FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STANISLAUS FOOD PRODUCTS

COMPANY, a California corporation,

Plaintiff-Appellant,

v.

USS-POSCO INDUSTRIES, a

California partnership; PITCAL, INC.,

a Delaware corporation; POSCOCALIFORNIA CORPORATION, a

Delaware corporation; UNITED

STATES STEEL CORPORATION, a

Delaware corporation; POSCO

AMERICAN STEEL CORPORATION, a

Delaware corporation,

Defendants-Appellees.

No. 13-15475

D.C. No.

1:09-cv-00560-

LJO-BAM

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

March 9, 2015—San Francisco, California

Filed October 13, 2015

Before: M. Margaret McKeown, Mary H. Murguia,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge McKeown
2 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

SUMMARY*

Antitrust

Affirming the district court’s summary judgment on a

claim under Section 1 of the Sherman Antitrust Act, the panel

held that Stanislaus Food Products Co. failed to establish

specific facts supporting a market allocation conspiracy

among the nation’s leading tin manufacturers.

Stanislaus alleged that it paid artificiallyhigh prices as the

result of the tin manufacturers’ agreement to cede the tin mill

products market in the western United States to a single

company, USS-POSCO Industries. The panel concluded that

alleged conspirator U.S. Steel Corp. did not have a plausible

economic motive for the alleged agreement, and Stanislaus

failed to present specific evidence that tended to exclude the

possibility that the alleged conspirators acted independently.

COUNSEL

William Berstein, Eric B. Fastiff (argued), Dean M. Harvey,

and Marc A. Pilotin, Lieff, Cabraser, Heimann & Bernstain,

LLP, San Francisco, California, for Plaintiff-Appellant.

James C. Martin (argued), P. Gavin Eastgate, and Michelle A.

Mantine, Reed Smith, Pittsburgh, Pennsylvania; Daniel I.

Booker and Alexander Y. Thomas, Reed Smith LLP,

Washington, D.C.; J. Michael Jarboe, United States Steel

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 3

Corporation, Pittsburgh, Pennsylvania; Allan Steyer, D. Scott

Macrae, and Gabriel D. Zeldin, Steyer Lowenthal

Boodrookas Alvarez&Smith, San Francisco, California; Rex

S. Heinke and Reginald D. Steer, Akin Gump Strauss Hauer

& Feld LLP, San Francisco, California; and Steven M. Pesner

and Nicholas Adams, Akin Gump Strauss Hauer & Feld LLP,

New York, New York, for Defendants-Appellees.

OPINION

McKEOWN, Circuit Judge:

This appeal, which centers on tin mill products used to

make the tin cans commonly used to package food, teaches

that there’s no substitute for concrete evidence. Stanislaus

Food Products Company claims that it pays artificially high

prices as the result of an illegal market allocation agreement

among the nation’s leading tin manufacturers who agreed to

cede the tin mill products market in the western United States

to a single company, USS-POSCO Industries (“UPI”).

Although echoes of price-fixing permeate the appeal, only

a market allocation theory is at issue. But the marketallocation claim relies on a shaky economic theory, as the

purported arrangement would not be rational in light of the

circumstances. Even after extensive discovery, the evidence

does not tend to exclude the possibility that the alleged

conspirators were acting independently. We conclude that

Stanislaus has failed to establish specific facts supporting a

market allocation conspiracy and affirm summary judgment

for the tin manufacturers.
4 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

BACKGROUND

Stanislaus, a tomato cannery located in Modesto,

California, purchases its tin cans exclusively from Silgan, one

of three major American tin can manufacturers. These

purchases occur under long-term contract.

Silgan, in turn, purchases tin mill products from multiple

suppliers, including United States Steel Corporation

(“U.S. Steel”) and UPI. U.S. Steel manufactures and sells tin

mill products as well as hot band steel, which is a component

of tin mill products. U.S. Steel has nationwide supply

contracts with Silgan and the other major tin can

manufacturers. UPI is a joint venture equally owned by U.S.

Steel and POSCO America Steel Corporation (“POSCO

America”).1 As part of the joint venture, U.S. Steel and

POSCO America supply UPI with hot band steel. UPI’s tin

mill product prices are set by a six-person management team

that includes three appointees each from U.S. Steel and

POSCO America.

Stanislaus initiated suit in California state court, where it

first alleged price fixing claims against UPI, Silgan, and other

unnamed conspirators in violation of state and federal

antitrust law. The case features a complicated procedural

history that we need not recount in full here. Stanislaus’s

third amended federal complaint, which excludes Silgan as a

1 POSCO America and POSCO-California Corporation (collectively,

“POSCO”) are subsidiaries of Pohang Iron & Steel Co., Ltd.,

headquartered in South Korea. POSCO has not made tin mill products

since 2000 and has never sold tin mill products in the United States.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 5

defendant,2asserts that U.S. Steel agreed to exit the market

and eliminate certain discounts to Silgan to allow UPI to

charge monopolistic prices for tin mill products. Stanislaus

described three 2006 UPI management committee meetings

as the setting for the agreement. The district court granted in

part and denied in part a motion to dismiss the third amended

complaint. Dismissing a separate conspiracy to monopolize

claim, the court left only the market allocation conspiracy

claim to go forward. The “linchpin” of the market allocation

agreement, according to the district court, would be proof of

U.S. Steel’s exit of the market.

After extensive discovery, the defendants moved for

summary judgment. The briefing prompted the district court

to observe that “the parties ha[d] sharply different views on

what this case is about.” Stanislaus pursued two distinct

antitrust theories. The first was an “exit theory” of the

conspiracy, which turned on U.S. Steel’s exit from the market

for tin mill products in the western United States—an

approach that mapped to the surviving complaint allegations. 

Stanislaus’s second theory was a new “partial allocation

theory,” not raised in the complaint, under which Stanislaus

claimed that U.S. Steel did not aggressively compete on price. 

Under this theory, “[b]ecause UPIwas left unchallenged, U.S.

Steel effectively ‘allocated’ to UPI a dominant, but not

complete, position in the market.”

2 The defendants earlier challenged Stanislaus’s standing as an indirect

purchaser. See Stanislaus Food Prods. Co. v. USS-POSCO Indus., 782 F.

Supp. 2d 1059 (E.D. Cal. 2011). The district court’s resolution of that

issue in Stanislaus’s favor is not challenged on appeal. The remaining

defendants are UPI, POSCO, Pitcal, Inc., and U.S. Steel.
6 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

Evaluating both theories, the district court granted the

defendants’ motion for summary judgment. The court began

by considering whether there was a plausible economic

motive for either alleged agreement. The court concluded

that either type of conspiracy would be rational for UPI and

POSCO, which both stood to gain from any supracompetitive pricing charged by UPI, but irrational for U.S.

Steel, which competes with UPI by selling tin mill products

through national supply contracts under which its customers

elect the delivery destination. U.S. Steel thus “lacks the

ability to unilaterally price discriminate against the western

United States market”; this market structure did not make the

prospect of forfeiting competitiveness on a national level

rational for U.S. Steel, even taking into account that U.S.

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

some extent from UPI’s profits. Against this backdrop, and

“proceed[ing] with caution,” the court concluded that

Stanislaus’s circumstantial evidence was insufficient to

support an inference of conspiracy.

ANALYSIS

Section 1 of the Sherman Antitrust Act renders illegal

“[e]very contract, combination . . . , or conspiracy, in restraint

of trade or commerce.” 15 U.S.C. § 1. This case involves an

alleged illegal agreement to allocate territory to UPI in order

to reduce competition in the market for tin mill products. See

Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 (1990) (per

curiam) (citing United States v. Topco Assocs., Inc., 405 U.S.

596 (1972)).

Before considering the evidence, we review the basic

principles of summary judgment that guide this appeal. 

Summary judgment is appropriate “if the movant shows that
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 7

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

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). We view the facts and draw factual inferences

in favor of Stanislaus, the non-moving party. T.W. Elec.

Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631

(9th Cir. 1987). Still, to survive summary judgment,

Stanislaus must establish a “genuine” factual dispute, which

involves “more than . . . some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986); Fed. R. Civ. P. 56(a).

An agreement to restrain trade may be established by

direct or by circumstantial evidence. See 7-Up Bottling Co.

v. Archer Daniels Midland Co., Inc. (In re Citric Acid Litig.),

191 F.3d 1090, 1093 (9th Cir. 1999). Stanislaus relies upon

circumstantial evidence to establish such an agreement here.

In Matsushita, the seminal case applying these principles

to antitrust claims, the Supreme Court explained that to

survive summary judgment on the basis of circumstantial

evidence, “a plaintiff seeking damages for a violation of § 1

must present evidence ‘that tends to exclude the possibility’

that the alleged conspirators acted independently.” 475 U.S.

at 588 (quoting Monsanto Co. v. Spray-Rite Serv. Corp.,

465 U.S. 752, 764 (1984)). In other words, to establish the

requisite factual dispute, Stanislaus “must show that the

inference of conspiracy is reasonable in light of the

competing inferences of independent action or collusive

action that could not have harmed [Stanislaus].” Id.

Matsushita underscores that in making this determination,

context is key. As the Supreme Court put it, “if the factual

context renders [Stanislaus’s] claim implausible—if the claim

is one that simply makes no economic sense—[Stanislaus]
8 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

must come forward with more persuasive evidence to support

[its] claim than would otherwise be necessary.” Id. at 587.

As we proceed, we are mindful that “courts should not

permit factfinders to infer conspiracies when such inferences

are implausible.” Id. at 593 (citing Monsanto, 465 U.S. at

762–64). The Supreme Court has observed that “mistaken

inferences” are “especially costly” in cases that bear the risk

of “chill[ing] the very conduct the antitrust laws are designed

to protect.” Id. at 594 (citing Monsanto, 465 U.S. at 763–64).

Because this case hinges on circumstantial evidence, our

inquiry into whether Stanislaus’s showing is sufficient to

establish an agreement proceeds in two steps:

First, the defendant can rebut an allegation of

conspiracy by showing a plausible and

justifiable reason for its conduct that is

consistent with proper business practice. The

burden then shifts back to the plaintiff to

provide specific evidence tending to show that

the defendant was not engaging in permissible

competitive behavior.

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

We begin by assessing the plausibility of Stanislaus’s

claims in light of their factual context. See Matsushita,

475 U.S. at 588 (considering “the nature of the alleged

conspiracy and the practical obstacles to its

implementation”). In doing so, we cannot ignore the

Supreme Court’s prohibition on “permit[ting] factfinders to

infer conspiracies when such inferences are implausible,” id.

at 593, lest we risk the “pernicious danger” of “deter[ring]
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 9

pro-competitive conduct,” In re Citric Acid Litig., 191 F.3d

at 1094. Implausible claims require a “more persuasive”

showing “that tends to exclude the possibility” of independent

action. Matsushita, 475 U.S. at 587–88. With these

principles in mind, we turn to whether Stanislaus can

establish its claim.

I. RATIONALITY AND JUSTIFICATIONS FOR THE

CHALLENGED ACTIONS

In light of the shifting allegations, our first step is to

identify the alleged conspirators and the exact subject matter

of the alleged conspiracy. Stanislaus alleges that in 2006,

UPI, POSCO, and U.S. Steel agreed to allocate the western

United States market for tin mill products to UPI, enabling

UPI to dominate the market and raise its prices.

As the district court noted, Stanislaus’s exact theoryof the

alleged agreement has been in flux. The operative complaint

alleges that “[a]fter 2006, pursuant to the Market Allocation

Agreement, U.S. Steel exited the Relevant Market, and UPI

faced no meaningful competition whatsoever.” It also posits

that U.S. Steel fully exited the market for the western United

States and refused to enter into new long-term contracts with

its largest customers in the region. By the time the parties

briefed summary judgment, Stanislaus had shifted its theory

to focus on U.S. Steel’s failure to price competitively against

UPI. This reframing came about because the evidence

showed that U.S. Steel had never exited the market. In fact,

U.S. Steel continued selling to Silgan (including for west

coast delivery). Absent evidence of U.S. Steel’s exit from the

market, we focus our analysis on whether Stanislaus can

show this second type of agreement.
10 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

We first analyze whether the alleged conspirators would

have had a rational motivation to conspire.3 For UPI, the

alleged agreement would certainly have made sense: it stood

to gain by being able to charge higher prices in the absence of

meaningful competition in the region. POSCO, a joint owner

of UPI that does not sell tin mill products in the United

States, similarly stood to gain by reaping the benefit of those

increased prices. So far, so good for Stanislaus. But these

incentives represent only one side of the alleged conspiracy.

The key to the alleged agreement—and to Stanislaus’s

case—is U.S. Steel’s agreement to stop competing in that

region. U.S. Steel occupies quite a different position than do

the other alleged conspirators because it also manufactures

and sells tin mill products throughout the United States. 

Critical to the context of this case, U.S. Steel has nationwide

supply contracts with all of the major tin can manufacturers. 

These contracts and their timing are independent of any of the

conspiracy claims. Under these contracts, U.S. Steel sells tin

mill products F.O.B. U.S. Steel’s mill, which means that the

customer selects where U.S. Steel is to ship the products and

pays for shipping costs to the chosen destination.

3

In light of Matsushita’s mandate to probe the plausibility and

economic underpinnings of a claim, Stanislaus’s argument that the district

court erred by assessing the rationality of the alleged conspiracy is

unpersuasive. The factual context of a claimand the economic plausibility

of a defendant’s motivation to conspire play an explicit, central role in the

standards set forth in Matsushita. It is an uncontroversial tenet of antitrust

law that “[t]he clarity and intensity of a motivation may bear on the

inferences to be drawn from ambiguous evidence of coordinated

behavior.” Phillip E. Areeda (late) & Herbert Hovencamp, Antitrust Law

¶ 1412f (4th ed. Supp. 2015). Of course, our review is de novo but we

conclude that the district court did not violate Federal Rule of Civil

Procedure 56(f)(2) by factoring these concerns into its analysis. Indeed,

it was bound to do so by Matsushita.
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 11

The structure of U.S. Steel’s contracts means that the

price and other terms are negotiated without U.S. Steel

knowing whether a customer will request items be sent, say,

to California or to New York. The geographic neutrality is a

significant practical obstacle to the viability of the alleged

allocation agreement: in order not to compete on price in the

western United States, U.S. Steel would need to stop

competing on price nationwide or refuse customers. Both

options risk losses to U.S. Steel’s bottom line and make little

economic sense.

A scheme like Stanislaus alleges would not be rational

unless U.S. Steel had little competition outside of the western

United States or the potential payoff through ownership of

UPI was likely to be significant. But other manufacturers

compete in this market, including Arcelor-Mittal-Dofasco,

Tata Steel (formerly, Corus), Rasselstein, Dongbu, Bao, JFE,

and R.G. Steel (formerly, Severstal). In fact, most of these

manufacturers have at some time after 2006 shipped products

to Silgan’s facilities in the western United States.

Stanislaus argues that it is “self-evident” that an alleged

conspiracy was in U.S. Steel’s economic interest because

U.S. Steel did not in fact take market share from UPI, despite

U.S. Steel’s prices being lower. Even assuming Stanislaus’s

market analysis is correct, this theory boils down to

retrospective guesswork; it says nothing of the economic

rationality of the agreement in the first place. Additionally,

the fact that U.S. Steel undercut UPI on price is consistent

with competitive behavior. See Matsushita, 475 U.S. at 594

(“[C]utting prices in order to increase business often is the

very essence of competition.”).
12 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

Silgan’s position is a key aspect of Stanislaus’s claim. 

UPI offers testimony that it was able to secure Silgan’s

agreement in 2008 to a long-term contract that raised Silgan’s

price for tin mill products because Silgan, a knowledgeable

player in the market, wanted to lock in lower long-term

prices. The price agreed to, while higher than previous

prices, was still lower than those of other suppliers, with the

exception only of U.S. Steel. Silgan wanted to avoid what its

executives termed the “hockey stick” impact

4

of a dramatic

price increase that it expected would ensue if Silgan waited

to renegotiate in 2010, when the prior contract expired.

As for U.S. Steel, the prices it charged Silgan were lower

than the prices Silgan agreed to pay UPI. And the terms of

the U.S. Steel–Silgan agreement were set before the alleged

conspiracy began. A plausible justification for U.S. Steel’s

pricing strategy to Silgan is obvious: U.S. Steel was

competing on price. The price increase by U.S. Steel to one

of Silgan’s competitors that Stanislaus relies on here not only

did not involve Stanislaus’s supplier, it also still left U.S.

Steel’s prices to that competitor lower than UPI’s. The same

competitive justification for pricing thus applies, with the

increase in price explained by UPI’s price leadership. See

Areeda & Hovencamp ¶ 1429b (discussing how oligopolistic

rationality can provide for price increases through price

leadership).

Stanislaus argues that the fact that POSCO did not enter

the western U.S. market is evidence of a conspiracy to

4 This moniker refers to the fact that a graph tracking the prices would

resemble the shape of a hockey stick, with a “sharp upswing at the end”

of the term of the prior contract representing a dramatic price increase. 

See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 383–84 (9th Cir. 2010).
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 13

allocate that market to UPI. But the fact that POSCO did not

enter a new market just to compete with its own joint venture

is perfectly justifiable, as “[f]irms do not expand without

limit and none of them enters every market that an outside

observer might regard as profitable, or even a small portion

of such markets.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

569 (2007) (alteration in original) (quoting Areeda &

Hovenkamp ¶ 307d, at 155 (Supp. 2006)).

The potential benefit of this scheme for U.S. Steel is just

not apparent. To come out ahead, U.S. Steel would have had

to gain more than it would lose from abandoning a

competitive position in the western market for tin mill

products. This prospect is speculative at best. Even factoring

in the potential of charging UPI a higher price for hot band

steel and the potential profits to be derived from U.S. Steel’s

50% ownership in UPI, we note that U.S. Steel supplies just

half of UPI’s hot band steel. These factual circumstances do

not alter our conclusion that U.S. Steel’s participation in the

alleged conspiracy is economically implausible.

The burden shifts to Stanislaus to establish its claim

through “specific evidence tending to show that the [coconspirators were] not engaging in permissible competitive

behavior.” In re Citric Acid Litig., 191 F.3d at 1094.

II. EVIDENCE OF CONSPIRACY

Stanislaus identifies several categories of evidence that it

argues “tend[] to show” the market allocation agreement. 

While some of the evidence may have a negative tinge, we

conclude that the evidence does not, taken together, tend to

exclude the possibility of permissible independent behavior. 

Matsushita, 475 U.S. at 588. The notion, for example, that
14 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

U.S. Steel did not compete hard enough or aggressively

enough for Stanislaus’s taste is difficult to assess or quantify. 

In any event, that characterization proffered by Stanislaus is

not the applicable standard. The question we should instead

ask is whether there is sufficient specific evidence of a

market allocation agreement—the crux of Stanislaus’s

remaining antitrust claim. Considered against the backdrop

of the market for tin mill products during this period,

Stanislaus has failed to provide sufficient “specific evidence”

to support a finding of conspiracy in light of the lack of

economic rationality of the purported agreement. In re Citric

Acid Litig., 191 F.3d at 1094.

A. Parallel pricing and pricing patterns

When UPI raised its prices, U.S. Steel also raised its

prices to some customers. Stanislaus asserts that this allowed

UPI to maintain artificially high prices in an agreed-upon

absence of competition. Of course, “[p]arallel pricing is a

relevant factor to be considered along with the evidence as a

whole; if there are sufficient other ‘plus’ factors, an inference

of conspiracy can be reasonable.” Id. at 1102 (citation

omitted).

Key to Stanislaus’s theory is that this pricing behavior

was contrary to U.S. Steel’s self-interest. Specifically,

Stanislaus argues that U.S. Steel’s decision to raise its price

to one of Silgan’s competitors despite having lower hot band

steel costs than in the previous year was not in U.S. Steel’s

economic self-interest. See In re Text Messaging Antitrust

Litig., 630 F.3d 622, 628 (7th Cir. 2010) (noting that falling

costs increase a seller’s profit margin and motivate the seller

to reduce its price). This argument, which pinpoints a single

year, fails to account for pricing patterns over multiple years. 
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 15

To get the full picture, we must juxtapose the price of tin

against the cost involved in making that tin. In particular, the

cost of hot band steel—a significant factor in tin

manufacturing—only dropped in 2009 after having jumped,

sharply, in 2008. The cost of making tin was therefore in

flux, creating uncertainty for manufacturers. U.S. Steel may

have raised tin prices in 2009 to make up for losses caused by

skyrocketing material costs a year earlier—or as a hedge

against future price increases in the market for component

parts.

Of course, Stanislaus’s critique of U.S. Steel’s pricing

behavior is also undercut by the fact that its prices were still

lower than those of UPI. This “price point” had potential,

even if unrealized, to attract customers away from UPI. This

behavior is not credibly viewed as against U.S. Steel’s

self-interest or as tending to exclude independent behavior.5

B. Information exchanges and other communications

To support an inference of conspiracy, Stanislaus offers

evidence of information exchanges between U.S. Steel and

UPI. Interfirm communications, particularly among highlevel executives, are a “plus factor” that can bolster the

inference of conspiracy. See In re Publ’n Paper Antitrust

5 Stanislaus also complains that these pricing patterns do not reflect the

historical spread between the cost of hot band steel and the price of tin

mill products, and argues that the patterns are inconsistent with declining

demand and excess manufacturing capacity. Market conditions during a

period of alleged collusion can be a plus factor that support an inference

of agreement. See, e.g., In re Publ’n Paper Antitrust Litig., 690 F.3d 51,

65 (2d Cir. 2012) (excess capacity). But Stanislaus’s arguments on this

point are spare and devoid of citations to the record.
16 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

Litig., 690 F.3d 51, 62 (2d Cir. 2012); In re Flat Glass

Antitrust Litig., 385 F.3d 350, 368–69 (3d Cir. 2004).

Executives at U.S. Steel were aware of the contract

between UPI and Silgan. In 2008, the president of UPI

emailed U.S. Steel executives an overview of the price and

other terms associated with the new contract.

The alleged conspirators argue that these communications

are irrelevant without evidence that they affected U.S. Steel’s

price to Silgan in 2009. See In re Flat Glass Antitrust Litig.,

385 F.3d at 369; In re Baby Food Antitrust Litig., 166 F.3d

112, 125 (3d Cir. 1999) (requiring “evidence that the

exchanges of information had an impact on pricing

decisions”). To show the lack of such an impact, the alleged

conspirators point to a provision in the 2005 agreement

between U.S. Steel and Silgan that limits subsequent price

increases for tin mill products to 2% in any given year.

Exchanges of information like this call to mind the

requirement that Stanislaus “must show more than a

conspiracy in violation of the antitrust laws; [it] must show an

injury to [it] resulting from the illegal conduct.” Matsushita,

475 U.S. at 586. Absent deviation from the contracted price

between U.S. Steel and Silgan, we agree that any negative

inference is more difficult for Stanislaus to show and that the

interfirm communications are of limited use. U.S. Steel’s

knowledge of the new contract between its joint venture and

Silgan has little legal significance if it did not prompt action

on U.S. Steel’s part.

Even if the U.S. Steel–Silgan contract was not affected,

Stanislaus argues that this information prompted U.S. Steel to

change the pricing for Silgan’s competitors. Despite this
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 17

relatively attenuated chain of cause-and-effect, we

nonetheless take a deeper look at this allegation.

In particular, Stanislaus asks that we take note of internal

communications that prove that UPI “made pricing decisions

based on its understanding of [U.S. Steel’s] agreement not to

compete on price” in the region. In August 2008, the

president of UPI wrote, “There is a lot going on regarding

2009 industry pricing for tin . . . . Right now our position on

2009 West Coast pricing for everyone other than Silgan is

major increases consistent with Arcelor Mittal’s

announcement and our understanding of what U.S. Steel is

doing, plus a major additive for freight to the West Coast.” 

UPI internally predicted that “[h]igh [p]rices and

[t]ransportation [c]osts [w]ill [k]eep [e]astern [s]teel in the

[e]ast.” These communications arose in the context of

observations about the difficult state of the tin market in the

previous year due to skyrocketing hot band steel prices,

increased fuel and freight costs, inexpensive imports, and

fluctuations in demand.

None of this evidence bolsters the inference that

Stanislaus would have us draw from these communications. 

Considered against the backdrop of market conditions in the

industry, it is ambiguous what the president of UPI meant

when he wrote of “our understanding of what U.S. Steel is

doing.” Stanislaus would have a jury infer that “what U.S.

Steel [was] doing” was deliberately failing to price

competitively, as agreed. It is just as plausible, if not more

so, that the phrase referred to what U.S. Steel was doing in

the face of the same challenging conditions in the tin market

at the time. Although we do not totally discount the evidence

as irrelevant, the evidence is insufficient to support the

existence of a market allocation conspiracy.
18 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

C. Spot market sale

Stanislaus also points to evidence about a spot market

sale, a circumstance in which buyers individually negotiate

one-time sales. But the evidence offered here of a single spot

market sale from U.S. Steel to one of Silgan’s

competitors—thus not involving Stanislaus’s supplier at

all—adds too little to qualify as “specific” evidence in

support of a conspiracy. In 2008, U.S. Steel sold 1,000 tons

of tin mill products to one of Silgan’s competitors on the spot

market. The customer directed the tin mill products to be

shipped to the western United States. The sale price was

higher than the national contract price between U.S. Steel and

that same customer; U.S. Steel would not negotiate despite

the customer’s complaints about the high price. Although

U.S. Steel’s one-time price does not appear to have been as

competitive as its prices set by long-term contract, what is

missing is a link to competitive pricing vis-a-vis UPI. The

record does nothing to place the sale in context—for example,

it does not reflect how frequently these types of sales

occurred or whether high spot market prices somehow

displaced its other sales. We thus treat the spot sale as

somewhat of an outlier.

Several U.S. Steel executives communicated internally

about this sale. Upon learning of the high price, U.S. Steel’s

CEO inquired, “Is this because UPI is full?” Another U.S.

Steel executive answered, “I am told this is NOT a supply

issue—but a price issue.” In another exchange, one U.S.

Steel executive commented, “not sure this is high enough but

OK now,” to which another wrote, “Greed is a deadly sin.”
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 19

The meaning of these emails is ambiguous at best, but it

does not bear on the key question of whether U.S. Steel

agreed to or did stop competing with UPI.

Perhaps anticipating that nothing concrete can be inferred

from the emails, Stanislaus characterizes the exchanges as

exhibiting an “incongruous[ly] high level of senior

management attention” to what it calls a “de minimis order”

when compared to U.S. Steel’s total annual production of 1.2

million tons. This subjective gloss on a single aspect of the

evidence does not implicate the claimed conspiracy or its

impact on pricing to Stanislaus.

D. Expert report

Finally, Stanislaus argues that the district court

improperly ignored its expert report. The district court

reviewed “the two-page portion of Dr. Rausser’s report that

Plaintiff direct[ed] the Court’s attention to,” but went on to

note that it “is nothing more than a broad overview of

Plaintiff’s argument.” The district court declined to mine the

82-page report for “substantive opinions that are not cited in

its briefing,” citing Carmen v. San Francisco Sch. Dist.,

237 F.3d 1026, 1031 (9th Cir. 2001), for the proposition that

courts “need not examine the entire file for evidence

establishing a genuine issue of fact, where the evidence is not

set forth . . . with adequate references so that it could

conveniently be found.”

The explanation that Stanislaus now offers linking the

summary conclusions to various components of the expert

report is too little, too late. Summary judgment proceedings

focus on whether there are genuine issues of fact. Specific

citations, not bulk references, are essential to pinpoint key
20 STANISLAUS FOOD PRODS. V. USS-POSCO INDUS.

facts and factual disputes. The district court was not required

to put the puzzle together from a boxful of facts, and, in line

with Carmen, may permissibly decide the motion without

mining the entire document for more substantiation.

Nonetheless, on de novo review, and despite the breezy

reference, we give Stanislaus the benefit of a full review. In

doing so, we are sympathetic to the district court’s

predicament. Not only is the report 82 pages, but the

evidentiary references are found, without much detail, in 285

footnotes, a listing of more than 180 sets of documents,

multiple websites, and an array of other evidence.

Although the expert report is well crafted and provides

useful background on the optics of the industry, it also

contains extensive discussion related to price-fixing claims

that are not at issue in the appeal. Even Stanislaus’s belated

explanation that the expert summary relates to two broad

sections of the report does little to identify factual issues or

cite to specific evidence supporting Stanislaus’s argument. 

This circumstance highlights why the appellate rules require

specific citations to the record. Fed. R. App. P. 28(a)(8)(A),

28(e); 9th Cir. R. 28-2.8. However, consideration of the

evidence (which we dug out ourselves) dealing with market

allocation does not change our analysis. The broad

conclusions and cited evidence essentiallymirror Stanislaus’s

arguments elsewhere and nothing in the market analysis

rescues Stanislaus’s case.6

 

6

 For example, the expert report does not contain any analysis of profit

margins showing that USS would actually be better off with 50% of UPI’s

profits in the western U.S. than it would be competing for its own business

in the western U.S. During oral argument, when asked whether there was

any “mathematical analysis of the profit margins” in the record “that
STANISLAUS FOOD PRODS. V. USS-POSCO INDUS. 21

CONCLUSION

In sum, Stanislaus failed to meet its burden to show

“specific evidence” of a market allocation agreement.

AFFIRMED.

shows [U.S. Steel is] actually better off with the 50% [of UPI’s profits in

the western U.S.] than the 100% [of what] they might get by competing,”

counsel conceded there was no “comparison.” Oral Argument at

7:50–8:37, Stanislaus v. USS-POSCO, (2015) (No. 13-15475)

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007321.