on circumstantial evidence to prove a 

price-fixing conspiracy. The majority attempts to explain this 

radical and abrupt shift, implying it was “just an uptick in 

frequency.” 

Second, the nature of the communications between 

competitors in Chocolate is different from the communications 

here. In Chocolate, we found the communications 

unpersuasive in part because “unlike in Flat Glass,” the 

communications did “not reveal pricing plans dependent on 

others following.” Id. at 408. Here there is evidence, as in Flat 
27

Glass, that could give rise to an inference that the TiO2 

manufacturers’ pricing decisions were dependent upon the 

decisions of others. Like Flat Glass and unlike Chocolate, the 

communications here were made between high-level rather 

than low-level employees. The evidence that Fisher 

communicated contemporaneously with people from Kronos, 

Millennium, Huntsman, and DuPont suggests the individual 

suppliers’ pricing plans were “dependent on others following.” 

Id. The DuPont email advising to modify pricing “[o]nly if” it 

meant a Kronos price increase would not be “undercut” 

similarly suggests pricing plans “dependent on others 

following.” Id. (emphasis added). As does Fisher’s direct 

testimony that, at an industry meeting, the TiO2 suppliers 

“discussed the need to take advantage of tight market 

conditions to improve pricing.”20 Finally, evidence that certain 

executives asked Jim Fisher to confirm others’ planned price 

increase announcements further indicates the suppliers were 

making decisions not on their own—as the evidence showed in 

Chocolate—but rather, as in Flat Glass, based on other 

suppliers’ price decisions.

Third, the pre-conspiracy prices in Chocolate related to 

“different products” than the post-conspiracy price increases. 

801 F.3d at 410. Here, the pre-conspiracy and post-conspiracy 

price increase announcements related to the same fungible 

product: TiO2. This argument, unlike the argument of the 

appellants in Chocolate, is an exact “apples-to-apples” 

comparison. Chocolate, 801 F.3d at 410.

One final point has been overlooked in comparing this 

case to Flat Glass and Chocolate: neither Flat Glass nor 

Chocolate involved nearly as many parallel price increase 

 

20 In re Titanium Dioxide, 959 F. Supp. 2d at 812–13.
28

announcements as we have here. To be clear, again, these 

parallel price increase announcements, viewed alone, are not 

enough to defeat summary judgment. However, we are not to 

“consider each individual piece of evidence and disregard it if 

we could feasibly interpret it as consistent with the absence of 

an agreement to raise prices.” Flat Glass, 385 F.3d at 368. 

When viewed alongside all the other evidence in this case, the 

unprecedented parallel price increase announcements—many 

of which were made hours or days within each other—create 

an inference that the suppliers’ conduct was collusive.

These principles are especially important given that the 

majority continually relies on the proposition that “[c]onduct 

as consistent with permissible competition as with illegal 

conspiracy does not, standing alone, support an inference of 

conspiracy sufficient to survive summary judgment.” 

Matsushita, 475 U.S. at 588; see Valspar, 152 F. Supp. 3d at 

240, 244, 246, 249, 252–53 (relying on this principle with 

respect to individual pieces of evidence). But see Flat Glass, 

385 F.3d at 368 (courts shall not “consider each individual 

piece of evidence and disregard it if we could feasibly interpret 

it as consistent with the absence of an agreement to raise 

prices”). Matsushita seems wrongly applied when used to 

discredit each separate piece of proffered evidence an antitrust 

plaintiff brings forth. Flat Glass, 385 F.3d at 358 n.8, 359 n.9. 

It is also wrongly applied in a case like this, where the 

plaintiffs’ theory—oligopolists conspired to fix prices—makes 

perfect economic sense. Id. at 358; Petruzzi’s, 998 F.2d at 

1231–33 (rendering the Matsushita presumption against liberal 

inferences “unnecessary” because the plaintiffs’ “theory is not 
29

implausible”).21

It would not be too difficult to view the 31 parallel price 

increase announcements, standing alone, as consistent with 

interdependence. This, of course, would ignore the 

comparatively miniscule amount of pre-conspiracy price 

increase announcements: 3. It would also not be too difficult to 

view the relative market share stability of the TiO2 suppliers, 

standing alone, as consistent with interdependence. This, of 

course, would ignore the simultaneous intercompany sales at 

below-market value. The same goes for the manufacturers’ 

TDMA and CEFIC membership, meetings, and the GSP. There 

is nothing inherently collusive about trade associations, 

industry meetings, or aggregated statistics. This too, of course, 

would ignore the role Jim Fisher played as a communicator of 

confidential information between the TiO2 suppliers and that 

the co-conspirators’ executives had meetings together days and 

hours before they announced parallel price increases.

The majority seems to discount the plausibility of 

Valspar’s economic theory. This factor has been a focal point 

in our antitrust jurisprudence for decades. Matsushita, 475 U.S. 

 

21 DuPont relied on the requirement that, to survive 

summary judgment, Valspar must present evidence that “tends 

to exclude the possibility” that the alleged conspirators acted 

independently. Matsushita, 475 U.S. at 588. All of the 

evidence in this case, viewed in its totality, tends to exclude 

that the TiO2 manufacturers acted independently. Contrary to 

DuPont’s interpretation, “tends to exclude the possibility” does 

not mean “unequivocally excludes the possibility.” Such a 

standard would defy our basic summary judgment 

jurisprudence, which views the evidence in a light most 

favorable to the nonmoving party.
30

at 588–91; Chocolate, 801 F.3d at 396; Flat Glass, 385 F.3d at 

358; Petruzzi’s, 998 F.2d at 1232. The majority substitutes this 

distinct factor with the more general theory of 

interdependence. See Maj. Op. at 8 n.1. According to the 

majority, in Flat Glass, this Court refused to draw liberal 

inferences in favor of the plaintiff because of the theory of 

interdependence. In fact, this Court did draw liberal inferences 

in Flat Glass, and reversed summary judgment, partly because 

the plaintiff’s economic theory made perfect sense. It simply 

stated, in passing, that courts must be “cautious in accepting 

inferences from circumstantial evidence” in these types of 

cases—not that they do not do so. Flat Glass, 385 F.3d at 358.

There is no disagreement here that courts should take a 

“cautious” approach to accepting inferences from 

circumstantial evidence in price-fixing cases involving 

oligopolies. See Chocolate, 801 F.3d at 412 (explaining this 

approach); Flat Glass, 385 F.3d at 358–59 (same). I agree that 

this cautious approach is consistent with our Circuit’s law. I 

disagree with the majority’s transformation of this general 

“cautious” approach into a new approach that appears to shut

the door on a district court’s ability to accept reasonable 

inferences in any case involving oligopolists. Such a blackand-white approach is not resonant of the type of “caution” 

discussed in Flat Glass and Chocolate, but rather acts to usurp 

the jury’s role in deciding cases loaded with circumstantial 

evidence of an actual agreement to fix prices.

In Chocolate, this Court confirmed that “[u]nder 

Matsushita, the range of acceptable inferences that may be 

drawn from ambiguous or circumstantial evidence varies with 

the plausibility of the plaintiffs’ theory.” 801 F.3d at 396; see 

also id. at n.8 (comparing cases where this Court has drawn 

liberal inferences when the plaintiff’s theory made sense with
31

cases where this Court refused to do so because the theory did 

not make sense). In Chocolate, this Court did not view the 

theory of interdependence as a complete roadblock to drawing 

liberal inferences. Id. at 396–97. The only time this should 

happen is if the plaintiff is relying on “ambiguous evidence 

alone.” Id. at 396. Up until today, the general theory of 

interdependence never supplanted a court’s consideration of 

the plaintiff’s economic theory.22

 

22 In an attempt to assuage concerns about its analysis, 

the majority tries to justify its heightened standard through 

Chocolate. According to the majority, this Circuit’s precedent 

has long required a plaintiff in this type of case to prove that it 

is “more likely than not” true that there was a price-fixing 

conspiracy in order to survive summary judgment. Majority at 

9 n.1, 13, 13 n.4, 29–30, 29 n.14. The majority makes too much 

of this dicta. This was not, as the majority claims, some 

profound announcement of a new legal standard or rule. 

Indeed, this purportedly axiomatic language has never once 

been used in any other price-fixing case involving oligopolies. 

See generally Matsushita, 475 U.S. 574 (not using this 

language anywhere); Monsanto, 465 U.S. 752 (same); Flat 

Glass, 385 F.3d 350 (same); Baby Food, 166 F.3d 112 (same). 

The use of that phrase in Chocolate simply reflected the 

Court’s conclusion that the plaintiffs, in that particular case, 

had not been able to point to any reasonable inferences of a 

conspiracy. Even assuming arguendo this alleged “standard” 

were actually the measuring stick, the plaintiffs in this case 

have certainly met it.
32

C. Conclusion

I am certainly mindful of the theory of interdependence 

and the presence of an oligopoly. With that said, from the very 

start, Valspar presented a theory that makes perfect economic 

sense. It supported this theory with strong evidence of parallel 

conduct in the form of 31 (an unprecedented amount) of 

parallel price increase announcements. Recognizing conscious 

parallelism to be insufficient on its own to survive summary 

judgment, Valspar also presented viable evidence in support of 

the plus factors: (i) price signaling, (ii) exchanges of 

confidential information, (iii) relatively static market shares, 

(iv) intercompany sales of TiO2 at below market price, (v) 

abrupt departure from pre-conspiracy conduct, and (vi) a 

market susceptible to conspiracy. Although the TiO2 market is 

an oligopoly, Valspar also presented evidence that did not 

simply restate interdependence: non-price acts against selfinterest. Finally, it presented traditional conspiracy evidence. 

Viewed together, and not compartmentalized, all this evidence 

was more than sufficient to preclude summary judgment.

For these reasons, I respectfully dissent.