F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S T A N I S L A U S F O O D P R

O D U C T S C O M P A N Y , a California corporation, Plaintiff-Appellant
,

v

.

USS-POSCO I

N D U S T R I E S , a California partnership; P I T C A L , I N C .,a Delaware corporation; POSCOC A L I F O R

N I A C O R

P O R A T I O N , a Delaware corporation; U N I T E D S T A T E S S T E E L C O R

P O R A T I O N , a Delaware corporation; POSCO A M E R I C A N S T E E L C O R

P O R A T I O N , a Delaware corporation,

Defendants-Appellees

. N o. 13-15475

D.C. No. 1:09-cv-00560- L J O-B AM

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence J . O’Neill, District J u dg e, Presiding

Arg ued and Submitted March 9, 2015—San F r ancisco, California

F iled October 13, 2015

B efore: M. Marg aret McKeown, Mary H. Murg u ia, and Michelle T. F riedland, Circuit J udg es.
Opinion by

J udg e McKeownS T A

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SUMMARY *

Antitrust

Affirming the district court’s s u m m a ry judg ment on a claim under Section 1 of the Sherman Antitrust Act, the panel held that Stanislaus F o od Products Co. failed to establish specific facts s upporting a market allocation conspiracy
among the nation’s leading tin manufacturers.

Stanislaus alleg e d that it paid artificially hig h prices as the result of the tin manufacturers’ ag reement to c ede the tin mill products market in the western U nited States to a sing le
company , USS-POSCO I ndustries. The panel concluded that alleg ed conspirator U.S. Steel Corp. did not have a plausible economic motive f

or the alleg ed a g reement, an d Stanislaus failed to present specific evidence that tended to e x clude the possibility that the alleg ed conspirators acted independently

.

COUNSEL

W illiam B e rstein, Eric B . F astiff ( arg ued), Dean M. Harvey
, and Marc A. Pilotin, L ieff, Cabraser, Heimann & B ernstain, L L P, San F r ancisco, California, for Plaintiff-Appellant.

J ames C. Martin (arg

ued), P. Gavin Eastg ate, and Michelle A

. Mantine, Reed Smith, Pittsbu r gh
, Pennsy lvania; Daniel I

. B ooker a n d Alex ander Y. Thomas, Reed Smith L L P, W a shing ton, D.C.; J

. Michael J arbo e , U n ited States Steel

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S T A

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Corporation, Pittsburg h, Pennsy lvania; Allan Stey er, D. Scott Macrae, and Gabr i e l D. Z eldin, Stey er L owenthal B oodrookas Alvarez & Smith, San F rancisco, California; R e x S. Heinke and Reg inald D. Steer, A kin Gump Strauss Hauer & F eld L L P, San F r ancisco, California; a nd Steven M. Pesner and Nicholas Adams, Akin Gump Strauss Hauer & F eld L L P, New York, New York, for Defendants-Appellees.

OP INION

McKEOW

N, Circuit J udg e:

This appeal, which centers on tin mill products used to make the tin cans commonly used to p a c k ag e food, teaches that there’s no subst itute f or c oncrete evidence. Stanislaus Fo od Products Company claims that it pay s artificially h i gh prices as the result of an illeg al market allocation ag reement among the nation’s leading tin manufacturers who ag reed to cede the tin mill p roducts market in the western United States to a sing le company , USS-POSCO I ndustries (“UPI ”).

Althoug h echoes o f price-fix ing permeate the appe a l
, only

a mar k e t allocation theory is at issue. B ut the marketallocation claim relies o n a shaky economic theory
, as the purported arrang ement would n ot be rational in lig ht of the circumstances. Even after ex tensive discovery
, the evidence does not tend to e x clude the possibility that the alleg ed conspirators w ere acting independently

. W e conclude th at Stanislaus has failed to establis h s p e c ific facts supporting a market allocation conspira c y and a ffirm summary judg ment for the tin manufacturers.S T A

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B A C K G R O U N D

Stanislaus, a tomato cannery located in Modesto, California, purchases its tin cans ex clusively from Silg an, o ne of three major American tin c an ma n u f a c t urers. These purchases occur under long -term contract.

Silg an, in turn, purchases tin mill products from multiple suppl i e r s, including United States Steel Corporation (“U.S. Steel”) and U PI

. U .S. Steel manufactures and sells tin mill products as well as hot band steel, which is a c omponent of tin m ill products. U.S. Steel has nationwide supply

c o ntracts with Silg a

n and the other major tin can manufacturers. UPI is a joint venture equally owned by U.S. Steel a nd POSCO America Steel Corp oration (“POSCO America”). 1 As part of the joint venture, U.S. S t e e l a nd POSCO America supply UPI with hot b a n d steel. UPI ’s tin mill product prices are set by a six

- person manag ement team that includes three appointees each from U .S. Steel a nd POSCO America.

Stanislaus initiated suit in California state court, where it first alleg e d price fix ing claims ag a inst UPI
, Silg an, and other unnamed conspirators in viol at i o n of state and federal antitrust law. The case features a complicated procedural history that w e need not recount in f u ll here. Stanislaus’s third amended federal complaint, which ex cludes Silg an a s a

1 P O SCO A m erica an d P OSCO- Calif orn ia Co rp o ratio n (co llectiv ely
,
“ POSCO”) are su

b sid iaries of P o h an g Iro n & Steel Co
., Lt d

. , h ead q u artered in So u t

h Ko rea. P O SCO h as n o t m ad e tin m ill p ro d u cts sin ce 2 0 0 0 an d h as n ev er so ld tin m ill p ro du cts in

th e Un ited States.S T A

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defendant, 2 assert s t h at U.S. Steel ag reed to ex it the market and eliminate certain d i s counts to Silg an to allow UPI to charg e monopolistic prices for tin mill p roducts. Stanislaus described three 2006 U PI manag ement committee meet ing s

as the setting for the ag reement. The district court g ranted in part and d enied in part a motion to dismiss the third amended complaint. D ismissing a se p a r ate conspiracy to monopoliz e claim, the court left only the market a llocation conspiracy claim to g o forward. The “linchpin” of the market allocation
ag reement, according to the d istrict court, would be proof of U.S. Steel’s ex it of the market.

After ex tensive d iscovery
, the defendants moved f o r summary judg ment. The briefing prompted the district court to observe that “the p a r t i e s ha[ d] sharply different views on what this case is about.” Stanislaus purs u e d two d istinct antitrust theories. The first was an “ex it theory ” of the conspiracy
, which turned on U .S. Steel’s ex it from the market f or tin mill products in the w estern United States—an approach that mapped to the surviving complaint a lleg ations. Stanislaus’s second theory was a new “partial a l l o cation theory ,” not raised in the compl a i nt, under which Stanislaus claimed that U.S. Steel d id not a g g ressively compete on price. Under this theory
, “[ b] ecause UPI was left unchalleng e d, U.S. S t e el effectively ‘ allocated’ to U PI a dominant, but not complete, position in the market.”

2 T h e d ef en d an ts earlier ch allen g ed Stan islau s’ s stan d in g as an in d i rect p u rch aser. See S ta n i

sla u s Fo o d Pro d

s. Co

. v. US

S -POS CO In d

u s. , 7 8 2 F. S u p p

. 2 d 1 0 5 9 (E.D. C al. 2 0 1 1 ). T h e d istrict co u rt’ s reso lu tio n o f t h a t issu e in Stan isla u s ’s fa v o r is n ot ch allen g ed o n ap p eal. T h e rem ain in g d ef en d an t s are UP I, P O SCO, P itcal, In c., an d U.S. Steel.S T A

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Evaluating both theories, the district co urt g ranted the defendants’ motion for summary judg ment. The court b eg an by considering w h et h er there was a plausible economic motive for either allege d a g reement. The court concluded
t hat either ty

pe of conspiracy w ould be rational for UPI a n d POSCO, w h ich both stood to g ain from any supracompetitive pricing c h a r ged by UPI
, but irrational for U.S. Steel, w hich com p e t es w ith UPI by selling tin mill products throug h national supply c ontracts under which its customers elect the d e l i v e r y destination. U.S. Steel thus “lacks the ability to unilaterally price d iscriminate ag ainst the western United States market”; this market structure did not make the prospect of forfeiting competitiveness on a n a t i o nal level

r ational for U.S. Steel, even taking into account that U. S

. Steel’s 50% ownership in UPI meant that it would benefit to

some ex tent from UPI ’ s profits. Ag a inst th i s b ackdrop, a nd “proceed[ ing ] with caution,” the cou r t concluded that Stanislaus’s circumstantial evidence w a s insufficient to support an inference of conspiracy

.

A N A L Y S I S

Section 1 of the Sher m an Antitrust Act renders illeg al “[ e] very contract, combination

. . . , or conspiracy
, in restraint of trade or commerce.” 15 U.S.C. § 1. This case involves an alleg ed illeg a l ag reement to allocate territory to U PI in order
to reduce competition in the market f or tin mill products. See Palmer v. B

RG of Ga., Inc.
, 498 U

. S

. 4 6
, 49 (1990) (per curiam) (citing United States v. Topco Assocs., Inc.
, 405 U.S. 596 (1972)).

Be f o re considering the evidence, we review the bas i c principles o f summary judg ment that gu i d e this appeal. Summary judg ment is appropriate “if the movant shows thatS T A

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there is no g enuine d ispute as to any material fact and the
movant is en t i t l e d t o judg ment as a matter o f law.” F ed. R. Civ. P. 5 6(a). W e view the facts and draw factual inferences in favor of Stanislaus, t he non-moving party

. T.W

. Elec. Serv., I nc. v. Pac. Elec. Contractors A ss’n
, 809 F .2d 626, 631 (9th Cir. 1987). Still, to survive summary j u dg ment, Stanislaus must establish a “g enuine” factual dispute, which involves “more than

. . . some metaphy sical doubt as to the material facts.” Matsushita Elec. I ndus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986); F ed. R. Civ. P. 56(a).

An ag reement to restrain trade may be e s t a b lished b y direct or by circ u m s t a ntial evidence. See 7-Up Bottling Co.

v. Archer Daniels M

idland Co., I

nc. ( In re Citric Acid Litig. ), 191 F .3d 1090, 1093 (9th Cir. 1999). Stanislaus relies upon circumstantial evidence to establish such an ag reement h ere.

I n Matsushita
, the seminal case apply ing these principles
to antitrust claims, the Supreme Court e x plained that to survive summary judg ment on the basis of circum s tantial evidence, “a plaintiff seeking damag es f or a violation of § 1
must present evidence ‘ that tends to ex clude the p ossibility ’ that the alleg ed conspirators acted independently .” 475 U.S.
at 588 (quoting Monsanto Co. v. Spray-Rite Serv. Corp.
, 465 U.S. 752, 764 ( 1 9 8 4 ) ). I n o ther words, to establish the requisite factual dispute, Stanislaus “must show that the inference of conspir a c y i s reasonable in lig h t of the competing inferences of independ en t action or collusive action that could not have harmed [ Stanislaus] .” Id.

M a t s u s hita underscores that in making this determi n a t i o n , contex t is k e y

. As the Supreme Court put it, “if the f actual
contex t renders [S t a

n i s l a u s ’ s ] c l a i m implausible—if the claim is one t h a t simply makes no e conomic sense—[ Stanislaus]S T A

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must come forward with more p ersuasive evidence to support [ its] claim than would otherwise be necessary .” Id. at 587.

As we p roceed, we are min d f u l t h at “courts should not permit factfinders to infer conspiracies when such inferences

are implausible.” I

d. a t 5 9 3 (citing Monsanto
, 465 U.S. at 762–64). The Supreme Court has o bserved that “mistaken inferences” are “especially costly ” in cases that bear the risk of “chill[ ing ] the very conduct the antitrust laws are desig n ed
to protect.” Id. at 594 (citing Monsanto
, 465 U .S. a t 763–64).

B e cause this case hing e s on circumstantial evidence, our inquiry into whether Stanislaus’s showing is s u f f icient to establish an ag reement proceeds in two steps:

F irst, the defendant can rebut a n alleg a tion o f conspiracy by showing a pla u sible a nd justifiable reason for its conduct that is consistent w ith proper business practice. The burd e n then shifts back to the plaintiff to provide specific evidence tending to show that the defendant was not eng ag ing in permissible competitive behavior.

In re Citric Acid Litig.
, 191 F .3d at 1094 (citations omitted).

W e beg in by assessing the plausibility of Stanisl a u s ’s claims in lig ht of their factu a l c o n t ex t. See Matsushita
, 475 U.S. at 588 (considering “the n at u r e of the alleg ed

c o n s p i r a c y a n d t h e p r a c t i c a l o b s t a c l e s t o i t s implementation”). I n doing so, we cann o t ig nore the Supreme Court’s prohibition o n “permit[ ting ] f actfinders to infer conspiracies when such inferences are implausible,” id.
at 593, lest we r isk the “pernic ious dang er” of “deter[ ring ]S T A

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pro-competitive conduct,” In re Citric Acid Litig.
, 191 F .3d
at 1094. I mplausible claims require a “more p e rsuasive” showing “that tends t o e xclude the possibility ” of independent

ac t i o n

. Matsushita
, 475 U.S. a t 587–88. W ith these principles in mind, we turn to whe t h e r Stanislaus can establish its claim.

I. R ATI O NALI TY AND J USTI F I CATI O NS F O R T H E C H A L L E N G

E D A C T I O N S

I n lig ht of the shifting alleg ations, our first s t e p i s to identify the alleg ed conspirators and the ex act subject matter of the alleg ed co n s p iracy

. Stanislaus alleg es that in 2006, UPI
, POSCO, and U.S. Steel ag reed to allocate the western United States market for tin mill p roducts to UPI
, enabling UPI to dominate the market and raise its prices.

As the district c o urt noted, Stanislaus’s ex act theory of the alleg ed ag r eement has been in f lux

. The operative complaint alleg es that “[ a] fter 2006, pursuant to the Market Allocation Ag reement, U.S. Steel ex ited the Relevan t Market, and UPI faced no meaning ful competition whatsoever.” I t also posits that U.S. Steel fully e x ited the market for the western United States and refused to enter into new long -term contracts with its larg est c u stomers in the r eg ion. B y the time the parties briefed summary

judg ment, Stanislaus had shifted its theory
to focus on U.S. Steel’s failure to price competitively ag ainst UPI

. T h i s r eframing c ame about because the evidence showed that U.S. Steel had never e x ited the market. I n fact, U.S. Steel continued selling to Silg a n (including for west coast d elivery

). Absent evidence of U.S. Steel’s ex it from the

m a rket, we focus o ur analy sis on whether Stanislaus c a n show this second ty

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W e first analy

ze whether the alleg ed conspirators would have had a rational motivation to conspire. 3 F or UPI
, the alleg ed ag reement would certainly have made sense: it stood
to g ain by being able to charg e hig her p rices in the absence o f meaning ful competition in the reg ion. POSCO, a joint owner of UPI that does not sell tin mill products in the United States, similarly stood to g a in by reaping the benefit of those increased p r i ces. So far, so g ood for Stanislaus. B ut these incentives represent only one side of the alleg ed conspiracy

.

The key to the a lleg e d ag re ement—and to Stanislaus’s case—is U.S. Steel’s ag reement to stop competing in that
reg ion. U.S. Steel occupies quite a different position than do
t h e other alleg ed conspirators because it also manufactur e s and sells tin mill products through out the United States. Critical to the contex t o f this case, U.S. Steel has n ationwide supply contracts with all of the major tin can manufacturers. These contracts and their timing are independent of any o f the conspiracy claims. Under these contracts, U.S. Steel sells tin mill products F .O.B

. U.S. Steel’s mill, which means that the
customer selects where U.S. Steel is to ship the products a nd
pay s for shipping costs to the chosen destination.

3 In lig h t o f Ma tsu s h ita ’ s m an d ate to p ro b e th e p l au sib il i t y a n d

eco n o m ic u n d erp in n in g s o f a claim
, Stan i slau s’ s arg u m en t th at t h e d istrict

co u rt erred b y assessin g th e ratio n ality o f th e alleg ed c o n sp iracy is

u n p ersu asiv e. T h e f

actu al co n tex t o f a claim an d th e eco n o m ic p lau sib ility

o f a d ef en d an t ’ s m o tiv atio n to co n sp i re p lay an ex p licit, cen tral ro l e in th e stan d ard s set f

o rth in Ma t

su sh ita

. It is an u n co n tro v ersial ten et o f an titru st law th at “ [t]h e clarity a n d i nt e n s i ty of a m otiv atio n m ay b ear o n th e in f eren ces to b e d raw

n f ro m am b i gu o u s ev id en ce o f co o rd in ated b eh av io r.” P h illip E. A reed a (late) & Herb ert Ho v en cam p , An titru st La w ¶ 1 4 1 2 f (4 th ed

. Su

p p

. 2 0 1 5 ). Of co u r s e, o u r rev iew is d e n o v o b u t w e

c o n clu de th at t

h e d istrict co u

rt d id n o t v io late Fed eral Ru le o f C i v i l P ro ced u re 5 6 (f

)(2 ) b y f acto rin g th ese co n cern s in to its an aly sis. In d eed
, it w as b ou n d to d o so b y M a tsu sh ita

.S T A

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The structure o f U.S. Steel’s c o n t racts means that the price and ot h er terms a re neg otiated without U.S. Steel knowing whether a customer will request items be sent, say
, to California or to New York. The g eog raphic neutrality is a sign i f i c ant practical o bstacle to the viability of the alleg ed allocation ag reement: in order not to compete on price in the
western United States, U.S. Steel w o u l d need to stop compet i n g o n price nationwide or r efuse customers. B oth options risk losses to U.S. Steel’s bottom line and make little economic sense.

A s cheme like Stanislaus alleg es would n ot b e ration al unless U.S. Steel had little c o mpetition outside of the western United States or the potential pay off through o w nership o f UPI w as likely to be sig nificant. B ut other manufacturers compete in this market, including A r c elor-Mittal-Dofasco, Tata Steel (formerly
, Corus), Rasselstein, Dong bu, B ao, J F E, and R.G. Steel (formerly
, Severstal). I n fact, most of these manufacturers have at some time after 2006 shipped products to Silg a n’s facilities in the western United States.

Stanislaus arg u es that it is “sel f

- e v i dent” that an alleg ed conspiracy w as in U.S. Steel’s economic interest be c a u se U.S. Steel did not in fact take market share from UPI
, despite U.S. Steel’s prices being lower. Even assuming Stanislaus’s market a naly sis is correct, this theory boils down to retrospective g uesswork; it say s nothing of the economic rationality of the ag reement in the fi r s t p lace. Additionally
, t h e fact that U.S. Steel undercut U PI on price is consist e n t with competitive behavior. See Matsushita , 475 U .S. at 594 (“[ C] utting prices in order to i n crease b usiness often is the
very essence of competition.”).S T A

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Silg an’s position is a key aspect of Stan i s laus’s c laim. UPI offers testimony that it was a ble to sec u re S i l g an’s ag reement in 2008 to a long -term contract that raised Silg an’s price for tin mill products b ec a u s e Silg a n, a knowledg eable play er in the market, wante d to lock in lower long -term prices. The price ag reed to, while hig her than p r evious prices, was still lower than those of other suppliers, with the

ex c e ption only of U.S. Steel. Silg an wanted to avoid what its

ex e c utives termed the “ h ockey stick” i m p a c t 4 of a dramatic price increase that it ex pected w o u ld ensue if Silg an waited to reneg otiate in 2010, when the prior contract ex pired.

As for U .S. Steel, the prices it charg ed Silg an were lower
t h a n t h e prices Silg an a g reed to pay UPI

. And the terms o f
t he U.S. Steel–Silg an a g reement were set before the al l e g e d conspiracy beg an. A plausible justification for U.S. Steel’s pricing strateg y to Silg an is obvious: U.S. Steel was competing on price. The p rice increase by U.S. Steel to one of Silg a n’s competitors that Stanislaus relies on here n ot only did not involve Stanislaus’s supplier, it also still l e f t U

. S. Steel’s prices to that competitor lower than UPI ’ s. The same competitive justification for pr i c i ng thus applies, with the increase in price ex plained b y UPI ’s price leadership. See Areeda & Hovencamp ¶ 1 429b ( discussing how olig o p olistic rationality can provide for price increases t h r oug h price leadership).

Stanislaus arg ues that the fact that POSCO did not enter the weste r n U

. S

. market is evidence of a c onspiracy to

4 T h is m o n ik er ref

ers to th e f

act th at a g rap h t

rack in g th e p rices w ou ld

r e s em b le th e s h ap e o f a h o ck ey stick
, w ith a “ sh arp u p sw i n g at t h e e n d ”

o f th e term o f th e p rio r c o n tract rep resen tin g a d ram atic p rice in crease. S ee In re Ora cle C

o rp

. S ec. Litig

. , 6 2 7 F .3 d 3 76
, 3 8 3

– 8 4 (9 th Cir. 2 0 1 0 ).S T A

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allocate that market to U PI

. B ut the fact that POSCO did not enter a new market just to compete with its own joint venture is perfectly justifiable, as “ [ f] irms do not ex pand without limit a nd none of them e n ters every market that an out s i de observer mig ht reg a

r d as profitable, o r e ven a small port i on of such markets.” Bell Atl. Corp. v

. Twombly
, 550 U.S. 544, 5 6 9 ( 2007) (alteration in orig inal) ( quoting Areeda & Hovenkamp ¶ 307d, at 155 (Supp. 2006)).

The potential benefit of this scheme for U.S. Steel is just
not apparent. To come out ahead, U.S. Steel would have h ad
to g ain more than it would lose from abandoning a competitive p osition in the western market for tin mill products. This prospect is speculative at best. Even f actoring in the p o t e n t ial of charg ing UPI a hig her price f or hot band steel and the p otential profits to b e derived from U.S. Steel’s 50% ownership in UPI , we note that U.S. Steel supplies just half of UPI ’ s hot band steel. These factual circumstances do not alter our conclusion that U.S. Steel’s participation in the alleg ed conspiracy

is economically

implausible.

The burden shi f

t s to Stanislaus to establish its claim throug h “specific evidence tending to show that the [ coconspirators were] not eng ag ing in p ermissible competitive behavior.” In re Citric Acid Litig. , 191 F .3d at 1094.

II. E V I D E N C E O F C O N S P I R A C Y

Stanislaus identifies several categ ories of evidence that it
arg ues “tend[ ] t o s h ow” the market allocation ag r eement. W h ile some o f the e v i d en ce may have a neg ative ting e, we conclude that the evidence d oes not, taken tog e ther, tend to

ex c lude the possibility of p ermissible independent behavior. M a t s u s hita
, 475 U.S. at 588. The n otion, for ex ample, t h atS T A

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U.S. Steel did not compete ha r d e noug h or a g g ressively
enoug h for Stanislaus’s taste is difficult to assess or quantify

. I n any event, that ch a racteriz ation proffered by Stanislaus is
not the a pplicable standard. The question we should instead ask is w hether there is s u f ficient specific evidence of a market allocation ag reem e n t —the crux of Stanislaus’s remaining antitrust claim. Considered a g ainst the backdrop of the market for tin mill products during this period, Stanislaus has failed to provide sufficient “specific evidence”
to support a finding of conspiracy in lig ht of t he lack o f economic r ationality of the purported a g reement. In re Citric Acid Litig. , 191 F .3d at 1094.

A. P arallel pricing and pricing patterns

W h en UPI raised its prices
, U

. S

. Steel also raised its prices to some customers. Stanislaus asserts that this allowed UPI to maintain artificially hig h prices i n an ag reed-upon absence of competition. Of course, “ [ p] arallel p r i c i n g is a relevant factor to be considered a long with the evidence as a whole; if there are sufficient other ‘plus’ factors, an inference of conspiracy can be r easonable.” Id. at 1102 ( c i t a t i on omitted).

K ey t o Stanislaus’s theory is that this pricing behavior

was contrary to U.S. Steel’s sel f-interest. Specifically
, Stanislaus arg ues that U.S. Steel’s decision to r ai s e i t s price
to one of Silg an’s competitors despite having lower hot band steel costs than in the previous y ear was not i n U.S. Steel’s economic self-interest. See In re Text Messaging Antitrust Litig.
, 630 F .3d 622, 628 (7th Cir. 2010) (noting that falling
costs increase a seller’s profit marg in and motivate the seller
to r educe its price). This arg ument, which pinpoints a sing le
y ear, fails to account for pricing patterns over multiple y ears.S T A

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To g et the full picture, we must jux t a p o se the price of tin
ag ainst the c ost involved in making that tin. I n particular, the

c o s t of h ot band steel—a sig nificant factor in t i n manufacturing

—only d ro p p e d in 2 009 after having jumped, sharply
, in 2008. The cost of making tin was therefore in flux
, creating uncertainty for manufacturers. U.S. Steel may have raised tin prices in 2009 to make up for losses c aused b y sky roc k e t ing material costs a y ear earlier—or as a h edg e ag ainst future price increases in the market for c o m p o n ent parts.

Of c ourse, Stanisl a u s’s critique of U.S. Steel’s pricing behavior is also undercut by the fact that its prices were still l ower than those of U PI

. This “price point” had potentia l
, even if u nrealiz ed, to attract c ustomers away from UPI

. This behavior is n ot credibly vi e w e d a s ag ainst U.S. Steel’s self-interest or as tending to ex c lude independent behavior. 5

B. Inf orm ation exchanges a nd other com m unications

To support an inference of conspiracy
, Stanis l a u s offers evidence of information ex chang e s between U.S. S t ee l a nd UPI

. I nterfirm c ommunications, particularly a mong hig h

level ex ecutives, are a “plus f act o r” that can bolster the inference of c onspiracy

. See In r e P u b l’n Paper Antitrust

5 Stan i slau s also co m

plain s th at th ese p ricin g p attern s d o n o t ref lect th e h isto rical sp read b etw een t h e co st o f h o t b an d steel an d t h e price o f t in

m ill p ro du cts, an d arg u es th at th e p attern s are in co n sisten t w ith declin in g d em an d an d ex cess m an u f actu rin g cap acity

. Mark et co n d itio n s d u rin g a p erio d o f alleg ed co llu sio n

can b e a p lu s f

acto r th at su

p p o rt an in f

eren ce

o f ag reem en t. S

ee, e.g

. , In r e Pu b l’n Pa

p er An titru st Litig

. , 69 0 F.3 d 5 1
, 6 5 (2 d Cir. 2 0 12 ) (ex cess cap acity ). B u t Stan islau s’ s arg u m en ts o n th is
p o in t are sp are an d d ev o id o f citatio n s to th e reco rd

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Litig.
, 690 F .3d 51, 62 (2d Cir. 2012); I n re Flat Glass Antitrust Litig. , 385 F .3d 350, 368–69 (3d Cir. 2004).

Ex ecutives at U.S. Steel were a w a r e of the contract bet w e e n U P I and Silg an. I n 2 008, the president of UPI emailed U.S. Steel ex ecutives an overview of the pri ce a nd other terms associated with the new contract.

The a lleg e d c o n spirators a rg ue that these communications

are irrelevant without evidence that they affected U.S. Steel’s price to Silg an in 2009. See I n re Flat Glass Antitrust Litig.
, 385 F. 3 d a t 3 6 9; In re Baby Food Antitrust Litig.
, 166 F .3d 112, 125 ( 3d Cir. 1999) (requiring “evidence that the

ex c h a ng e s of info r m a t i on had an impact on pricing decisions”). To show the lack of such an impact, the alleg ed conspirators point to a provision in the 2005 ag reement between U.S. Steel a

nd Silg an that limits s u b sequent price increases for tin mill products to 2% in any g iven y e ar.

Ex chang es o f information like this c a ll to mind the requirement that Stanislaus “must show more than a conspiracy in violation of the antitrust laws; [ it] must show an injury to [ it] resulting from the illeg al c onduct.” Matsushita
, 475 U.S. at 586. Absent deviation from the contracted price between U .S. Steel and Silg an, we ag ree that any neg ative inference is more difficult for Stanislaus to show and that the interfirm communications are of limited use. U.S. Steel’s knowledg e of the n e w contract between its joint venture a nd Silg an has little leg al sig nificance if it did not prompt action on U.S. Steel’s part.

Even if the U.S. Steel

– S i l gan contract was not a ffected, Stanislaus arg ues that this information prompted U.S. Steel to chang e the pricing for S i l ga n’s competitors. Despite thisS T A

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r e l a t i v e l y a ttenuated chain of cause-and-eff e c t , w e nonetheless take a deeper look at this alleg ation.

I n particular, Stanislaus a sks that we take note of internal communications that prove that UPI “made pricing decisions based on its understanding of [ U.S. Steel’s] ag r eement not to

c o m pete on p rice” in the reg ion. I n Aug u st 2008, th e president of U PI wrote, “There is a lot g oing on r eg arding 2009 industry

pricing for tin

. . . . Rig h t now our position on 2009 W est Coast pricing for e very o ne other than Silg a n is

m a j o r i n c r e a s e s c o n s i s t e n t w i t h A r c e l o r M i t t a l ’ s announcement and o u r u n d erstanding of what U.S. Steel is doing
, plus a maj o r a d d i tive for freig h t to the West Coast.” UPI internal ly predicted that “[ h] ig h [ p] rices a nd [ t] ransportation [ c] osts [ w] ill [ k] eep [ e] astern [ s] tee l i n the [ e] ast.” These communicat i o n s arose in the contex t o f observations about the difficult state of the tin market in the previous y ear due to sky rocketing ho t band steel prices, increased fuel and freig ht costs, inex p e nsive imports, a nd fluctuations in demand.

None o f this e vidence bolsters the inference that Stanislaus would have us draw from these communicat ions. Considered ag ainst the backdrop of market conditions in the industry
, it is ambig uous w hat the president o f U PI meant when he w rote of “our u nderstanding of what U

. S

. S teel is doing .” Stanislau s w ould have a jury infer that “what U.S. Steel [ was] doing ” was deliberately failing to price competitively
, as ag reed. I t is just a s plausible, if not more so, that the p hrase referred to what U.S. Steel w a s doing in the face of the same challeng ing conditions in the tin market
at the time. Althoug h we do n ot totally discount the evidence

as irrelevant, the e v iden ce is insufficient to support the

ex istence of a market allocat ion conspiracy

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C. Spot m arket sale

Stanislaus also points to evidence about a spot market sale, a circumstance in w hic h buy ers individually neg otiate one-time sales. B ut the evidence offered here o f a sing le spot

m a rket sale from U.S. Steel to one of Silg an ’s competitors—thus not involving Stanis l a us’s supplier at all—ad d s too little to qualify as “specific” evidence in support of a conspiracy

. I n 2008, U.S

. S t e el sold 1,000 tons of tin mill products to one of Silg an’s c ompetitors on the spot market. T he customer directed the tin mill products to be shipped to the western U nited S t a t e s

. The sale price was hig her than the national contract price between U.S. Steel a nd that same customer; U.S. Steel would n ot nego t i a t e despite the customer’s complaints a b o u t the hig h price. Althoug h U.S. Steel’s one-time p rice does n ot appear to have b een a s

c o m p etitive as its p rices set by long -term contract, what i s missing is a link to competitive pricing vis-a-vis U P I

. T he record d o es nothing to place the sale in contex t—for ex ample, it does not reflect how frequently these ty pes o f s a les occurred or whether hig h spot market prices somehow displaced its other sales. W e thus t re a t t h e spot sale a s somewhat of an outlier.

Se v e ral U .S. Steel ex ecutives communicated internally about this sale. Upon learning of the hig h price, U.S. Steel’s CEO inquired, “I s this because UP I i s f ull? ” Another U.S. Steel ex ecutive answered, “I am told this is NO T a s u p ply issue—but a p r i c e issue.” I n another ex chang e, one U.S. Steel ex ecutive commented, “not sure this is hig h enoug h but OK now,” to which another wrote, “Greed is a deadly sin.”S T A

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The meaning of these emails is ambig uous a t best, but it does not bea r o n the key q uestion o f whether U .S. Steel
ag reed to or did stop competing with UPI

. Perhaps anticipating that nothing concrete c an be inferred from the emails, Stanislaus characteriz es the ex chang es a s

ex h ibiting an “incong ruous[ ly ] hig h level of senior
manag ement attention” to what it calls a “ de minimis order” when compared to U.S. Steel’s total a n nual production of 1.2 million tons. This s u b

j e c t ive g loss on a sing le aspect of the evidence does not implicate th e c l a imed conspiracy or its impact on pricing to Stanislaus.

D. Expert report

F inally
, Stanislaus arg ues that the distri c t court improperly ig nored its ex pert report

. The district court reviewed “the two-pag e portion of Dr. Rausser ’ s r eport that P l a intiff direct[ ed] the Court’s attention to,” but went on to

n o t e that it “is nothing more than a broad overview of Plaintiff’s a

rg ument.” The district court declined to mine the 82-pag e report for “substantive o pinions that are n ot cited in its briefing ,” citing Carmen v

. San Franci s co Sch. Dist.
, 237 F .3d 1026, 1031 (9th Cir. 2001), for the proposition that

co u rts “need not ex a mine the entire file for evidence establishing a g enuine issue of f act, where the evidence is not set forth

. . . with adequate r eferences so th a t it could conveniently

be found.”

The ex planation t h a t Stanislaus now offers linking the
summary conclusions to various c omponents of th e e x pert report is too little, too late. Summary judg ment proceeding s focus on whether there are g enuine is s u e s of fact. Specific citations, n o t b ulk references, are essential to pinpoint keyS T A

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facts and factual disputes. T he district court was not r equired
to put the puz zle tog ether from a box ful of facts, and, in line with Carmen
, may permissibly decide the mot i o n without mining the entire document for more substantiation.

Nonetheles s , on de novo review, a nd despite the breez y reference, we g ive Stanislaus the b enefit of a full review. I n doing so, we are sy

mpathetic to the district c o u rt’s predicament. Not only is the re p o r t 8 2 pag es, but the evidentiary references a

r e found, without much detail, in 285 footnotes, a li s t ing of more than 180 sets of documents, multiple websites, and an array of other evidence.

Althoug h the ex pe rt report is well crafted a nd provides useful backg round o n the op t i cs o f the industry
, it also

co n t a i ns ex tensive discussion related to price-fix ing c laims that are not at issue in the appeal. Even Stanislaus’s belated

ex p lanation that the ex pert summary re l a t e s to two broad sections of the report d o e s l i t tle to identify factual issues o r cite to specific e vidence supporting St a n i slaus’s arg ument. This circumstance hig hlig hts w hy the appellate rules require specific citations to the record. F ed. R. App. P. 28(a)(8)(A), 28(e); 9th Cir. R. 28-2.8. H owever, c onsi d e r ation of the evidence (which we d

ug out ourselves) deali n g w ith market

a l location does not chang e o ur analy sis. The broa d

c o n c l usions a

nd cited evidence essentially mirror Stanislaus’s

a rg uments elsewhere and n othing in the market ana l y s i s rescues Stanislaus’s case. 6

6 Fo r ex am

p le, th e ex p ert rep o rt d o es n o t co n tain an y an aly s is o f

p ro f i t

m arg in s sh o w i n g th at U SS w o u ld actu ally b e better o f f w ith 5 0 % o f UP I’ s p ro f i ts in th e w estern U.S. th an it w o u ld b e co m p etin g f o r its o w n b u sin ess in th e w estern U.S. Du rin g o ral arg u m en t, w h en ask ed w

h eth er t h ere w as

an y “ m ath em atical an aly sis o f th e pro f it m arg i n s” in th e reco rd “ th atS T A

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C O N C L U S I O N

I n sum, Stanislaus f

ailed to meet its burde n t o show “specific evidence” of a market allocation ag r eement.

AF F IRMED.

sh o w s [U.S. Steel is] actu ally b etter o f f w ith th e 5 0 % [o f UP I’ s p ro f its in th e w estern U .S.] th an t

h e 1 0 0 % [o f w

h at] th ey m ig h t g et b y co m p etin g ,”

co u n sel co n ced ed th ere w as n o “ c o m p ariso n .” Oral A rg u m en t at 7 :5 0

– 8 :3 7, Stan islau s v

. U SS- P OSCO, (2 0 1 5 ) (No

. 1 3

- 1 54 7 5) h t t p : / / w w w

. c a 9

. u s c o u

r t s

. g o v / m e d i a / v i e w

_ v i d e o

. p h p ?p k

_ v i d = 0 0 0 0 0 0 7 3 2 1

.