Persian Gulf Inc. v. BP West Coast Products LLC

1 □ 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || PERSIAN GULF INC., Individually CASE NO. 15cv1749-JO-AGS 2 and on Behalf of All Others Similarly Situated, ORDER GRANTING 13 DEFENDANTS’ MOTIONS 14 Plaintiff, FOR SUMMARY JUDGMENT Vv. 15 || BP WEST COAST PRODUCTS LLC, 16 || al., 17 Defendants. 18 RICHARD BARTLETT, et al., Lead Case No. 18-cv-1374-JO- Individually and on Behalf of All AGS (consolidated with No.18-cv- 19 || Others Similarly Situated, 1377-JO-AGS) Plaintiffs, □ 20 V. 21 || BP WEST COAST PRODUCTS LLC, 77 || et al., 23 Defendants. 24 25 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 In this putative class action for antitrust conspiracy, Defendants Chevron U.S.A. Inc. 2 ||(“Chevron”), Exxon Mobil Corporation and ExxonMobil Refining & Supply Co. 3 (“Exxon”), Phillips 66, BP West Coast Products LLC (“BP”), Tesoro Refining & 4 || Marketing Company LLC (“Tesoro”), Equilon Enterprises LLC (d/b/a Shell Oil Products 5 ||US) (“Shell”), Valero Marketing and Supply Company (“Valero”), and Alon USA Energy, 6 ||Inc. (“Alon”) (together, “Defendants”) filed motions for summary judgment. Dkts. 615, 7 ||619, 625. Defendants also filed motions to exclude the expert testimony of Plaintiffs’ 8 || proffered experts: Robert McCullough, Dr. Paul Hanouna, and Dr. Michael Williams. 9 ||Dkts. 613, 616. Plaintiffs have similarly filed motions to exclude the testimony of 10 Defendants’ proffered experts: Andrew Lipow, Dr. Janusz Ordover, and Dr. Richard 11 ||Bergin. Dkts. 622, 626. 12 For the reasons stated below, the Court grants Defendants’ motions for summary 13 ||judgment. Dkts. 615, 619, 625. The Court also grants in part Defendants’ motion to 14 || exclude the expert testimony of Dr. Williams and Dr. Hanouna on the issue of causation. 15 ||Dkt. 616. The parties’ remaining motions to exclude expert testimony, including 16 || Defendants’ motion to exclude Dr. Williams’ and Dr. Hanouna’s testimony on issues 17 || outside of causation, are dismissed as moot. Dkts. 613, 622, 626. 18 I. PROCEDURAL HISTORY 19 Plaintiff Persian Gulf Inc. (“Persian Gulf’), the operator of a retail gas station, filed 20 antitrust lawsuit on behalf of retail stations in California on July 7, 2015. See Dkt 1.' 21 June 21, 2018, individual consumers Joshua Ebright, Paul Lee, and David Rinaldi (the 22 ©. 24 ! Unless otherwise noted, citations to “Dkt.” refer to Persian Gulf, Inc. v. BP West Coast Products 25 LLC, et al., 1Scv1749-JO-AGS. 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||“Consumer Plaintiffs”) filed two separate lawsuits on behalf of consumers who purchased 2 || gasoline in California. These lawsuits alleged that eight current and former gas refiners 3 ||in California—Defendants Chevron, Phillips 66, BP, Tesoro, Shell, Valero, Exxon, and 4 |; Alon—conspired to fix gas prices in California from 2012 to present in violation of § 1 of 5 Sherman Act, Cartwright Act, Cal. Bus. & Prof. Code § 16700, et seg., and § 17200 of 6 || the Cal. Bus. & Prof. Code, commonly known as the UCL. See Dkt. 76; Bartlett, Dkt. 44. 7 On July 25, 2018, the Court consolidated the two Consumer Plaintiffs’ cases into 8 action. Bartlett, Dkt. 37. Thereafter, the Court ordered the coordination of Persian 9 ||Gulfs and Consumer Plaintiffs’ cases for discovery and motion briefing because the 10 || allegations were nearly identical. See Dkt. 143. Accordingly, the Court set a single 11 || briefing schedule governing both Persian Gulf’s and the Consumer Plaintiffs’ cases which 12 |/included deadlines for motions for summary judgment and motions to exclude expert 13 || testimony. See Dkt. 589. 14 After exhaustive discovery proceedings, Defendants Chevron, Shell, Valero, and 15 || Phillips 66 filed a joint motion for summary judgment, arguing that Plaintiffs did not have 16 || evidence to support a reasonable inference of conspiracy or causation. See Dkt. 625 (“Joint 17 ||MSJ”). The remaining Defendants joined the Joint MSJ, and Defendants Alon and Tesoro 18 || also filed separate motions for summary judgment. See Dkts. 615, 619, 630, 632, 634, 636. 19 ||In addition, the parties moved to exclude one another’s expert reports under Daubert v. 20 || Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Dkts. 613, 616, 622, 626. 21 22 23 © 24 ? See Bartlett et al v. BP West Coast Products LLC et al., 18cv1374-JO-AGS; Rinaldi et al. v. BP 25 West Coast Products LLC et al., 18-cv-1377-J ace 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 II. FACTS 2 || A. Background Information on the Gasoline Market in California 3 Plaintiffs’ price fixing allegations are best understood within the larger context of 4 ||California’s gas market and its unique supply-chain challenges. The Court, therefore, 5 || provides the following brief overview of the players in the market, how the market is 6 ||supplied, and how gas is sold in the state. 7 In California, a small group of refiners control the entirety of gas production in the 8 See, e.g., Dkt. 622, Ex. 2 (“Lipow Report”) 7 31; Dkt. 647, Ex. 1 (“McCullough 9 Report”) Ff 20, 66.2 This highly concentrated market is comprised of the eight Defendants 10 this case, including gas giants like Exxon and Chevron,’ plus additional non-Defendant 11 |/refiners with varying market shares.” Because Defendants do business in a highly 12 ||concentrated market with few players, they are admittedly conscious of one another’s 13 || pricing and actions in the market, as the actions of any one refiner can substantially impact 14 other refiners. See, eg., J. Hodgson Declaration §§ 11-15, 19-20; P. Brooks 15 16 17 || —————-- 18 3 The Court declines to rule on the admissibility of the expert opinions contained in the 19 || McCullough and Lipow reports as moot. Where there is no dispute, however, the Court has referenced these reports as sources of background information about the gas industry. 20 4 For instance, evidence in the record suggests that Exxon may have accounted for 8% of California gas supply in 2015, see Dkt. 629-1 (“Defs. Exs.”) Defs. Ex. 1 at 144:17-145:9, and Plaintiffs’ expert 21 suggests that Chevron may have accounted for 18% of California gas production during the class period. See McCullough Report § 67. > The evidence in the record also indicates that additional non-Defendant refiners may have 23 || contributed substantially to California gas production at various points during the class period. See, e.g., id. (noting that non-Defendant PBF accounted for 12% of production and non-Defendant Marathon 24 || accounted for up to 30% of production). 25 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Declaration J 96; K. Archambault Declaration 4 59; J. Harris Declaration { 6; M. O’Neal 2 Declaration ¥ 3.° 3 The California gas market largely depends on this small group of in-state refiners 4 || because California is a “gasoline island” isolated from other sources of supply. Dkt. 629- 5 (“Defs. Exs.”) Defs. Ex. 2; McCullough Report J] 37-39. California suffers from a lack 6 || of direct pipeline connectivity to other major refinery centers, such as the Gulf Coast and 7 ||the Pacific Northwest. See McCullough Report 4{ 37-39; Dkt. 722, Joint Statement of 8 || Undisputed Facts (“Joint Statement”) 9 12. Thus, California can only receive imports by 9 which is costly and requires weeks of lead time. See, e.g., Joint Statement J 12; K. 10 || Archambault Declaration [] 22—26, 34; H. Henderlite Declaration 24-26; Dkt. 699 11 |}(“Opposition”) at 29. Given refiners’ finite production capacity and the limited options for 12 external supply, prices in the California gas market are sensitive to events such as refinery 13 ||shutdowns. See, e.g., Opposition at 1; Joint Statement 9 15. According to the Attorney 14 ||General of California, because of these factors, “California’s gasoline market has been 15 || characterized by high gas and diesel prices and recurrent price spikes.” See Defs. Ex. 2 at 16 1. 17 The California gas market also faces another unique limitation: only a specific gas 18 || formulation called CARBOB may be sold in the state. California refiners produce a variety 19 gas products, such as diesel, jet fuel, and different formulations of gas, including 20 21 {| ———x“« 22 Unless otherwise stated, citations to declarations in this opinion refer to the declarations in 93 || Defendants’ Joint Appendix (hereinafter, “J.A.”) in support of their Joint Motion for Summary Judgment. Dkt. 629-2. Similarly, citations to Chevron’s, Shell’s, Exxon’s, Phillips 66’s, Valero’s, and BP’s exhibits 24 || (e.g, Chevron Ex. 1) refer to the exhibits to the declarations in the Joint Appendix at Dkt. 629-2. 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || CARBOB. Joint Statement 7 17. Within California, however, gas must meet the California 2 ||Reformulated Gasoline Blendstock for Oxygenate Blending standard, known as CARBOB. 3 ||Joint Statement FF 11, 13; 220 CCR § 2266.5. Refiners sell CARBOB directly to retail 4 || stations either (1) “at the rack,” i.e., distribution terminals where retailers can pick up gas; 5 || or (2) via “Dealer Tankwagon,” i.e., delivery by truck from the rack to the retail station. 6 || Joint Statement § 18. Refiners set the wholesale prices for gas sold to retailers at the rack 7 ||and by Dealer Tankwagon. See C. Yates Declaration { 6; D. Smith Declaration □□□□ C. 8 Dickson Declaration 7 27; J. Hodgson 9 4-5; M. O’Neal Declaration 42; P. Brooks 9 ||Declaration ff 93-94; K. Archambault Declaration 55-56; Dkt. 621-1—2, Tesoro’s 10 || Appendix (“T.A.”), W. Eckard Declaration { 21. 1] Once gas reaches retail stations, it is sold by retail stations directly to consumers at 12 ||the pump. Retail stations in California are owned either by refineries or by independent 13 parties. Joint Statement f{ 19-20. In the latter scenario, independent retail stations 14 ||can enter licensing agreements with refiners that give them the right to sell gas under a 15 ||refiner’s brand. Jd. § 20. For example, Plaintiff Persian Gulf purchased gas from Phillips 16 ||66 via Deal Tankwagon and licensed the right to sell under the Phillips 66 brand. □□□ 17 ||Independent owners, like Plaintiff Persian Gulf, autonomously set prices at their retail 18 || stations, while refiners set prices at their corporate-owned retail stations. See, e.g.,C. Yates 19 || Declaration § 7; P. Brooks Declaration 4 9. 20 California refiners, like many of the eight Defendants in this case, also buy and sell 21 ||CARBOB and other gas products to cover their supply shortages or dispose of excess 22 ||supply. Joint Statement § 21; C. Yates Declaration § 8; M. Perez Declaration □□ 4—5; L. 23 ||Lockhart Declaration § 4. In order to buy and sell, as described above, refiners like the 24 || Defendants employ gas traders to trade on the “spot market,” a trading market for gas on 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||the West Coast. Joint Statement § 21. Gas traders perform two primary functions for their 2 respective refineries, (1) purchasing gas to cover production shortages, and (2) selling gas 3 ||to compensate for excess production. See, e.g., Lipow Report F920, 22, 26. When 4 || executing spot-market transactions, West Coast traders either communicate directly with 5 another or through independent brokers on a bid-ask basis, typically negotiating within 6 || a range of the current spot-market price, reflected by pricing agencies such as the Oil Price 7 Information Service (“OPIS”). See J.A. 562—76, Phillips Ex. 17; M. O’Neal Declaration 8 1194; C. Dickson Declaration § 59; L. Lockhart Declaration §§ 12-13; H. Henderlite 9 || Declaration { 14. West Coast traders can refer to OPIS prices when trading because OPIS 10 || publishes the daily high, low, and average West Coast spot prices based on a sampling of 11 actual trades executed in the spot market that day. See id. 12 ||B. Plaintiffs’ Conspiracy Case 13 1. Plaintiffs’ Initial Conspiracy Allegations 14 In Plaintiffs’ complaints, they initially alleged that Defendants entered a price-fixing 15 || conspiracy on or around February 2012. See Dkt. 76 at 64; Bartlett, Dkt. 44 at 46. While 16 complaints included allegations that Defendants manipulated supply to raise prices and 17 |}entered into exchange agreements in furtherance of a conspiracy,’ Plaintiffs’ original 18 theory of the case centered on allegations that Defendants utilized the cover of refinery 19 || maintenance to raise prices and take advantage of the reality that the California gas market 20 ||is sensitive to refinery outages. See generally id. Plaintiffs claimed that Defendants 21 |;planned and synchronized unnecessary maintenance in order to raise prices. See id. 22 23 24 7 See Dkt. 76 at 32, 43, 67; Bartlett, Dkt. 44 at 26, 35-41. 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||Further, Plaintiffs alleged that certain of Defendants’ outages were not outages at all and 2 emissions data demonstrated that Defendants continued to produce despite claiming to 3 shut down. See id. Based on the evidence and arguments presented to the Court on 4 ||summary judgement, Plaintiffs appear to have wholly abandoned these “refinery 5 ||maintenance” allegations following discovery. See generally Opposition. 6 2. Plaintiffs’ Current Evidence of Conspiracy 7 Plaintiffs now argue and seek to prove that the eight Defendants conspired to fix gas 8 || prices by engaging in multiple coordinated actions designed to reduce supply and raise gas 9 || prices in California. Plaintiffs describe a conspiracy where Defendants blocked imports, 10 || increased exports, and lowered production levels to keep gas supply low in California, all 11 || while manipulating public facing gas-market prices to increase their profits. See generally 12 ||Opposition. This conspiracy was purportedly made possible by Defendants’ systemic 13 || exchanges of sensitive information and cooperation to cover each other’s supply shortages. 14 ||See id. As set forth in their discovery responses, Plaintiffs maintain that Defendants 15 || entered into, and began participating in, this illegal agreement in 2011: “Defendants, each 16 ||and all, agreed, and entered into an agreement . . . by no later than August 1, 2011, to fix, 17 || maintain, or make artificial prices for gasoline sold in California.” Dkt. 455, Ex. C at 12; 18 || Dkt. 455, Ex. D at 13. 19 In their summary judgment opposition, Plaintiffs point to the following in support 20 |lof their allegations of a price fixing conspiracy: (1) Defendants entered into exchange 21 agreements with one another throughout the class period to lend each other barrels of gas; 22 ||(2) Defendants systematically exchanged confidential information with one another; 23 ||(3) Defendants restricted gas supply in California, including by running their refineries 24 || below capacity, preventing gas imports, and unnecessarily exporting gas out of California; 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||(4) In 2015, Defendants cooperated with Exxon after its refinery explosion instead of 2 leveraging the explosion to gain market share; (5) Defendants used various strategies to 3 ||manipulate public facing gas prices, including through a “gentleman’s agreement,” wash 4 |\ trades, selective price reporting, and false public statements. 5 Ill. LEGAL STANDARDS 6 ||A. Summary Judgment Standards 7 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 8 || Procedure if the moving party demonstrates the absence of a genuine issue of material fact 9 || and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 10 (1986). A fact is material when, under the governing substantive law, it could affect 11 ||the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 12 dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury 13 |/to return a verdict for the nonmoving party. Id. at 248-50. 14 A party seeking summary judgment always bears the initial burden of establishing 15 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 16 can satisfy this burden in two ways: (1) by presenting evidence that negates an 17 ||essential element of the nonmoving party’s case; or (2) by demonstrating that the 18 ||/nonmoving party failed to establish an essential element of the nonmoving party’s case on 19 || which the nonmoving party bears the burden of proof at trial. Jd. at 322-23. The court 20 || must view all inferences drawn from the underlying facts in the light most favorable to the 21 ||nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587— 22 || 88 (1986). 23 At the summary judgment stage, the parties have the burden to support their motion 24 || and opposition with evidence and specific references to the record that they wish the Court 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||to consider. Fed. R. Civ. P. 56(c); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 2 1026, 1031 (9th Cir. 2001). It is not the Court’s task “to scour the record in search of a 3 || genuine issue of triable fact. [The Court relies] on the nonmoving party to identify with 4 ||reasonable particularity the evidence that precludes summary judgment.” Keenan v. 5 || Allen, 91 F.3d 1275, 1279 (9th Cir. 1996); Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 6 Cir. 1991) (“district court is under no obligation to mine the full record for issues of 7 ||triable fact”); Asset Mktg. Sys. Ins. Servs., LLC v. McLaughlin, 2007 WL 3232507, at *1 8 Cal. Nov. 1, 2007) (failure to cite to evidence “is a complete failure of proof”). 9 Pointing to an admissible expert opinion is one way that a party can create a triable 10 of material fact. Nevertheless, courts need not defer to an expert when the evidence 11 clear and conflicts with the expert’s testimony. In re Apple Computer Sec. Litig., 886 12 || F.2d 1109, 1116 (9th Cir. 1989); Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856-57 13 || (9th Cir. 2019) (“[e]xpert testimony cannot create a genuine issue of material fact if it rests 14 ||/on assumptions that are not supported by evidence”). Moreover, “an expert report cannot 15 || be used to prove the existence of facts set forth therein.” Jn re Citric Acid Litig., 191 F.3d 16 || 1090, 1102 (9th Cir. 1999); see also Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d 1421, 17 || 1440 (9th Cir. 1995). Specifically, in the antitrust context, “[e]xpert testimony is useful as 18 ||a guide to interpreting market facts, but it is not a substitute for them.” Brooke Grp. Ltd. 19 ||v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993); Matsushita, 475 U.S. 20 |/at 594 n.19. 21 Standards Governing Antitrust Cases 22 On summary judgment in an antitrust conspiracy case, a party can move to show that 23 is no genuine dispute of material fact on any of the essential elements of a plaintiffs 24 || price fixing claim: (1) conspiracy to fix prices in violation of antitrust law; (2) injury—or a 10 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||“impact”—resulting from that violation; and (3) damages. 15 U.S.C. § 15; Olean 2 || Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665-66 (9th Cir. 3 ||2022); see also Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1101-02 4 || (9th Cir. 1999). Injury in the antitrust context is “injury of the type that the antitrust laws 5 || were intended to prevent and that flows from that which makes the defendants’ acts 6 |}unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). 7 ||Damages are measured only after antitrust impact has been demonstrated. Olean, 31 F.4th 8 || at 666 (9th Cir. 2022). 9 On the first element, conspiracy, a genuine issue of material fact can be established 10 either by direct evidence that Defendants agreed to fix prices or circumstantial evidence 11 which a reasonable factfinder could infer that Defendants entered into such an 12 ||agreement. Citric Acid, 191 F.3d at 1093. When the evidence is circumstantial, the 13 ||“crucial question” for the Court is “whether all the evidence considered as a whole can 14 reasonably support the inference that [Defendants] conspired” to fix prices. Jd. at 1097. 15 The Ninth Circuit applies the following two-step framework when a □□□□□□□□□□□ 16 ||conspiracy allegations are based solely on circumstantial evidence. At step one, “the 17 || defendant(s] can ‘rebut an allegation of conspiracy by showing a plausible and justifiable 18 ||reason for its conduct that is consistent with proper business practice.’” Jd. at 1094 19 || (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). Defendants 20 || may satisfy this burden by showing that the allegedly conspiratorial action “was in each 21 defendant’s independent self-interest.” Jd. at 1095. At step two, “[t]he burden then shifts 22 || back to the plaintiff to provide specific evidence tending to show that the defendant was 23 ||not engaging in permissible competitive behavior.” Jd. at 1094. Once Defendants have 24 || met their burden at step one, Plaintiffs must “come forward with specific factual support 25 il 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || for its allegations of conspiracy” to avoid summary judgment. Barnes v. Arden Mayfair, 2 759 F.2d 676, 680 (9th Cir. 1985) (citation omitted). 3 Plaintiffs can meet this “step two” burden by offering proof of parallel conduct 4 |lamong alleged conspirators alongside “plus factors’—that is, additional circumstantial 5 ||evidence that when combined with parallel-conduct evidence, reasonably supports an 6 ||inference of conspiracy. In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 7 1186, 1193-94 (9th Cir. 2015). Conscious parallelism—parallel conduct by competitors 8 || who adopt similar policies around the same time for the same reasons—is neither “in itself 9 || unlawful” nor uncommon. /d. at 1193; Stanislaus Food Prods. Co. v. USS-POSCO Indus., 10 F.3d 1084, 1092 (9th Cir. 2015); Brooke Grp., 509 U.S. at 227; Theatre Enters., Inc. 11 ||v. Paramount Film Distrib. Corp., 346 U.S. 537, 540-41 (1954). In fact, conscious 12 || parallelism or parallel conduct is a common occurrence in concentrated, interdependent 13 ||markets among players who “recogniz[e] their shared economic interests and their 14 || interdependence with respect to price and output decisions.” Bell Atl. Corp. v. Twombly, 15 ||550 U.S. 544, 553-54 (2007) (quoting Brooke Grp., 509 U.S. at 227). Parallel conduct 16 || alone, therefore, is not sufficient to support an inference of conspiracy, but “it is a relevant 17 || factor to be considered along with the evidence as a whole” in determining whether the 18 || facts give rise to a reasonable inference of conspiracy. Citric Acid, 191 F.3d at 1102. 19 In order to distinguish between lawful conscious parallelism and unlawful 20 conspiracy, courts require that additional “plus factor” evidence that “tend[s] to rule out 21 || the possibility that the defendants were acting independently.” Twombly, 550 U.S. at 554 22 |\(citing Matsushita, 475 U.S. 574); see also Monsanto Co. v. Spray-Rite Serv. Corp., 465 23 ||U.S. 752, 763-64 (1984). “[P]lus factors are economic actions and outcomes that are 24 ||largely inconsistent with unilateral conduct but largely consistent with explicitly 29 12 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || coordinated action.” Musical Instruments, 798 F.3d at 1194. Plus factors may include 2 || circumstantial evidence demonstrating “a common motive to conspire, evidence that shows 3 ||that the parallel acts were against the apparent individual economic self-interest of the 4 || alleged conspirators, and evidence of a high level of inter-firm communications,” among 5 things. Ross v. Citigroup, Inc., 630 F. App’x 79, 82 (2d Cir. 2015), as 6 || corrected (Nov. 24, 2015) (citation omitted). Whatever form this “plus factor” evidence 7 takes, it must support the inference that the Defendants’ conduct is more consistent with 8 ||conspiracy than with unilateral decision. Musical Instruments, 798 F.3d at 1194. 9 ||“[C]onduct as consistent with permissible competition as with illegal conspiracy does not, 10 || standing alone, support an inference of antitrust conspiracy” at the summary judgment 11 ||stage. Matsushita, 475 U.S. at 587-88. 12 IV. EVIDENTIARY OBJECTIONS 13 Before turning to the substance of the summary judgment and expert exclusion 14 || motions, the Court briefly addresses the parties’ evidentiary objections. Plaintiffs made 15 |;over 350 objections to Defendants’ declarations, while Defendants, in turn, objected to 16 || over 100 of Plaintiffs’ exhibits. See Dkt. 699-1; Dkt. 719-2. The bulk of the objections on 17 ||both sides consisted of “boilerplate” objections on various grounds unsupported by 18 || explanation—e.g., “Hearsay,” “Lack of foundation and personal knowledge regarding sale 19 || of Carson refinery,” and “Best Evidence Rule.” See id. Defendants also objected to the 20 ||admissibility of all three of Plaintiffs’ expert reports because they were unsworn and 21 || unaccompanied by a declaration. See Dkt. 719-2. 22 Given the high volume of boilerplate objections, the Court will only rule on the 23 || objections to evidence that the Court considers in ruling on the motions currently before it. 24 || See Doe v. Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009) (“it is often 2 13 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||unnecessary and impractical” to rule on each evidentiary objection at summary judgment, 2 || “especially when many of the objections are boilerplate recitations of evidentiary principles 3 blanket objections without analysis applied to specific items of evidence”); Pinson v. 4 || Prieto, 2014 WL 7339203, at *4 (C.D. Cal. Dec. 19, 2014) (declining to rule on objections 5 ||to evidence that was immaterial to the summary judgment decision). The Court therefore 6 || addresses below the categories of evidence relevant to its rulings. 7 Plaintiffs’ Objections to Declarations Submitted by Defendants 8 Defendants submitted the declarations of over twenty company executives and 9 traders to testify about specific actions the company took and to explain the business 10 ||reasons behind those actions. See Dkt. 629-2. Plaintiffs objected to these declarations on 11 || grounds of hearsay, lack of personal knowledge, the best evidence rule, and improper legal 12 ||conclusions. See Dkt. 699-1. 13 I. Personal Knowledge Objections to Defendants’ 30(b)(6) Declarations 14 First, the Court declines to reject declarations submitted by Defendants containing 15 ||Rule 30(b)(6) testimony on the grounds that the corporate witnesses lacked personal 16 ||knowledge. See Opposition at 57-60. By definition, corporate witnesses (also called 17 ||“30(b)(6) witnesses”) testify regarding the company’s knowledge, not the individual’s 18 || personal knowledge. Fed. R. Civ. P. 30(b)(6). A 30(b)(6) witness designated to testify to 19 || matters on behalf of the company has a duty to prepare by reviewing documents, speaking 20 || with witnesses, and otherwise gathering the information available to the company on the 21 ||topics the witness has been designated to testify. See id; see also Bd. of Trs. of Leland 22 || Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008) (noting that 23 || Rule 30(b)(6) explicitly requires a company to prepare designees to testify on its behalf as 24 ||to all matters reasonably available to the company; personal knowledge of the deponent is 25 14 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || “of no consequence”). Thus, a 30(b)(6) witness’s testimony is determined by the limits of 2 ||the company’s knowledge, not the individual’s personal knowledge. See id.; Cooper v. 3 || United Air Lines, Inc., 82 F. Supp. 3d 1084, 1096 (N.D. Cal. 2015) (overruling objections 4 || based on personal knowledge with respect to 30(b)(6) declarations on summary judgment). 5 || Because 30(b)(6) witnesses may testify on behalf of the company at trial, they are similarly 6 || allowed to do so at summary judgment. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th 7 || Cir. 2003) (finding that evidence that can be presented in an admissible form at trial is 8 ||admissible on summary judgment); see also Univ. Healthsystem Consortium v. 9 || UnitedHealth Grp., Inc., 68 F. Supp. 3d 917, 921 (N.D. Ill. 2014). 10 In response to Plaintiffs’ objections for lack of personal knowledge, Defendants 11 || explained that the following declarations (or portions thereof) contain designated 30(b)(6) 12 corporate testimony: K. Archambault (BP), C. Yates (Chevron), C. Dickson (Exxon), R. 13 ||Sharum (Phillips 66), J. Harris (Shell), and P. Brooks (Valero). See Dkt. 719-2. 14 Defendants have made a showing that the above corporate witnesses were designated to 15 || testify on broad aspects of Defendants’ businesses, including trading strategy, imports and 16 ||exports, maintenance, public communications, trade associations events, exchange 17 ||agreements, refinery production, trading, and price setting. C. Yates Declaration 7 5; J. 18 || Harris Declaration {J 4-5; C. Dickson Declaration 4; R. Sharum Declaration □ 1; P. 19 || Brooks Declaration J 5 & n.1; K. Archambault Declaration 75. Plaintiffs did not argue 20 ||otherwise; while they raised blanket “personal knowledge” objections to these 21 || declarations, they did not argue that any testimony was outside the scope of the topics for 22 ||these 30(b)(6) witnesses. See Opposition 57-60; Dkt. 699-1. The Court, therefore, 23 || overrules Plaintiffs’ personal knowledge objections: K. Archambault Declaration JJ 23-— 24 34, 39, 66, 68-70, 72, 74; C. Yates Declaration §§ 35-36, 46, 54, 56-67; C. Dickson 15 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Declaration ff 13, 23; R. Sharum Declaration 10-17, 19, 20-21, 23, 25-28, 30-33; J. 2 || Harris Declaration 17, 21, 24; P. Brooks Declaration {J 22, 26, 32, 36, 38, 47-49, 54, 3 || 58-59, 72-75, 82, 85, 87-88, 90, 103, 105. 4 2. Personal Knowledge Objections to Defendants’ Non-30(b)(6) Declarations 5 Second, the Court overrules Plaintiffs’ objections to Defendants’ non-30(b)(6) 6 || declarations to the extent that the declarants’ personal knowledge can be inferred from the 7 || declarations themselves. Federal Rule of Civil Procedure 56(c)(4) requires declarations to 8 || be based on personal knowledge, but that requirement “imposes only a ‘minimal □□□□□□□□□ 9 || Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (citation omitted). In 10 || determining whether this requirement is met, the Court can infer personal knowledge from 11 |/the declaration itself, including the declarant’s role in the company, the declarant’s 12 || participation in certain matters, and the declarant’s statements that her declaration is based 13 || on personal knowledge. Barthelemy v. Air Lines Pilots Ass ’n, 897 F.2d 999, 1018 (9th Cir. 14 1990) (personal knowledge of declarants can be “inferred from their positions and the 15 ||nature of their participation in the matters to which they swore”); Sea-Land Serv., Inc. v. 16 ||Lozen Int’l, LLC., 285 F.3d 808, 819 (9th Cir. 2002). 17 After a thorough review of the declarations from Defendants’ corporate executives 18 || and traders, the Court concludes that the personal knowledge requirement is satisfied with 19 ||regard to the following: J. Yomtoob Declaration ff 13, 17, 24-25; H. Henderlite 20 || Declaration 9] 16, 24-27, 30; S. Roveda Declaration §J 10-11, 13; M. Perez Declaration 21 ||4 10; J. Hodgson Declaration ff 4, 9-12, 15, 20, 23, 27-28; N. Weinberg-Lynn Declaration 22 1199 10-14, 18-21, 24-27, 31, 32; D. Smith Declaration ff 3, 10; J. Marino Declaration □□□ 3— 23 ||4; S. Rodrick Declaration J§ 9-10; L. Lockhart Declaration [J 4, 7-8, 21, 29-30, 32, 43, 24 ||47; E. Pestano Declaration §§ 43-45, 50; R. Plumier Declaration 7 13; G. Johnson 16 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Declaration J 7-8, 10; M. Pais Declaration J 13. Each of the above non-30(b)(6) declarants 2 || was either a high-level employee for a Defendant and intimately involved with that 3 || Defendant’s business practices or was a trader offering information relevant to trading. See 4 || Dkt. 629-2. In addition, every declarant swore that his or her declaration was based on 5 || personal knowledge and that each could competently testify with respect to the information 6 described. See id. The foregoing allows the Court to infer personal knowledge from the 7 || declarations themselves, and thus, Plaintiffs’ personal knowledge objections to the above 8 || testimony are overruled. See Strong, 724 F.3d at 1045; Barthelemy, 897 F.2d at 1018. 9 3. Objections to Non-Hearsay Testimony in Defendants’ Declarations 10 Third, the Court overrules Plaintiffs’ hearsay objections to Defendants’ declarations 11 ||to the extent that Plaintiffs objected to evidence that does not contain an out-of-court 12 statement or is not being offered for its truth. Hearsay is defined in Federal Rule of 13 || Evidence 801 as an out-of-court statement offered to prove the truth of the matter asserted 14 the statement. Fed. R. Evid. 801(c); United States v. Lopez, 913 F.3d 807, 826 (9th Cir. 15 |}2019). While all declarations are technically out-of-court statements, declarations offered 16 ||in support of summary judgment are not hearsay if the testimony could be presented in an 17 || admissible form at trial. See Fraser, 342 F.3d at 1036-37. Plaintiffs frequently objected 18 ||to portions of Defendants’ declarations as hearsay without explanation, but a review of 19 || those portions reveals that this testimony, if presented live at trial, would not be out-of- 20 statements. Rather, the testimony comprised statements of the declarant’s personal 21 |;knowledge of business practices, the market, annual meetings, efc. See, e.g., K. 22 || Archambault Declaration § 27; C. Yates Declaration { 36. In other instances, where the 23 ||testimony incorporated an out-of-court statement, the statement was not being offered for 24 || the truth of the matter asserted. See, e.g., P. Brooks Declaration {48 (Homeland Security’s 25 17 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || statement offered to show effect on Valero). Based on the foregoing, the Court overrules 2 || Plaintiffs’ hearsay objections to the following testimony: K. Archambault Declaration 3 27; J. Yomtoob Jf 16, 22; C. Yates Declaration J 36; H. Henderlite Declaration JJ 24— 4 30; P. Brooks Declaration Jf 48, 72, 74; R. Pluimer Decl. § 6; R. Sharum Declaration 5 |/4 10; S. Rodrick Declaration ¥ 10; L. Lockhart J 47, 50. 6 The Court does sustain Plaintiffs’ hearsay objections where the evidence takes the 7 || form of out-of-court statements offered for their truth and no hearsay exception appears to 8 ||apply. Fed. R. Evid. 801-803. In accordance with these principles, the Court sustains the 9 || following hearsay objections: J. Yomtoob Declaration J 17 (the Court does not consider 10 || statements to the extent they are being offered for truth rather than to demonstrate effect 11 on the listener); H. Henderlite Declaration { 26 (the Court does not consider BPWCP-6 to 12 || the extent it is being offered for the truth); N. Weinberg-Lynn Declaration § 32 (the Court 13 not consider PSX-4—5); R. Sharum Declaration □ 30 (the Court does not consider 14 || PSX-12 or PSX-14). 15 4. Objections to Defendants’ Business Records as Hearsay 16 Fourth, over Plaintiffs’ objections, the Court will consider documents that meet the 17 ||business records exception to hearsay. The business records exception provides that a 18 || writing is admissible if, (1) it is “made or transmitted by a person with knowledge at or 19 the time of the incident recorded,” and (2) “is kept in the course of regularly conducted 20 || business activity.” United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985); Fed. R. 21 ||/Evid. 803(6). Here, Plaintiffs objected to certain of Defendants’ exhibits consisting of 22 ||emails, slide decks, and internal business reports as hearsay without further explanation. 23 || See Dkt. 699-1. Defendants responded that these documents were admissible because they 24 || were records kept in the ordinary course of business. See Dkt. 719-2. The Court agrees 18 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||that where the documents appear to have been created regularly pursuant to Defendants’ 2 || business activities (e.g., export reports or financial presentations) and the accompanying 3 || declarations indicated that they were created at or near the time of the event, the business 4 ||records exception applies. For the above reasons, the Court overrules Plaintiffs’ hearsay 5 ||objections to the following exhibits because it concludes that the business records 6 ||exception to the hearsay rule applies: K. Archambault Declaration § 68; J.A. □□□□□□□ 7 Exhibit BPWCP-1; S. Roveda Declaration Jf 10-11; J.A. 52-67, Chevron Exs. □□□□ J.A. 8 428-48, Phillips Exs. 1-3; J.A. 649-88, Phillips Ex. 24; P. Brooks Declaration □□□□ 26, 79; 9 806-13, Valero Ex. 15; G. Johnson Declaration J 7—8, 10. 10 5. Objections to Defendants’ Testimony Discussing Documents 11 Fifth, the Court overrules Plaintiffs’ objections to testimony discussing documents 12 ||to the extent those objections are based on a misapprehension that the best evidence rule 13 || imposes a blanket prohibition on such testimony. That is not the case. The best evidence 14 provides that “[iJn proving the contents of a writing,” the original is required unless 15 ||certain exceptions apply. Fed. R. Evid. 1002. For the most part, the declarants’ references 16 ||to documents were not attempts to prove the contents of those documents but were 17 ||comments upon state of mind or beliefs about the contents. In addition, most of the 18 ||documents referenced are already in the record. In other cases, declarants were simply 19 || testifying to their personal knowledge and do not reference documents, let alone attempt 20 ||to prove their contents. For these reasons, the Court overrules Plaintiffs’ best evidence 21 || objections to the following pieces of evidence: K. Archambault Declaration {{] 35, 66, 67, 22 ||69-70; J. Yomtoob Declaration ff 16-17, 22, 24; C. Yates Declaration {J 25, 35, 56; H. 23 || Henderlite Declaration §¥ 23, 25, 30; J. Hodgson Declaration Jf 9, 13-14; N. Weinberg- 24 ||Lynn Declaration 10, 13-14; R. Sharum Declaration ff 11, 17, 19, 20, 23, 25—28, 30— 25 19 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||33; D. Smith Declaration § 3; J. Marino Declaration {fj 4, 10-15; J. Harris Declaration 2 |199 19, 21-24, 26; S. Rodrick Declaration {{ 7, 9-10; P. Brooks Declaration {J 36, 88; L. 3 || Lockhart Declaration J§ 42, 43-45, 47; R. Pluimer Declaration §§ 6, 11; G. Johnson 4 || Declaration § 7-8, 10. 5 6. Objections to Declarations Containing Improper Legal Conclusions 6 Finally, turning to Plaintiffs’ objections regarding improper legal conclusions, such 7 ||objections are unnecessary because the Court only considers facts contained in 8 ||declarations, not legal conclusions or argumentative statements. “[S]tatements in 9 || declarations [containing] improper legal conclusions, or argumentative statements . . . will 10 || not be considered on a motion for summary judgment. Objections on any of these grounds 11 simply superfluous in this context.” Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 12 1110, 1119 (E.D. Cal. 2006). Plaintiffs objected to Defendants’ declarations containing 13 || statements such as, that a decision was “in furtherance of individual businesses interest,” 14 a sale was in a Defendant’s “economic interest,” that an action was “economically 15 rational,” that a trade was “not a wash trade,” or that “Plaintiffs are wrong.” See, e.g., K. 16 || Archambault Declaration § 27; R. Sharum Declaration § 12; S Rodrick Declaration { 10. 17 || The Court agrees that these types of statements are not facts and therefore, the Court does 18 consider them. Nonetheless, where a paragraph containing an improper legal 19 || conclusion is otherwise bookended by admissible statements, as is often the case here, the 20 Court has considered the admissible factual evidence but disregarded the improper legal 21 ||conclusions and argumentative statements. 22 ||B. Defendants’ Evidentiary Objections 23 Plaintiffs submitted over 200 exhibits in support of their oppositions to summary 24 judgment. See Dkts. 619-3—16, 689-2—4, 697-1, 781-2 (“Pltfs. Exs.”). Defendants objected a 20 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 many of these exhibits on grounds of relevance, hearsay, and Plaintiffs’ failure to 2 ||identify certain documents in their interrogatory responses. See Dkt. 719-2. Defendants 3 ||also argued that Plaintiffs’ expert reports were inadmissible because they were unsworm 4 ||and unaccompanied by an affidavit. See id. 5 I. The Court Considers Only Relevant Evidence 6 First, the Court declines to rule on Defendants’ objections on the grounds of 7 ||relevance because it is unnecessary to resolve the motions before the Court. Relevance is 8 || duplicative of the summary judgment standard. Sandoval v. Cnty. of San Diego, 985 F. 3d 9 ||657, 665 (9th Cir. 2021). “[I]f evidence submitted on summary judgement could create a 10 || genuine dispute of material fact, it is, by definition . . . relevant,” and if it cannot create a 11 genuine dispute of material fact, “there is no need for the court to separately determine 12 || whether it is relevant.” Jd. Accordingly, the Court will not further address Defendants’ 13 relevance objections. 14 2. Defendants’ Hearsay Objections to its own Statements 15 Second, the Court overrules Defendants’ hearsay objections to the extent that 16 || Defendants objected to evidence of their own statements, which is not hearsay. An out-of- 17 || court statement offered for its truth is not hearsay if a party’s own statement or their agent’s 18 || statement is being offered against them. Fed. R. Evid. 802(d)(2). A statement is admissible 19 this context when an employee of a defendant makes a statement in the scope of her 20 |}employment. Jd. at 802(d)(2)(D). Plaintiffs submitted evidence consisting of emails and 21 instant messages among Defendants’ employees discussing logistics, deals, and trades. See 22 ||Pitfs. Exs. 1-198. These statements appear to have been made in the context of 23 {;employment, and Defendants did not offer any basis for the Court to conclude otherwise. 24 25 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Accordingly, the Court overrules Defendants’ hearsay objections to Plaintiffs’ exhibits that 2 || contain communications made by Defendants or their agents.® 3 3. Defendants’ Objections to Admitting Professor Severin Borenstein’s Blog Post 4 Third, the Court sustains Defendants’ objection to the blog post of Professor Severin 5 ||Borenstein on the ground that it is inadmissible hearsay. Pltfs. Ex. 2. In ruling on 6 Defendants’ objection, the Court considers whether the out-of-court statements contained 7 |\in the blog post are being offered for their truth and, if so, whether there is an applicable 8 ||hearsay exception. See Fed. R. Evid. 801, 803. In the blog post, Professor Borenstein 9 || opined on the causes of gas prices in California. See Pltfs. Ex. 2. In opposition to summary 10 judgment, Plaintiffs cited to Professor Borenstein’s blog and stated that he “demonstrated 11 ||that factors internal to refiners, not externalities, caused . . . higher prices,” and described 12 || his conclusions to support their own claims of anticompetitive conduct. See Opposition at 13 || 1-2; Pltfs. Ex. 2. Because Plaintiffs offered Professor Borenstein’s blog statements for 14 || their truth to bolster their own claims, the exhibit is inadmissible hearsay unless a hearsay 15 exception applies. 16 Although Plaintiffs did not argue that any hearsay exception applied, the Court 17 confirms that there is no applicable exception. The learned treatise exception to hearsay 18 ||permits treatises, periodical, or pamphlets if, (1) an expert relies upon it on direct 19 ||examination or it is called to the expert’s attention on cross-examination, and (2) the 20 || publication is established as a reliable authority. See Fed. R. Evid. 803(18); Diodem, LLC 21 || v. Lumenis Inc., 2005 WL 6220667, at *6 (C.D. Cal. Jan. 10, 2005) (discussing the dual 22 |j___— SSS 8 Except where the element of conspiracy is met with respect to Defendants in this opinion, the 24 || Court finds that the co-conspirator exception (allowing statements made by a party’s co-conspirator during || and in furtherance of the conspiracy to be cdmited agains the party) does not apply. 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||requirements of Fed. R. Evid. 803(18)). This exception has not been established here; 2 therefore, the Court will not consider the blog post for its truth. 3 4. Documents Not Identified in Interrogatory Responses 4 Fourth, over Defendants’ objections, the Court will consider Plaintiffs’ evidence not 5 ||cited in their interrogatory responses because the Court does not have the necessary 6 information to exclude this evidence. Rule 26(e) requires a party to supplement discovery 7 ||responses “in a timely manner” when it learns that the response is incomplete or incorrect 8 ||and the information has not otherwise been made known to the opposing party. Fed. R. 9 || Civ. P. 26(e). Failure to comply with Rule 26(e) can result in the exclusion of evidence 10 unless the failure to supplement was substantially justified or harmless. Fed. R. Civ. 11 ||P. 37(c). Whether supplementation is timely under Rule 26(e) hinges on facts such as when 12 || the original disclosure was made, when a party discovered its response was incomplete, 13 || when the supplementation was made in relation to those events, etc. None of those facts 14 || are in the record, let alone facts that would aid the Court in determining whether a late 15 || disclosure was justified or harmless under Rule 37(c). Accordingly, on the present record, 16 Court overrules Defendants’ objections to exhibits not previously disclosed in 17 || Plaintiffs’ interrogatory responses. 18 5. Objections to Plaintiffs’ Expert Reports 19 Lastly, the Court overrules Defendants’ objections to Plaintiffs’ expert reports as 20 ||unverified because the reports have been sufficiently verified through deposition 21 ||testimony. Liebling v. Novartis Pharm. Corp., 2014 WL 12576619, at *1 (C.D. 22 Mar. 24, 2014) (collecting cases). “[F]or an expert opinion to be considered 23 summary judgment, it must be accompanied by a proper affidavit or deposition 24 || testimony; courts in the Ninth Circuit have routinely held that unsworn expert reports are 25 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 inadmissible.” FNBN-RESCON I LLC v, Ritter, 2014 WL 979930, at *5 (D. Nev. Mar. 12, 2 2014) (citation and internal quotations omitted); King Tuna, Inc. v. Anova Food, Inc., 2009 3 || WL 650732, at *1 (C.D. Cal. Mar. 10, 2009) (expert report can be verified by deposition 4 summary judgment purposes). While these expert reports are unaccompanied by 5 ||declarations, the parties have submitted excerpted deposition testimony of Plaintiffs’ 6 || experts that authenticates their reports. Defs. Exs. 3, 8, 9, 13-14, 22, 25-27. Based on the 7 || deposition testimony in the record, the verification requirement is met. 8 V. CONSPIRACY TO FIX PRICES 9 || A. Plausibility of Allegations 10 As a threshold matter, the Court considers whether Plaintiffs allege a plausible 11 ||theory of conspiracy that makes practical economic sense for the alleged conspirators. 12 || Matsushita, 475 U.S. at 596. Matsushita requires courts to engage in this analysis because 13 || “‘[t]he absence of any plausible motive [for Defendants] to engage in the conduct charged 14 ||is highly relevant to whether a ‘genuine issue for trial’ exists.” Jd.; Stanislaus, 803 F.3d at 15 ||1090 (“[w]e first analyze whether the alleged conspirators would have had a rational 16 || motivation to conspire”). The question is not whether Defendants would have a motive to 17 || conspire generally but whether Defendants would have a motive to conspire specifically in 18 || the way alleged by Plaintiffs. Matsushita, 475 U.S. at 577-82 (finding no rational motive 19 || under plaintiffs’ theory that 21 defendants conspired over a 20-year period to cut prices in 20 hopes of expanding their market share in the future—defendants had no incentive to 21 || suffer losses based on speculative future profits); see also Eastman Kodak Co. v. Image 22 || Tech. Servs., Inc., 504 U.S. 451, 468 (1992). This plausibility inquiry does “not introduce 23 ||a special burden on plaintiffs facing summary judgment in antitrust cases,” but merely 24 25 24 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || articulates “that the nonmoving party’s inferences be reasonable in order to reach the jury.” 2 || Kodak, 504 U.S. at 468. 3 Here, Plaintiffs allege that the eight Defendants engaged in a wide ranging 4 ||conspiracy ranging from 2011 to the present to fix prices at supracompetitive levels. See 5 || generally Opposition. According to Plaintiffs, Defendants orchestrated a multi-faceted 6 ||conspiracy that operated as follows: Defendants agreed to reduce supply, by cutting 7 || production and imports and increasing exports, in order to raise prices. See id. at 26-36. 8 || Pursuant to Plaintiffs’ theory of conspiracy, Defendants also engaged in deceptive acts— 9 || issued false statements about refinery maintenance and manipulated gas trades—to create 10 ||a public perception of demand and further drive supracompetitive pricing in California. 11 id. at 45-49. Defendants effected this conspiracy through frequent exchanges of 12 |isupply-related information concerning refinery maintenance, production, imports, and 13 exports. See id. 9-16. Defendants also cooperated to cover each other’s supply shortages 14 || by trading gas on the spot market and utilizing exchange agreements to trade barrels of gas 15 || with each other, instead of purchasing elsewhere at market rates. See id. at 9-16, □□□□□□ 16 ||37—45, 49-50. Through these arrangements, Defendants consistently collaborated rather 17 || than competed with each other in times of need, such as after the Exxon refinery explosion. 18 || See id. at 22-24, 49-52. 19 The Court concludes that Defendants would have a rational economic motive to 20 into the type of conspiracy alleged by Plaintiffs. Limiting supply and manipulating 21 public facing information are economically rational ways to increase demand and, thus, 22 || prices—even more so, because Defendants themselves would remain protected by a high 23 of collaboration (exchange agreements, coordinated spot-market trading, and 24 ||information sharing) that enabled them to anticipate market conditions, meet their own 25 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || supply needs, and avoid purchases at the high prices they created. In sum, Plaintiffs’ theory 2 ||that Defendants kept supply low and drove prices high, while implementing protections 3 || that kept their own costs and supply risks low, makes economic sense. The Court cannot, 4 || therefore, conclude that Plaintiffs’ conspiracy theory is economically implausible such that 5 should require Plaintiffs to “come forward with more persuasive evidence to support 6 claim than would otherwise be necessary.” Matsushita, 475 U.S. at 587. 7 While Defendants would certainly have an economic motive to act in the manner 8 |lalleged by Plaintiffs, that alone cannot establish an antitrust violation. Antitrust 9 || wrongdoing consists of concerted action pursuant to an illegal agreement, not independent, 10 || profit maximizing actions based on market conditions. See Citric Acid, 191 F.3d at 1105— 11 ||06. Thus, the Court turns to whether the evidence supports the inference that Defendants 12 pursuant to an agreement. Under Matsushita, unless Plaintiffs’ evidence tends to 13 ||exclude the possibility of independent action, it cannot raise a reasonable inference of 14 ||conspiracy. 475 U.S. at 588. 15 ||B. Plaintiffs Have Not Submitted Direct Evidence of a Price-Fixing Conspiracy 16 While both direct and circumstantial evidence can serve to create a triable issue on 17 ||conspiracy, it appears that Plaintiffs have only submitted circumstantial evidence in their 18 ||opposition. Direct evidence “is explicit and requires no inferences to establish the 19 || proposition or conclusion being asserted,” while circumstantial evidence requires one or 20 ||more inferential steps to reach a conclusion of conspiracy. Citric Acid, 191 F.3d at 1094 21 (quoting Jn re Baby Food Antitrust Litig., 166 F.3d 112, 118 (3d Cir.1999); Toscano v. 22 || Pro. Golfers Ass’n, 258 F.3d 978, 983 (9th Cir. 2001). For instance, conversations among 23 Defendants explicitly confirming their agreement would constitute direct evidence, while 24 |lambiguous conversations among Defendants that require an inference to conclude 25 26 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |}agreement would be circumstantial evidence. Compare Markson v. CRST Int'l, Inc., 2022 2 || WL 790960, at *13 (C.D. Cal. Feb. 24, 2022) (“conversations between Defendants 3 ||confirming their agreements not to hire truckers” was direct evidence), with In re Dynamic 4 || Random Access Memory Antitrust Litig., 2007 WL 9752971, at *6—-8 (N.D. Cal. Feb. 20, 5 ||2007) (emails referencing “secret meetings” and comments regarding productions cuts 6 ||required inferences to conclude agreement and thus was not direct evidence). Here, 7 || Plaintiffs do not purport to submit evidence of conversations, emails, or other documents 8 || that would directly establish that Defendants entered into an agreement with one another.’ 9 || Instead, their briefing focuses on circumstantial evidence of parallel conduct and plus 10 || factors to establish a genuine dispute as to conspiracy. See Opposition at 8—9; Toscano, 11 1/258 F.3d at 985. As Plaintiffs have submitted no direct evidence, the Court will turn to 12 ||whether the circumstantial evidence submitted by Plaintiffs is sufficient to raise an 13 || inference of conspiracy. 14 ||C. Plaintiffs Have Raised a Genuine Dispute of Material Fact as to Conscious 15 Parallelism 16 In considering the circumstantial evidence submitted by Plaintiffs, the Court first 17 examines whether Plaintiffs have raised a triable issue of fact that Defendants engaged in 18 conscious parallelism, before turning to an analysis of “plus factors.” Defendants argue 19 ||that there is no genuine dispute of material fact as to conscious parallelism because 20 || Plaintiffs have failed to submit evidence of parallel pricing or other parallel conduct. See 21 22 23 ” The only mention Plaintiffs make of the concept of direct evidence is that “[e]ven if Plaintiffs’ 24 evidence is not considered direct evidence of the conspiracy, it nevertheless tends to exclude the 25 possibility” of independent conduct. Opposition at 9 (citation omitted). 27 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 719 (“Joint Reply”) at 7-8. As discussed above, while parallelism is not alone 2 ||sufficient to show conspiracy, it is a relevant factor in addition to plus factors. 3 Parallelism exists when “competitors adopt[] similar policies around the same time 4 response to similar market conditions.” Musical Instruments, 798 F.3d at 1193. 5 || Plaintiffs can point to parallel prices to demonstrate conscious parallelism. Brooke Grp., 6 U.S. at 227 (“[C]onscious parallelism, describes the process, not in itself unlawful, by 7 || which firms in a concentrated market might in effect share monopoly power, setting their 8 || prices at a profit-maximizing, supracompetitive level.”). Plaintiffs can also point to similar 9 || business behaviors to demonstrate conscious parallelism. Musical Instruments, 798 □□□□ 10 1193 (defining parallel conduct as the adoption of “similar policies”); Zoslaw v. MCA 11 || Distrib. Corp., 693 F.2d 870, 884 (9th Cir. 1982) (considering whether defendants’ 12 ||“account classifications, pricing structures and promotional policies” were sufficiently 13 similar to demonstrate parallel conduct). For instance, in Petruzzi’s IGA Supermarkets, 14 || Inc. v. Darling-Delaware Co., the Third Circuit found that, although “defendants did not 15 the same prices,” they “acted similarly by refraining from competing” on certain 16 || accounts and retaliating against competitors that did compete on accounts. 998 F.2d 1224, 17 || 1243 (3d Cir. 1993). 18 Plaintiffs here point to a mix of similar pricing and other parallel business conduct 19 demonstrate conscious parallelism. With respect to pricing, Plaintiffs point to a 20 ||combination of evidence obtained in discovery and from publicly available documents 21 suggesting that, (1) in 2015 and 2016, Shell based its “at the rack” prices in part on the 22 prices of Exxon, BP, and Chevron; (2) in 2016, Phillips 66 based its Dealer Tankwagon 23 prices in part on a brand average of the prices of Chevron, Shell, Tesoro, and non- 24 || Defendant Mobil; and (3) from January 2015 to May 2017, the Dealer Tankwagon prices 25 28 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||of Chevron, Shell, and Valero were within approximately twenty cents of one another in 2 ||Richmond, California. See Dkt. 781-2 (“Surreply”) at 2, 4-5; Pltfs. Ex. 211 at 3 ||PSXPGI00089880; Pltfs. Ex. 212 at slide 25; Ex. Shell 1 at SOPUS_PGI_00002699. In 4 || addition, some of the evidence submitted by Defendants allows for an inference of follow- 5 ||the-leader pricing, one common form conscious parallelism. See, e.g., Musical 6 || Instruments, 798 F.3d at 1195. Five of the eight Defendants admitted that they regularly 7 ||monitored one another’s prices through services such as OPIS and factored that 8 ||information into their own pricing. See, e.g., J. Hodgson Declaration 11-15, □□□□□□ P. 9 || Brooks Declaration § 96; K. Archambault Declaration ¥ 59; J. Harris Declaration 6; M. 10 ||O’Neal Declaration 3. 11 In addition to the above evidence of parallel pricing, the evidence in the record also 12 ||suggests that Defendants engaged in other parallel actions. Defendants had common 13 reactions to market events, including selling gas to Exxon following its 2015 explosion, 14 ||increasing exports of gas out of California over the class period, and limiting gas 15 ||inventories at their respective refineries. See Pltfs. Ex. 200; C. Yates Declaration □□ 35— 16 ||36; N. Weinberg-Lynn Declaration 15-16; S. Roveda Declaration § 13; R. Sharum 17 || Declaration 9] 30-33; C. Dickson Declaration JJ 11—12; M. Perez Declaration □□ □□□□□□ 18 Lockhart Declaration 430; P. Brooks Declaration 38-40, 90; T.A., E. Pestano 19 || Declaration J 42. 20 The Court finds that the foregoing evidence sufficiently raises a genuine dispute of 21 ||material fact that Defendants engaged in conscious parallelism. Both conscious 22 || parallelism—where players in a concentrated market independently mirror one another’s 23 prices or take similar profit maximizing actions—and illegal conspiracy to fix prices can 24 || result in high prices, but only the latter violates antitrust law. Because conduct as consistent 25 29 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 legal conscious parallelism as with illegal conspiracy is insufficient to support a 2 ||reasonable inference of conspiracy, Matsushita, 475 U.S. at 587-88, the Court turns to 3 || Plaintiffs’ ten categories of plus-factor evidence to determine if any evidence “tends to 4 |; exclude the possibility of independent action.” Jd. at 588. 5 Plaintiffs’ Plus Factors 6 After concluding that Plaintiffs have introduced circumstantial evidence of parallel 7 ||conduct among the Defendants, the Court turns to an examination of the “plus factors” that 8 || Plaintiffs contend demonstrate Defendants’ illegal price fixing conspiracy. In all, Plaintiffs 9 || argue that ten categories of Defendants’ behavior evidence their wide-ranging, price fixing 10 ||conspiracy: (1) refineries cooperated with one another through exchange agreements to 11 cover each other’s supply shortages against self-interest; (2) traders frequently exchanged 12 ||confidential supply-related information against Defendants’ self-interest; (3) refineries 13 ||restricted production levels and maintained low inventories to reduce overall gas supply; 14 ||(4) refineries prevented gas imports into California to reduce overall gas supply; 15 ||(5) refineries exported gas out of California to reduce overall gas supply; (6) refineries 16 || protected Exxon after its refinery explosion in 2015 by selling it gas rather than competing 17 ||for its market share; (7) refineries manipulated the market through a “gentleman’s 18 ||agreement” to limit trading hours; (8) traders manipulated the market by entering “wash 19 || trades” to create a false sense of market demand; (9) traders manipulated the market by 20 ||selectively reporting trades to OPIS to raise public facing gas prices; and (10) refineries 21 manipulated the market by making false public statements about refinery maintenance to 22 create a fabricated sense of market scarcity. 23 The Court will examine each category of allegedly conspiratorial conduct under the 24 || Ninth Circuit’s two-step framework for determining whether circumstantial evidence can 25 30 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |icreate a reasonable inference of conspiracy. Citric Acid, 191 F.3d at 1094. For each 2 ||category, where Defendants meet their Step One burden to offer plausible and justifiable 3 |lreasons for their conduct consistent with proper business practice, the Court will consider 4 whether Plaintiffs have pointed to any evidence at Step Two that tends to exclude the 5 || possibility of independent conduct. Jd. Finally, the Court will consider the totality of 6 Plaintiffs’ evidence across all ten categories to determine whether they have successfully 7 ||raised an inference of conspiracy. Id. at 1097, 1106. 8 1. Cooperation Through Exchange Agreements 9 Plaintiffs contend that Defendants widely used exchange agreements to further their 10 || price fixing conspiracy. See Opposition at 37-45. The record shows that Defendants, with 11 ||the exception of Alon, entered into multiple bilateral exchange agreements with one 12 || another over the past twenty years or more to exchange fuel on a barrel-for-barrel basis. 13 || Joint Statement § 22; Pltfs. Exs. 114-28.!° Plaintiffs explain that exchange agreements 14 || allowed for geography-based exchanges of fuel, where a refinery provides fuel to another 15 one location and receives those barrels back in different location. See Opposition at 38. 16 || Exchange agreements also allowed a refiner to provide barrels today to have them returned 17 |jat a later date. See id. Plaintiffs argue that Defendants used exchange agreements to 18 19 20 |] 21 10 For instance, Exxon executed exchange agreements with Chevron in 2005, Phillips 66 in 2007, 77 Tesoro in 2012, and Shell in 2013. Pltfs. Exs. 114-15, 118, 128. In addition, Chevron executed exchange agreements with Valero in 2006 and 2014, Tesoro in 2002 and 2015, and BP in 2013 (Pltfs. Exs. 116-17, 23 || 119-20, 124); Phillips 66 executed exchange agreements with Shell in 2011 and 2012, Valero in 2012, and BP in 2015 (Pltfs. Exs. 121-23, 125); Tesoro executed exchange agreements with Shell in 1999 and 24 || Valero in 2013 (Pltfs. Exs. 126-27). Many of these agreements were amended throughout the years. See 25 Pltfs. Exs. 114-28. 31 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 transfer large amounts of product to one another with little formality and that this evidences 2 ||}conspiracy because such behavior is inconsistent with competition. See id. at 39-40. 3 Defendants rebut these allegations by explaining that they independently entered 4 exchange agreements for self-interested business reasons—because they are 5 convenient, cost-saving, and allow for geographical competition. Defendants explain that 6 || these agreements enabled them to meet supply needs in specific geographical areas without 7 || physically transporting gas to locations where they did not have a refinery. See, e.g., Joint 8 || Statement J 22; C. Yates Declaration J 51.!! By enabling companies to receive gas in one 9 || location and return the gas in kind in another location, exchange agreements allowed 10 |/refineries to expand the geographic reach of their operations at lower costs or in areas 11 || where they otherwise would not be able to compete. See id Defendants also state that 12 used exchange agreements to quickly cover shortages and meet supply obligations, 13 || without having to buy barrels at market prices. See, e.g., K. Archambault Declaration 14 || 63, 66-70; C. Yates Declaration {§ 50—-52.'? They provide testimony that convenience- 15 || based exchange agreements helped them prevent supply shortages and disruptions without 16 |/incurring the costs of maintaining large inventories. See id. According to the terms of 17 ||Defendants’ exchange agreements, any imbalances remaining after the parties swapped 18 || barrels back and forth were usually settled monthly in cash. See, e.g., Pltfs. Exs. 114-28. 19 || By explaining that exchange agreements allowed them to save time and money transporting 20 || fuel, expand geographical reach, and cover supply shortages at lower cost and lower risk, 21 23 1! See also J. Harris Declaration §§ 21-22; R. Sharum Declaration § 20; P. Brooks Declaration 24 See also R. Sharum Declaration § 23; J. Harris Declaration §{ 21—24; P. Brooks Declaration 82-83, 86-88; T.A. 338-342, E. Pestano Dep. at 32:13-15, 38:17-19, 39:7—-14, 46:3-11. 25 32 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Defendants have offered plausible, justifiable, and self-interested business reasons to enter 2 exchange agreements. 3 Plaintiffs argue that these agreements are inherently against self-interest because a 4 || refiner has no incentive to loan to competitors in times of need instead of leveraging that 5 ||need to gouge them on prices.'? In support of this argument that exchange agreements 6 || were against self-interest, Plaintiffs highlight two instances of swaps performed at 7 || inequivalent values (e.g., Phillips 66 loaned barrels when the spot market price was $1.79, 8 Shell returned the barrels a few days later when the spot price was $1.72). See Pltfs. 9 || Exs. 147-50. While this evidence could support the conclusion that these two transactions 10 || in isolation were not profit maximizing for one of the parties, see Pltfs. Exs. 147—50,"4 the 11 value of any single, in-month transaction is not sufficient to raise an inference that 12 exchange agreements, which enable dozens of transactions between two parties over a year 13 ||or more, are not profitable for Defendants overall. See, e.g., Pltfs. Ex. 145. Plaintiffs’ 14 || argument would hold true only if exchange agreements went one way and benefited only 15 party. The central premise of these exchange agreements, however, is that they 16 17 || ———— 18 3 Plaintiffs point to an instance of a Shell employee explaining that “[t]he whole point of the 19 || convenience exchange is to help each other out volumetrically without adverse financial impact.” □□□□□□ Ex. 139. This statement, made in the context of a price negotiation to settle remaining balances, captures 20 || the mutually beneficial essence of exchange agreements. See id. 4 In Exhibit 147, Shell requested product from Phillips 66 under an exchange agreement and 21 Phillips 66 agreed to supply up to a certain amount and be paid back five days later. Plaintiffs highlight 77 that Shell received product on a day when gas prices were $1.79/gallon and ultimately returned product to Phillips 66 five days later when gas prices were $1.72/gallon. See Pltfs. Exs. 148-49. Plaintiffs ignore 23 || the fact that Defendants entered into an agreement not knowing what the price would be five days later. Exhibit 150 shows that Shell used an exchange agreement with Valero to cover a shortage and noted that 24 || the value of the swap was “29k.” See Pltfs. Ex. 150. 25 33 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 || facilitate reciprocal exchanges over extended periods of time: the party giving one day will 2 || be the receiving party the next day, when its time of need arises. The Court therefore finds 3 ||that Defendants have offered sufficiently plausible, legitimate, and self-interested business 4 ||reasons to enter into mutually beneficial, long-term exchange agreements to reduce their 5 and costs. Accordingly, Defendants meet their Step One burden. 6 While these types of agreements can be misused as part of an unlawful conspiracy, 7 || without more, this Court cannot conclude that exchange agreements, in and of themselves, 8 ||raise a reasonable inference of conspiracy. This Court is mindful that other courts have 9 ||emphasized the procompetitive features of exchange agreements. In Aguilar v. Atl. 10 || Richfield Co., a consumer brought a class action alleging that gas companies had conspired 11 restrict the output of CARBOB and pointed to exchange agreements as a plus factor. 25 12 4th 826 (2001).!° In concluding that these agreements did “not even imply collusive, 13 ||rather than independent, action,” the court stated that: “exchange agreements have long 14 recognized as procompetitive in purpose and effect, enabling or facilitating 15 ||companies to compete in product and/or geographical and/or temporal markets in which 16 otherwise could not or would not compete as efficiently or at all.” Jd. at 834; see also 17 || Blue Bell Co. v. Frontier Ref. Co., 213 F.2d 354, 359 (10th Cir. 1954); Thomas v. Amerada 18 || Hess Corp., 393 F. Supp. 58, 72 (M.D. Pa. 1975); Indep. Iron Works, Inc. v. U.S. Steel 19 || Corp., 322 F.2d 656, 666-67 (9th Cir. 1963) (business transactions between competitors, 20 || without more, do not allow for an inference of conspiracy). Absent evidence of misuse, 21 ||courts have uniformly rejected the argument that exchange agreements in the gas industry 22 234 ©) 24 'S The Court in Aguilar addressed the plaintiff's § 1 Cartwright Act claim, which it noted “is 5 analogous to section | of the Sherman Act.” 25 oe at 838. 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || are per se vehicles for coconspirators to exchange favors. See, e.g., Aguilar, 25 Cal. 4th at 2 ||863-64. The Court therefore turns to whether Plaintiffs have provided evidence of such 3 || misuse. 4 The additional evidence that Plaintiffs offer regarding exchange agreements at Step 5 does not tend to exclude the possibility of independent action. First, Plaintiffs offer 6 ||no evidence to substantiate their claim that “enormous” quantities of gas changed hands 7 || pursuant to these agreements. See Opposition at 39. The only evidence Plaintiffs submit 8 ||in support of this statement is a Phillips 66 document with three numbers on it but no 9 || indication of what the numbers signify. See Pltfs. Ex. 130. Moreover, Phillips 66 and 10 || Valero provide additional context explaining that their exchange volumes were less than 11 |}3% and 1% of their annual volumes, respectively. See R. Sharum Declaration 26; P. 12 || Brooks Declaration 82. 13 Second, Plaintiffs contend that the friendly and informal nature of exchange 14 |/transactions, as seen in the following, raise questions about their non-competitive and 15 |/collusive nature: Defendants (1) often amended agreements to accommodate different or 16 || additional product; (2) on eight occasions, settled exchange balances years after the original 17 ||exchanges; and (3) referred to performance under the agreements as “help” and “favors” 18 |j/or “borrowing” gas, which was “appreciated.” See Pltfs. Exs. 157-60 (referring to 19 || performance as “help” and “favors”; see also Pltfs. Exs. 161—64 (referring to performance 20 ||as “borrowing” gas).!° The Court agrees this evidence underscores the cooperative and 21 22) © 23 '6 See also Ex. 133 (2011: Valero and Exxon informally add sub-octane to agreement); Ex. 134 (2014: Chevron and Tesoro amend to extend time frame); Ex. 144 (2012: BP and Phillips 66 “liquidate 24 || balances from old contracts” from prior five years); Ex. 145 (2012: BP and Valero settle exchange 25 balances); Ex. 141 (2013: Shell and Exxon “liquidated all aged balances... both active and inactive” 35 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || interdependent nature of exchange agreements but does not find that it adds dimension that 2 ||supports an inference of conspiracy. Given that the purpose of exchange agreements is to 3 ||mutually benefit the parties by meeting each other’s supply needs as they arise, allowing 4 || flexible contract amendments between participants could be consistent with furthering that 5 |}common goal. Furthermore, the language of “help” and “favors” could simply be 6 consistent with collegial language used in the context of the cooperative partner-supplier 7 ||relationships created by these agreements. 8 Plaintiffs also point to evidence of eight instances where Defendants did not settle 9 imbalances in the thousands of barrels until years after the swaps were made as evidence 10 |/of collusion. In light of the evidence that Defendants commonly produced hundreds of 11 || millions to billions of barrels per year, these are de minimis amounts. See, e.g.,C. Dickson 12 || Declaration {{ 6, 21 (Exxon refinery capacity was over | billion gallons per year); R. 13 ||Sharum Declaration { 28 (Phillips 66 refinery typically produced over 3 million gallons 14 || per day); see also Plitfs. Exs. 136-37, 139-41, 143-46. As these actions could be consistent 15 || with Defendants’ self-interest in flexible administration of mutually beneficial exchange 16 ||agreements or delayed bookkeeping of de minimis amounts, they do not tend to exclude 17 || the possibility of independent action. 18 19 20 | 21 || from 2012 totaling approximately 18,000 gallons); Ex. 146 (2014: Exxon tells Tesoro it cannot deliver 79 product to settle exchange balance and so pays); Exs. 136-37 (2014: Phillips 66 and Chevron settle “inactive outstanding balances”); Ex. 142 (2015: Chevron and Valero amend to transfer “old 93 || product .. . to the active product”); Ex. 143 (2015: Phillips 66 and Exxon “clean up inactive balances” of approximately 25,000 barrels from prior three years); Ex. 135 (2015: Valero and Shell negotiate 24 || amendment); Exs. 139-40 (2017: Chevron and Shell settle balances totaling $154,949.51 from prior three years). 36 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 Because the behavior that Plaintiff points to is “as consistent with permissible 2 ||competition as with illegal conspiracy,” it does not support an inference of antitrust 3 ||conspiracy. Matsushita, 475 U.S. at 588. Based on the above, the Court cannot conclude 4 || that Plaintiffs’ evidence concerning exchange agreements raises a reasonable inference of 5 conspiracy. 6 2. Exchanges of Information Among Traders 7 Plaintiffs point to interfirm exchanges of information among Defendants’ traders as 8 ||the main driver of Defendants’ alleged conspiracy. See Opposition at 9-16. California 9 ||refineries employ traders to buy and sell gas products on the spot market to meet refinery 10 |isupply needs. Joint Statement 921; McCullough Report §22 (describing trader 11 || transactions as “like a farmers’ market where farmers buy and sell potatoes to each other”). 12 || These traders buy and sell with traders at other refineries and third-party trading firms on 13 || behalf of the refineries that employ them. Joint Statement J 21; Lipow Report □ 20, 31; 14 ||McCullough Report 722. For example, traders will buy or sell in response to their 15 refineries’ supply conditions and either buy to ensure the refinery has enough product to 16 its contractual obligations (such as in the case of an outage), or sell in the market to 17 |}ensure that any excess product does not slow down refinery production. See, e.g., Lipow 18 || Report Jf 20, 22, 26; K. Archambault Declaration 28-30; C. Yates Declaration □ 54. 19 || Neither party disputes that the California trading market is characterized by a handful of 20 |}companies, and thus, traders are repeat players that are familiar with one another and buy 21 ||and sell from each other on a regular basis. See Lipow Report 7 31; McCullough Report 22 23 24 25 37 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || 99 20, 66.'’ Traders, therefore, regularly communicate with each other at trade association 2 ||events, as well as by phone, email, and messaging platform in the course of performing 3 || their duties. See McCullough Report ¥ 50. 4 Although the parties agree that traders must communicate to execute transactions, 5 Plaintiffs contend that Defendants’ traders consistently and inappropriately shared 6 ||confidential information regarding refinery maintenance, production, and supply in 7 || furtherance of a conspiracy. See Opposition at 9-16. For instance, Plaintiffs take issue 8 || with the fact that traders exchanged information like the following: In one conversation on 9 || April 17, 2012, BP’s trader asked if Shell’s trader had “27kb of pnw premium,” explaining 10 he needed the product because BP’s refinery was running a unit “at min rates until 11 may in order to build ls vgo inventory back to safety stock level.” Pltfs. Ex. 43. 12 || According to Plaintiffs, rather than just simply asking for the amount of gas needed, this 13 ||trader exchanged gratuitous and confidential supply information about BP’s refinery 14 || against self-interest. Dkt. 809 at 42-44. Plaintiffs point to various trader exchanges like 15 ||the above that occurred at trade association events and during trading communications as 16 || evidence of conspiracy. See, e.g., Pltfs. Exs. 6, 8-12, 19-20, 35-44, 46-50, 52, 192-93. 17 In order to meet their Step One burden of producing plausible and justifiable reasons 18 || for their actions, Defendants offer evidence that traders exchanged information, while 19 || buying and selling gas products to each other, as customers and suppliers. Defendants 20 || explain that although the refineries’ overall business model was premised on competition, 21 traders had very different roles: they acted as customers and suppliers that needed to 22 23 © | 24 17 See also C. Yates Declaration § 56; R. Pluimer Declaration § 6; M. Perez Declaration 10; L. 15 Lockhart Declaration 4, 36-37 38 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || cooperate because they conducted repeat business with one another. See, e.g., R. Pluimer 2 || Declaration § 6; M. Perez Declaration { 10.'® Defendants assert that, in this context, traders 3 ||shared information for strategic advantage—to build rapport and actively foster additional 4 ||trading opportunities. See, e.g., H. Henderlite Declaration § 16; R. Pluimer Declaration 5 1/99 5-7.'° Defendants also note that traders were communicating already public 6 information about refinery maintenance and import and export schedules to explain their 7 ||needs for buying or selling, rather than divulging confidential information. See, e.g., P. 8 || Brooks Declaration {§ 32, 36, 75; J. Yomtoob Declaration {J 15, 21 & n.4. Defendants 9 |; also submit that traders attended trade association events to stay informed on the industry 10 explore potential business opportunities rather than for conspiratorial purposes. See 11 ||K. Archambault Declaration J] 72, 74; J. Yomtoob Declaration 430.2? For example, 12 ||traders used these opportunities to discuss market conditions and develop business 13 ||relationships with other traders. See id. 14 Based on the above, the Court is satisfied that Defendants produced plausible and 15 justifiable business reasons for traders to share information with one another. Defendants 16 || provide evidence that traders needed to buy and sell gas from each other to meet their 17 refineries time-sensitive supply needs, and that they did so in a concentrated market with 18 || few players, meaning that the same traders conducted repeat transactions with each other. 19 || In this context, a reasonable juror could infer that traders shared information about their 20 21 29 18 See also P. Brooks Declaration 72; T.A., E. Pestano Declaration J 48, 50—51. '9 See also J. Yomtoob Declaration § 13-15, 21, 24; C. Yates Declaration 956; R. Sharum 23 || Declaration J 19; L. Lockhart Declaration {J 4, 29, 36-37, 39-45; J.A. 587-93, Phillips Exs. □□□□□□ 2° See also H. Henderlite Declaration J 19; C. Yates Declaration J 57; R. Pluimer Declaration □ 13; 24 || L. Lockhart Declaration §] 49-50; P. Brooks Declaration §{ 103, 105; C. Dickson Declaration § 71; M. 45 Perez Declaration § 17. 39 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 respective refineries for self-interested reasons—in order to facilitate transactions, cultivate 2 |/relationships, and glean information for future trading opportunities. Armed with 3 knowledge of another trader’s supply needs, that trader is arguably better positioned to sell 4 |/to the other. In the same vein, disclosing one’s forward looking supply needs arguably 5 || better positions a trader to identify potential sources of product coverage. The Court also 6 || agrees that incidental sharing of already public information to explain the need to buy or a 7 without more, is consistent with legitimate business conduct. Overall, Defendants’ 8 || evidence of the context and purpose of traders’ exchanges is consistent with what the Citric 9 || Acid court described as the legitimate practice of “[g]athering information about pricing 10 ||and competition in the industry.” 191 F.3d at 1098 (gathering information about other 11 |}producers did not allow for inference of conspiracy).”! Therefore, Defendants’ 12 ||explanations meet their burden at Step One. 13 At Step Two, Plaintiffs submit dozens of communications among traders to attempt 14 ||to demonstrate that Defendants’ traders regularly exchanged confidential information, and 15 ||that such information was “widely dispersed” and reached the “highest echelons of 16 ||management.” See Opposition at 10-16. The Court has reviewed the communications 17 submitted by Plaintiffs and finds that they generally fall into three categories: (1) traders 18 two different companies exchanged refinery information in the context of a 19 transaction, (2) traders within one company shared information they obtained from an 20 || ——_—_—_——__ 22 21 See also Musical Instruments, 798 F.3d at 1196 (“participation in trade-organization meetings 93 || where information is exchanged and strategies are advocated does not suggest an illegal agreement”); see also Pitfs Ex. 23 ((30(b)(6) witness for trade association testifying that traders discussing pricing at 24 informal meetings during a trade association event would not be problematic “if it’s a supplier and a 25 customer kind of a conversation’). 40 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || outside trader about another refinery, and (3) only one exchange where traders ultimately 2 || passed information up the chain-of-command as Plaintiffs allege.** The Court summarizes 3 ||these categories of evidence below before considering whether Plaintiffs meet their Step 4 || Two burden in light of these communications as a whole. 5 In the first category, Plaintiffs highlight communications between traders discussing 6 ||refinery maintenance, imports, and production that explicitly occurred in the context of 7 || executing or seeking to execute a transaction. For instance, on February 23, 2015, a Shell 8 ||trader asked whether Chevron could supply it in light of Shell’s “ongoing structural 9 ||demand.” See Pltfs. Ex. 41. Similarly, on December 2, 2015, BP’s trader told Shell’s 10 trader that he had “a fairly steady stream of barges coming in thru the month to both gatx 11 shell carson,” apparently in an effort to see if Shell had an interest in purchasing. Pltfs 12 11 at row 194801; see also Plitfs. Exs. 6, 11, 19-20, 40, 43-44, 52. In all of the 13 || foregoing, a trader from one company received information from a trader at another 14 || company regarding refinery maintenance, trading, or production in the context of securing 15 potential deal with that trader. 16 In the second category, Plaintiffs submit evidence of information exchanges between 17 || traders at different refineries that do not immediately appear to have occurred in the context 18 || of potential business transactions. The majority of these documents show traders internally 19 ||sharing information that they obtained from a trader at a different refinery. While it is 20 |/ unclear whether the information was originally obtained in the context of a sale, it appears 21 traders circulated this outside information internally to other traders, presumably to 22 24 22 The Court notes that Plaintiffs also submit communications in which traders speculate regarding 25 market conditions or third parties as discussed in detail at infra Section V.D.3. 41 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || facilitate their own work of buying and selling (i.e., identifying sources of supply or 2 ||potential buyers). For example, in one internal conversation between Tesoro traders on 3 ||March 17, 2017, a trader noted that he was “running out of options on who to buy from,” 4 the traders discussed that they could not buy from Valero because it was still 5 || undergoing maintenance and “traders indicat[ed] [Valero was] still struggling.” See Pltfs. 6 || Ex. 39; see also Pltfs. Exs. 10, 47, 192—93 (internally discussing the severity of other 7 ||refineries’ maintenance events). 8 The remaining conversations in the second category that Plaintiffs point to involve 9 || two traders from BP and Phillips 66; unlike the other trader communications submitted by 10 || Plaintiffs, these traders appear to also have exchanged potentially confidential export, 11 ||import, and supply information, in addition to refinery maintenance information. For 12 |/instance, on January 23, 2018, BP’s trader wrote an internal market update, noting that 13 ||“P66 also has a reformer TAR in Feb/March (pnc) that is unknown to the market.” Pltfs. 14 ||Ex. 48 at BPWC-PG-00039851; see also Plitfs. Exs. 8, 49-50 (discussing potentially 15 ||confidential information regarding maintenance, exports, and imports). The direct 16 || exchanges between BP and Phillips 66 may suggest something more nefarious, given that 17 ||the information shared was not clearly public. Where that information is then circulated 18 ||internally, however, it appears to be circulated solely to other traders, presumably for the 19 || purpose of aiding buying and selling. See, e.g., Pltfs. Ex. 48. 20 In the third and final category, Plaintiffs point to a single communication that 21 demonstrates that the information exchanged between traders was passed up the chain-of- 22 ||command to individuals responsible for production and pricing at Defendants’ refineries. 23 Opposition at 16. In an email dated March 7, 2015, Tesoro’s trader responded to an 24 |larticle that was sent to a large listserv regarding Exxon’s maintenance following an 42 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 explosion at Exxon’s refinery in February 2015. See Pltfs. Ex. 35. Tesoro’s trader wrote: 2 || “[g]lood news—this report is erroneous.” Jd. The email does not clearly indicate the source 3 || of his knowledge.”’ Plaintiffs also submit evidence showing that the recipients of this email 4 || included high-level managers at Tesoro. See Pltfs. Exs. 36-38. Plaintiffs argue that, based 5 this exchange, a factfinder could reasonably infer that other information exchanges 6 || among traders were similarly passed up the chain-of-command. 7 Plaintiffs argue that these communications between traders prove that Defendants 8 || shared confidential information about their refinery operations and import/export decisions 9 ||against self-interest and in furtherance of a price fixing conspiracy. Turning to the 10 inferences that this evidence permits, the Court finds the information exchanges in the 11 |}record would not allow a reasonable juror to infer the wide ranging, eight-Defendant 12 ||conspiracy Plaintiffs seek to prove. The case law is replete with discussions on whether 13 exchanges of information are a plus factor tending to support conspiracy, and although no 14 || bright-line rules or tests emerges, the Court finds the following factors are relevant to the 15 || facts before it: (1) who is communicating and how frequently, see, e.g., Baby Food, 166 16 || F.3d at 121-22; (2) the proximity of the communications to pricing decisions, see, e.g., In 17 || re Flat Glass Antitrust Litig., 385 F.3d 350, 368-69 (3d Cir. 2004); and (3) the context and 18 || content of the communications, see e.g., Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 19 || 1348, 1357 (9th Cir. 1982); In re Dairy Farmers of Am., Inc., Cheese Antitrust Litig., 60 20 ||F. Supp. 3d 914, 951 (N.D. Ill. 2014), aff'd 801 F.3d 758 (7th Cir. 2015). 21 22 23 *3 In their opposition, Plaintiffs claim that Tesoro also wrote that the information was “confirmed 24 || via several sources including the USWC XOM crude trader,” but that language is not reflected in Exhibit 3 || 35 and thus, is misquoted. 43 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 The Court first addresses who is exchanging information and how often those 2 |}exchanges occurred. Exchanges of information among high-level executives who have 3 pricing authority bolster an inference of conspiracy, although “there must [also] be 4 ||evidence that the exchanges of information [actually] had an impact on pricing.” 5 || Stanislaus Food Prod. Co. v. USS-POSCO Indus., 2013 WL 595122, at *12 (E.D. Cal. Feb. 6 2013), aff'd, 803 F.3d 1084 (9th Cir. 2015) (quoting Baby Food, 166 F.3d at 125); In 7 \|\re Publ’n Paper Antitrust Litig., 690 F.3d 51, 65 (2d Cir. 2012) (holding circumstantial 8 || evidence supported conspiracy where presidents of two companies with pricing authority 9 || shared intentions to increase prices before those decisions had been publicly announced). 10 || On the other hand, exchanges of information among low-level employees without pricing 11 |/authority are generally not probative of conspiracy. Baby Food, 166 F.3d at 121-22. 12 || Nevertheless, exchanges of information between low-level employees can be probative of 13 || conspiracy where there is evidence that those employees routinely reported information up 14 || the chain-of-command. Jn re Static Random Access Memory (SRAM) Antitrust Litig., 2010 15 || WL 5138859, at *6 (N.D. Cal. Dec. 10, 2010). Distinguishing Baby Food, the court in 16 SRAM found that where exchanges between low-level employees were regularly reported 17 individuals with pricing authority, such conduct was more consistent with conspiracy 18 with unilateral conduct. Jd. at *7. 19 With these factors in mind, the Court turns to the trader conversations in the record. 20 || The volume of evidence that Plaintiffs submit suggests relatively frequent communications 21 || between Defendants’ traders. See, e.g., Pitfs. Exs. 8, 10-11, 19-20, 35, 39, 41-44, 46-47, 22 23 24 25 44 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 64-65, 82, 169.24 However, frequency is not particularly probative of conspiracy in the 2 ||context of gas traders in California. Because these traders must communicate with one 3 || another to do their jobs and because there are a limited number of traders in the California 4 ||market, one would expect to see frequent communications among this small group. 5 || Moreover, the bulk of the communications took place between traders, low-level employees 6 || that did not have the authority to set rack prices or production levels. See In re Citric Acid Litig., 7 || 191 F.3d at 1094. With regard to six of the Defendants—Chevron, Shell, Tesoro, Valero, 8 Exxon, and Alon—Plaintiffs can only point to one instance*> where information gained 9 || through trading was sent to higher-level employees and this evidence is ambiguous at best. 10 || See Pltfs. Ex. 35. In this instance, a Tesoro trader “replied all” to an article originally 11 circulated to a large listerv, stating, “this report is erroneous.” See id. Plaintiffs submit 12 || evidence to show that the recipients of this “reply all” included higher-up decisionmakers, 13 || although such decisionmakers appear to be included in the “reply all” because they were 14 recipients of the original email circulating the article. See id.*° 15 Plaintiffs’ evidence regarding communications between BP and Phillips 66 present 16 different picture. The traders of these two companies appear to have repeatedly 17 18 19 24 Some of the communications Plaintiffs submit are with unidentified third parties that may be non-Defendants, which suggest little about an agreement between Defendants in this case. See, e.g., Pltfs. 20 || Ex. 9 (Valero trader and “dan_rnr”); Pitfs. Ex. 65 (Shell trader and “toddktk@YAHOO”). 25 Although the Court is not obligated to mine the record for evidence Plaintiffs do not point to in 21 |! their briefing, the Court has identified an additional instance where information may have been passed up 27 the chain-of-command. See Pltfs. Ex. 65 (Valero trader to Shell trader: “go tell your supply group that gas in the bay is getting tight”; no further context or reply). This single message without a reply does not 23 || indicate whether information actually was reported up the chain-of-command. See id. 26 The Court also notes that Plaintiffs’ Exhibit 35 is the only piece of evidence that Plaintiffs have 24 || supported by submitting additional evidence showing that the recipients of the email held particular job roles. See Pltfs. Exs. 36-38. 45 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||}communicated potentially confidential information to each other and then passed that 2 ||information to production decision-makers. See, e.g., Pltfs. Ex. 8 (discussing imports, 3 || future projections, and production decreases); Pltfs. Ex. 48. For example, on December 4 || 18, 2017, BP’s trader asked, “you guys seein run cut incentive yet in LA,” and Phillips 66’s 5 ||trader responded, “yes indeed. Bay and LA.” Pltfs. Ex. 8 at rows 5832-33. On the same 6 || day, BP’s trader wrote an internal marketing update to other BP traders, stating in part that 7 does confirm to us that they are trimming runs.” Pltfs. Ex. 48 at BPWC-PG- 8 ||00039857. Plaintiffs also emphasize that BP’s trader testified at his deposition that he 9 || considered “run cuts” to be private information at BP. Pltfs. Ex. 74 at 228:9-229:19. These 10 ||documents reflect that Phillips 66’s trader disclosed the company’s internal, and perhaps 11 ||confidential, decision to decrease production levels (referred to as cutting or trimming 12 ||“‘runs”) with BP’s trader. This evidence of confidential exchanges is coupled with 13 || declarations from BP’s and Phillips 66’s traders admitting that, at times, they shared such 14 |/information with their respective production departments for the purpose of taking 15 || advantage of predicted market shortages.”’ 16 Based on the above, the evidence does not suggest the eight-Defendant conspiracy 17 Plaintiffs urge. Given that frequency alone is not particularly probative of conspiracy 18 this context, as described above, the Court focuses on whether Plaintiffs have pointed to 19 ||evidence to support their argument that traders “widely dispersed” information gleaned 20 || during trading to the “highest echelons of management.” Opposition at 16. Plaintiffs have 21 23 27 See J. Yomtoob Declaration 25 (information “may sometimes be transmitted to BP’s supply and refinery planning teams to determine whether there is an opportunity to supply counterparties”); L. 24 || Lockhart Declaration § 47 (‘on occasion, I discussed with our California refineries whether they could 25 increase production of CARBOB” based on trader (emphasis omitted). 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || pointed to no evidence that Chevron, Shell, Valero, or Alon passed trading information up 2 chain-of-command. Plaintiffs have pointed to one ambiguous instance involving 3 || Tesoro and Exxon where this may have occurred. See Pltfs. Ex. 35. No reasonable juror 4 |icould conclude based on this scant and ambiguous evidence that traders for each of the 5 |leight Defendants regularly passed information up the chain-of-command. Even 6 ||considering BP’s and Phillips 66’s admissions that they occasionally shared trading 7 ||information with their refineries’ supply teams (evidence that Plaintiffs do not point to but 8 the Court has read and considered), this evidence does not implicate any of the six 9 ||remaining Defendants such that a reasonable juror could infer an eight-Defendant 10 || conspiracy. 11 Next, the Court considers the proximity of the information exchanges to pricing 12 || decisions or other acts in furtherance of the alleged conspiracy. Courts have consistently 13 ||found that information exchanges are sufficient circumstantial evidence of conspiracy 14 || where the exchanges are closely followed in time by price increases. See, e.g., Flat Glass, 15 ||385 F.3d at 368-69 (holding that evidence of parallel price increases shortly following 16 information exchanges took the exchanges “outside the realm of ‘mere possession’” and 17 || allowed for an inference of conspiracy); Jn re Blood Reagents Antitrust Litig., 266 F. Supp. 18 ||3d 750, 778 (E.D. Pa. 2017) (holding that “the close temporal link between the transfer [of 19 || price information] and announcement of the 2001 price increases raise an inference of 20 ||conspiracy”); In re Platinum & Palladium Antitrust Litig., 2017 WL 1169626, at *13 21 }(S.D.N.Y. Mar. 28, 2017) (information exchanges shortly followed by price drops 22 23 24 2 47 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || supported inference of conspiracy).”® Here, Plaintiffs do not point to any evidence of 2 ||specific price increases, supply reductions, or other concerted activity in proximity to 3 || Defendants’ exchanges of information. Plaintiffs, therefore, have not created an inference 4 conspiracy by showing the proximity of information exchanges to specific collusive 5 || actions in furtherance of the conspiracy. 6 Lastly, the Court examines the context in which the communications occurred, and 7 || the nature of the information exchanged. Context is particularly important given that “the 8 || mere exchange of price information, without more, is not per se illegal,” Krehl, 664 F.2d 9 1357, and information exchanges between competitors “can in certain circumstances 10 ||increase economic efficiency and render markets more, rather than less, competitive.” 11 || United States v. U.S. Gypsum Co., 438 U.S. 422, 441 n.16 (1978). Indeed, where 12 ||defendants are competitors in a market but also customers and suppliers, the range of 13 || permissible inferences to be drawn from information exchanges must be determined in part 14 || by the context in which the exchanges occur. See, e.g., Dairy Farmers, 60 F. Supp. 3d at 15 (“having repeated communications with a supplier, who also is a competitor in certain 16 ||markets, does not a conspirator make”); In re Polyurethane Foam Antitrust Litig., 152 F. 17 Supp. 3d 968, 984-85 (N.D. Ohio 2015) (finding certain exchanges that occurred in the 18 context of a vendor-customer relationship did not support an inference of conspiracy). 19 20 28 See also, e.g., Inre Domestic Drywall Antitrust Litig., 163 F.Supp.3d 175, 197 (E.D. Pa. 2016) 21 (“Opportunities to conspire may be probative of a conspiracy when meetings of Defendants are closely 2 followed in time by suspicious actions or records.”); Richard A. Posner, Jnformation and Antitrust: Reflections on the Gypsum and Engineers Decisions, 67 Geo. L. J. 1187, 1199 (1979) (“[I]f the effect of 23 information exchange were to raise the level [of] prices, one could infer that the motive was price fixing.”). 24 25 48 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 l Here, Defendants are competitors in the wholesale and retail gasoline markets in 2 || California, but their traders operate as customers and suppliers on the spot market where 3 buy and sell gasoline. See, e.g., M. Perez Declaration § 10; L. Lockhart Declaration 4 4, 36-37. The information exchanges in the first category of Plaintiffs’ evidence 5 || discussed above confirms this market reality. See Pltfs. Exs. 43-45, 78. Although many 6 || of the trader chats submitted by Plaintiffs appear excerpted, leaving the reader without the 7 context of the conversation, many of the conversations explicitly occur in the context of a 8 ||current or potential transaction. See, e.g., Pltfs. Ex. 43 (Shell and BP traders discussed 9 || product availability in context of potential transaction); Pltfs Ex. 44 (Tesoro internally 10 || discussed information about fire at BP and noted that “[BP] might be able to deliver us 11 || bbls”); Pltfs. Ex. 45 (Chevron discussed inventory when explaining an error in its delivery 12 ||to Phillips 66); Pltfs. Ex. 78 (Shell trader told other traders that he was talking to Phillips 13 || 66 about one of their imports and the possibility of selling them a blending component). 14 Regarding the nature of the communications, the Court considers whether the 15 |{information shared is the kind reasonably shared in the context of legitimate business 16 |Jinteractions. Citric Acid, 191 F.3d at 1094; Musical Instruments, 798 F.3d at 1194. Here, 17 || most of the information relates to the timing and nature of refinery maintenance, although 18 || there are also some discussions regarding imports, exports, and the state of the market. See 19 || Pltfs. Exs. 6-12, 35, 40-50. These are the types of information that are relevant to a trader’s 20 || need to buy or sell on the spot market. In fact, many of the communications submitted by 21 || Plaintiffs demonstrate that traders used the information they gained from traders at other 22 refineries for just that purpose—to help them locate buying and selling opportunities. See, 23 Pltfs. Ex. 19 (BP noted Exxon’s supply issues in context of potentially being able to 24 ||sell to Exxon); Pltfs. Ex 20 (Chevron noted Tesoro’s storage issues in context of potential 49 26 . 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 with Tesoro); Pltfs. Ex. 40 (Chevron internally discussed Exxon’s delayed 2 maintenance in context of timing its delivery to Exxon). 3 With respect to the six Defendants aside from BP and Phillips 66, the context and 4 || content of the trader communications in the record renders the exchanges as consistent with 5 || conspiracy (or less so) as with customers and suppliers exchanging useful information in 6 ||the context of present and potential business transactions. See Pltfs. Exs. 10-11, 19-20, 7 39, 41-44, 46-47, 65, 169. Plaintiffs emphasize that an inference of conspiracy is 8 || created by the fact that traders shared refinery information not strictly necessary to transact 9 || purchases. See Dkt. 809, 43:444:4. In this buyer-supplier context, however, the evidence 10 || supports the inference that traders had legitimate business reasons to share refinery-related 11 || information while trading. For example, a trader might share information that its refinery 12 || will be down for maintenance in order to purchase product or gain information about who 13 ||might be able to sell. Traders also have a self-interested reason to share their own 14 || information so that they will receive valuable information in return—information that will 15 them locate either supply or parties seeking to buy. While such extensive exchanges 16 ||of refinery maintenance and other supply information could have been exchanged for 17 || conspiratorial purposes, the evidence that Plaintiffs point to does not tend to rule out the 18 || possibility that Defendants shared this information for the self-interested motives set forth 19 || above. 20 As a whole, therefore, the exchanges of information in the record do not permit an 21 inference of conspiracy with respect to most Defendants. Defendants’ traders are low-level 22 ||employees that regularly exchanged information in the course of their job duties, but there 23 not sufficient evidence that traders reported information up the chain-of command. See 24 ||Plitfs. Exs. 35, 65; Opposition at 16. Moreover, these exchanges are not linked to other 25 50 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || questionable events, occurred in the context of plausibly legitimate customer-supplier 2 ||relationships, and did not necessarily consist of confidential information. In light of these 3 || factors and based on a thorough analysis of the evidence in the record, the Court finds that 4 ||Plaintiffs’ evidence of information exchanges is not sufficient to permit a finding of 5 || conspiracy with respect to Chevron, Shell, Valero, Exxon, Tesoro, and Alon. 6 The Court also concludes that the above evidence of information exchanges is 7 ||sufficient to permit an inference of conspiracy with respect to BP and Phillips 66. The 8 || evidence concerning BP’s and Phillips 66’s exchanges reflects that their traders both shared 9 || potentially confidential information and passed information up the chain-of-command to 10 || people who made production decisions. See, e.g., Pltfs. Exs. 8, 64, 75, 82-84; J. Yomtoob 11 || Declaration J 25; L. Lockhart Declaration J 47. BP’s and Phillips 66’s traders testified that 12 shared information up the chain-of-command for the self-interested reason of enabling 13 refineries to better compete in the market. See id. From this evidence, however, a 14 |/reasonable juror could infer that BP’s and Phillips 66’s traders shared information based 15 ||on the understanding that each would use the information shared outside of trading. See, 16 Pltfs. Exs. 8, 46, 48. Accordingly, the Court finds that the nature of the 17 communications between BP’s and Phillips 66’s traders, coupled with their admissions that 18 reported information up the chain-of-command, is more consistent with conspiracy 19 || than with independent action—or, at least, that a reasonable juror could conclude so. 20 3. Supply Restrictions: Running Refineries Below Capacity 21 Plaintiffs argue that Defendants colluded to keep gas supply low in California to 22 supracompetitive prices and create conditions that enabled price spikes. Plaintiffs 23 |/contend that Defendants restricted supply against self-interest in three main ways: by 24 2 51 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || limiting production of CARBOB, discouraging and rerouting imports, and exporting gas 2 || when it would have been more profitable to sell in-state. See Opposition at 26-37. 3 In support of this plus factor, Plaintiffs point to Defendants’ increased CARBOB 4 || production after the 2015 Exxon explosion as proof that Defendants could have produced 5 ||more CARBOB prior to that point.”? See Opposition at 26; Pltfs. Exs. 66-67. They do not, 6 || however, offer any proof regarding optimal CARBOB production levels nor whether any 7 ||Defendant’s decision to produce less than that amount was not profit maximizing, and 8 ||therefore, against self-interest. Instead, Plaintiffs point to trader communications which, 9 ||they claim, demonstrate that Defendants shared information for the purpose of 10 || cooperatively reducing supply. See Opposition at 26-34. 1] To meet their Step One burden, Defendants explain that each refiner independently 12 production levels to maximize its profit. Defendants explain that their refineries 13 || produce primarily CARBOB but also a variety of other products, such as jet fuel, diesel, 14 non-CARBOB gasoline. See, e.g., J. Harris Declaration 4 7.°° Through detailed 15 || planning processes, each Defendant decided how much of its refinery capacity to devote 16 ||to producing CARBOB versus other products to maximize profit levels. See, e.g., K. 17 || Archambault Declaration J§ 8, 10, 15-21, 27; N. Weinberg-Lynn Declaration □□□□□□□□ 18 || These decisions factored in considerations such as the relative demand levels for CARBOB 19 compared to their other products and the relative costs of producing each type of product. 20 21 79 29 Plaintiffs also point to an email by a Chevron employee stating that he expected production levels at Exxon’s refinery to increase after the refiner was sold to a third party. See Pltfs. Ex. 69. 23 30 See also K. Archambault Declaration J 15; N. Weinberg-Lynn Declaration {J 7, 10; M. Bodziak Declaration J 7; R. Sharum Declaration 4 5; P. Brooks Declaration {| 13-14; C. Dickson Declaration § 16. 24 3! See also M. Bodziak Declaration {J 8-10; R. Sharum Declaration 4 5; J. Harris Declaration 25 7-13; P. Brooks Declaration §{{ 13-23; C. oe Declaration Jf 14-21. 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 || See, e.g., K. Archambault Declaration Jf 8, 10, 15—21, 27; N. Weinberg-Lynn Declaration 2 || 49 10-14.°2 When prices for CARBOB rose, such as following the Exxon explosion, 3 ||Defendants produced more CARBOB relative to other products because it was profitable 4 ||to do so. See K. Archambault Declaration § 38; H. Henderlite Declaration 29-32.*° 5 Defendants further explain that their inventory decisions needed to factor in the 6 financial costs and logistical constraints of maintaining inventories. From a financial 7 ||standpoint, Defendants explain that they had little incentive to hold inventory in storage 8 || because it was costly and gas inventories had limited life spans and declining values. See, 9 J. Harris Declaration 17-19; C. Yates Declaration 435; N. Weinberg-Lynn 10 || Declaration {| 15-16. From a logistical standpoint, Defendants explain that refineries 11 stored a variety of raw materials and finished products, each of which required its own 12 ||storage tank. The fact that refineries only had a finite number of these storage tanks 13 ||necessarily limited how many tanks could be dedicated to CARBOB. See, e.g., N. 14 || Weinberg-Lynn Declaration {ff 15-16; P. Brooks Declaration {§ 38-40; C. Dickson 15 |}Declaration J§ 11-12. In light of these financial and logistical constraints, certain 16 Defendants state that they preferred to cover unexpected shortages through exchange 17 ||agreements or purchases on the spot market, rather than building up inventories. See J. 18 19 20 21 {| ——_——_—__——_ 32 See also M. Bodziak Declaration J 8-10; R. Sharum Declaration 4/5; J. Harris Declaration 23 || 7-13; P. Brooks Declaration § 13-23; C. Dickson Declaration 9] 14-21. 33 See also S. Roveda Declaration J 11; N. Weinberg-Lynn Declaration §¥ 32-33, 35; M. Bodziak 24 || Declaration J 21; P. Brooks Declaration 22, 26; J.A. 733-38, Valero Exs. 1-2. 25 53 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |} Harris Declaration § 19; P. Brooks Declaration J 33; K. Archambault Declaration {J 45, 2 3 Based on the above, the Court finds that a reasonable juror could conclude 4 ||Defendants made CARBOB production decisions based on their own profit maximizing 5 ||calculus and logistical constraints rather than pursuant to a conspiracy to reduce supply. 6 || Especially because exchange agreements and spot market trades acted as insurance against 7 ||short-term shortages, Defendants’ decisions to produce profit maximizing amounts of 8 || CARBOB while maintaining low inventories to reduce costs could have been driven by 9 ||plausible and legitimate business objectives. The Court therefore concludes that 10 Defendants have met their Step One burden with regard to these allegations. 11 At Step Two of its analysis, the Court examines whether Plaintiffs offer any evidence 12 tends to exclude the possibility that Defendants acted independently and in their own 13 ||self-interest in setting CARBOB production levels. Plaintiffs’ raw assertion that 14 || Defendants could have and, therefore, should have produced more CARBOB is not a 15 sufficient basis for the Court to conclude that Defendants acted against self-interest. 16 || Antitrust law does not compel Defendants to produce the maximum amount of CARBOB 17 || possible; it only requires that Defendants’ production decisions be made independently for 18 || legitimate business reasons. At the least, information about the comparative costs and 19 || profitability of producing more CARBOB versus other products would be necessary to 20 ||evaluate whether foregoing additional CARBOB production was not in Defendants’ 21 || financial self-interest. Plaintiffs submit no proof that any Defendant’s production or 22 23 24 54 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 |/inventory decisions were not profit maximizing given demand, costs, and logistical 2 ||constraints.*4 See generally Opposition. 3 Instead of offering evidence about the economics of Defendants’ CARBOB supply 4 decisions, Plaintiffs instead point to communications between Defendants’ traders as 5 || circumstantial evidence that the companies colluded to depress supply and shared 6 ||confidential information to implement that scheme. Opposition at 27-37. Because 7 || Plaintiffs offer largely overlapping examples of trader communications as circumstantial 8 ||evidence regarding Defendants’ other purported efforts to restrict supply, the Court 9 || considers all of this evidence together below. 10 After reviewing the communications submitted by Plaintiffs as “plus factor” 11 |}evidence of an agreement to “strangle” supply, see id, the Court finds that the trader 12 ||}communications generally fall into two categories: (1) communications in which traders 13 different companies generally expressed a preference for low-supply/high-price 14 || conditions while speculating about how third-party actions might impact the market; and 15 ||(2) communications, which only occurred between BP and Phillips 66, constituting an 16 ||actual exchange of import, export, or production information between traders from 17 different companies. The Court examines each of these categories of communications in 18 || turn for their tendency to exclude the possibility that Defendants acted independently in 19 || making supply decisions. 20 The first category features emails between traders, speculating regarding 21 ||competitors’ actions and bemoaning actions that could bloat supply and lower prices. For 22 23 * Plaintiffs do not appear to argue that Defendants’ refineries sat idle or that Defendants forewent 24 || production opportunities. Rather, Plaintiffs appear to argue that, to the extent Defendants produced other 25 products, they should have produced CARBOB instead. See Opposition at16. 55 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||example, one BP trader and one Phillips 66 trader made various comments of this nature 2 ||to one another over the years, including that “[i]f the refineries don’t cut runs it could really 3 || get bad”; “[I] think we will structurally see more exports going forward”; “hopefully some 4 || of the current PMI exports will show up in the next week stats”; and, “[d]ec could be a S__ 5 storm if exports don’t clean us up.” See Pltfs. Ex. 8. One internal BP email among its 6 || traders noted “chatter” that “AOT” and Shell were importing CARBOB to the West Coast 7 stated that “everyone is becoming very cognizant that high prices will attract oil and 8 slowed down their buying as a result.” Pltfs. Ex. 48 at BPWC-PG-00039839; see also 9 || Pltfs. Ex. 8 at rows 852-53 (message between BP and Phillips 66 also acknowledging that 10 traders may slow down buying to discourage imports.) Another internal BP email among 11 traders noted that Valero was importing a cargo to LA and that “Noble” rerouted a cargo 12 || headed to the Pacific Northwest. See Pltfs. Ex. 50 at BPWC-PG-00023780; see also □□□□□□ 13 8 at rows 8329-9520; Pltfs. Ex. 83 (excerpted messages lamenting supply conditions 14 || without any context or evidence of a reply). 15 Some of these trader messages are written in unguarded and colorful language but, 16 || similarly, do no more than show competitors scrutinizing one other’s actions or expressing 17 displeasure at high supply conditions. In one set of emails, traders referred to market 18 conditions that attracted imports as the “bug light” being on, presumably referring to the 19 || fact that “bug lights” attract undesirable nuisances. Pltfs. Ex. 11 at row 134864; Pltfs. Ex. 20 ||48 at BPWC-PG-00039827; Pltfs. Exs. 79-82. In one of these conversations, BP and 21 ||Phillips 66 traders—apparently discussing what would happen if imports arrived—stated 22 || that “everyone will poop in our back yard, kill our market and leave us the dingle berries.” 23 || Pltfs. Ex. 8 at 592-95. In another email, an unidentified person asked Phillips 66’s trader 24 25 56 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 he had any alkylate needs, and Phillips 66’s trader responded, “no and don’t bring it the 2 || west coast.” Pltfs. Ex. 84. 3 The second category of communications, the ones which demonstrate an exchange 4 || of potentially confidential import/export information between traders, all occurred between 5 ||BP and Phillips 66 and are discussed above. See supra Section V.D.2. Because 6 ||}communications of this kind only occurred between these two traders at these two 7 ||refineries, they do not create an inference of conspiracy for all eight Defendants. They 8 ||may, however, create an inference of conspiracy as to BP and Phillips 66, which the Court 9 || discusses separately supra. 10 Together, these communications and internal documents paint a picture of a small 11 || group of competitors who go out of their way to obtain information about each other’s 12 |/actions to inform their own. See Krehl, 664 F.2d at 1357 (“the mere exchange of price 13 |/information, without more, is not per se illegal”). They also portray Defendants’ 14 ||hyperawareness of how competitors’ actions impact supply and price conditions for the 15 ||}whole market. The microcosm that these communications illustrate is consistent with 16 ||Plaintiffs’ characterization of the California gas market as highly concentrated and 17 ||interdependent. See McCullough Report 66; Defs. Ex. 8 at 44:15-22. Such 18 conscious parallelism in a market of this nature is not illegal, see supra Section V.C, and, 19 || without more, does not give rise to an inference of conspiracy. 20 The Court next considers whether the fact that traders expressed preferences for 21 ||lower-supply and higher-price conditions constitutes the “more” that tends to exclude the 22 || possibility that Defendants acted independently in making supply decisions. The Court 23 || finds that these trader discussions may establish that the eight Defendants, in general, had 24 motive to collude to maintain low-supply conditions. Motive alone, however, does not 25 57 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || permit an inference of agreement among the Defendants. Reserve Supply Corp. v. Owens- 2 || Corning Fiberglas Corp., 971 F.2d 37, 51 (7th Cir. 1992) (quoting 6 Phillip E. Areeda, 3 || Antitrust Law § 1411 (1986)); In re Late Fee & Over-Limit Fee Litig., 528 F. Supp. 2d 953, 4 (N.D. Cal. 2007), aff'd, 741 F.3d 1022 (9th Cir. 2014) (“[a]s one court put it, if ‘a 5 |;}motive to achieve higher prices’ were sufficient, every company in every industry could 6 || be accused of conspiracy”) (quoting Baby Food, 166 F.3d at 133). With the exception of 7 ||BP and Phillips 66, these communications do no more than illustrate that Defendants 8 || watched each other closely and desired lower supply conditions to generate higher profits. 9 With regard to the six Defendants not including BP and Phillips 66, the Court 10 ||concludes Plaintiffs’ proffered evidence does not tend to exclude the possibility of 11 ||independent decision making with regard to gasoline production and supply. To 12 |}summarize, Plaintiffs offer evidence that these six Defendants, (1) had the ability to 13 increase CARBOB supply but did not, (2) shared a desire to maintain lower-supply market 14 ||conditions, and (3) gathered information and closely monitored each other’s market 15 || behaviors. From this, a reasonable juror could infer conspiracy but could equally infer that 16 ||the six Defendants independently made profit maximizing production decisions while 17 || watching each other closely to inform those decisions. While it is illegal to act pursuant to 18 ||a conspiracy, it is not illegal to act pursuant to oligopolistic self-interest. Theatre 19 || Enterprises, 346 U.S. at 540-41 (“this Court has never held that proof of parallel business 20 ||behavior conclusively establishes agreement” without more). With regard to BP and 21 ||Phillips 66, the additional evidence that their traders shared confidential information and 22 passed that information to their production departments tends to exclude the 23 || possibility that these two refiners made independent decisions about gasoline production. 24 the remaining six refiners, however, the above evidence submitted by Plaintiffs does 25 58 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 tend to exclude the possibility of independent action and, thus, is insufficient to create 2 inference of conspiracy. 3 4. Supply Restrictions by Preventing Imports 4 Plaintiffs also contend that Defendants’ actions to prevent gas imports into 5 California is “plus factor” evidence of an eight-Defendant conspiracy to fix gas prices in 6 || California. See Opposition at 28-33. In addition to the trader conversations discussed 7 ||above, Plaintiffs point to the following specific instances where Defendants rerouted 8 ||imports originally intended for the West Coast as circumstantial evidence of conspiracy: 9 ||(1) Chevron diverted two cargoes of unidentified product in August 2014, (Pltfs. Ex. 85); 10 ||(2) Valero “cancelled another 80mb barge of Al to LA” in 2014 or 2015,* (Pltfs. Ex. 86 11 |}at VMSC_003193); (3) Shell diverted a cargo originally intended for Los Angeles to New 12 || York sometime in late 2015, or early 2016,*° (Pltfs. Ex. 87 at p. 602; Pltfs. Ex. 88 at 13 || SOPUS PGI 00223181); and (4) BP diverted a cargo originally intended for California to 14 || New York in January 2016, (J.A. 915—16, BP Ex. 6). 15 To meet their Step One burden of providing plausible and justifiable reasons for their 16 actions, Defendants explain that importing gas into California is a slow and costly 17 || proposition and by the time imports actually arrive, market conditions may have changed 18 || such that importing is no longer profitable. In general, Defendants scheduled few imports 19 ||because they were often logistically and economically unfeasible. See, eg, K. 20 21 2) ©. 23 35 Plaintiffs do not submit any evidence regarding what “A1” is or the dates of these cancellations, although the document appears to be dated in March 2014 or 2015. 24 □□ Plaintiffs do not identify the date of this diversion, although the documents appear to indicate || that it occurred sometime in late 2015 or early 2016. 26 15cv1749-JO-AGS and 18cv1374-JO-AGS | 27 1 || Archambault Declaration 22-26, 34; H. Henderlite Declaration § 23.7’ Because 2 || California is a “gasoline island,” imports could only be transported by sea. See id. And 3 || due to regulatory requirements, domestic imports could only be delivered by the limited 4 ||number of available Jones Act-compliant vessels (U.S.-assembled, -owned, and -crewed) 5 generally cost $10—-20 million per vessel, per year. See, e.g., K. Archambault 6 Declaration {J 22—23. Defendants Chevron, Valero, and BP also explain that the reroutes 7 || Plaintiffs highlight were necessary because by the time the import arrived weeks later, price 8 || margins had decreased, and Defendants determined that selling elsewhere would be more 9 || profitable. See, e.g., C. Yates Declaration J] 38-41; P. Brooks Declaration 4 47-48, 51— 10 57-59; see also Joint MSJ at 32; H. Henderlite Declaration 23-27; J.A. 915-916, 11 ||BP Ex. 628 The Court notes that some of Plaintiffs’ evidence supports, rather than 12 || ——_ ———————— 4 37 See also C. Yates Declaration {J 38-41; J.A. 30-32, Chevron Ex. 3; R. Sharum Declaration 15 || 15-17; L. Lockhart Declaration J 8; P. Brooks Declaration 47-48, 54; C. Dickson Declaration 52-56; M. Perez Declaration {| 6-8. 16 38 BP also submitted evidence that its alleged reroute in January 2016 was in fact a complex transaction with Valero that benefitted BP. See Joint MSJ at 32; H. Henderlite Declaration {{ □□□□□□ J.A. 17 94 5-916, BP Ex. 6. Valero had a cargo shipping from the United Kingdom to its Bay Area refinery but 18 realized that it could not get its cargo into its harbor because the cargo was too heavy to get through the “Pinole Shoals,” a channel that had to be crossed to reach Valero’s Bay Area refinery. See id. At the 19 time, BP had its own cargo coming to its Los Angeles refinery but realized that the cargo was unlikely to arrive in time to be used there because it was stuck in the Pacific Northwest due to weather. 20 id Thus, BP sold its cargo to Valero since it was not going to reach BP’s Los Angeles refinery in time and because BP was already at storage capacity at its Bay Area refinery and could not use the gas 21 See id. BP also purchased Valero’s shipment coming from the United Kingdom. See id. BP ultimately determined that selling Valero’s cargo into New York was more profitable than bringing it to the West Coast—at that time, Valero’s shipment was near Jamaica and thus was “over 1,000 nautical 23 || miles closer to the East Coast” than to the West Coast, and East Coast prices at that time were better than what West Coast prices were predicted to be by the time Valero’s cargo would have arrived at one of BP’s 24 || West Coast refineries. See id. 25 60 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |}undermines, Defendants’ explanation that imports were rerouted because market 2 ||conditions changed while shipments were en route. For example, Plaintiffs submit an 3 internal Shell presentation to prove that Shell’s reroute occurred, but the presentation itself 4 || explains that, “[w]ith the LA market weakening, STUSCO was able to divert the cargo to 5 || NYH and take $1.5mln of value on the cargo for the West Coast.” See Pltfs. Ex. 87 at p. 6 ||602. The Court finds that based on the above, Defendants have offered plausible and 7 || legitimate explanations consistent with the limitations of a “gasoline island” where imports 8 || generally cannot arrive quickly, and gas prices are prone to shifts such that prices may be 9 || different by the time an import arrives. See Defs. Ex. 2; McCullough Report J 37-39. 10 On the whole, the evidence demonstrates that Defendants did reroute imports in the 11 || four instances identified by Plaintiffs (see Pltfs. Exs. 85, 86—-89),*? but Plaintiffs do not 12 ||demonstrate that these reroutes were common or against Defendants’ self-interest. 13 || Plaintiffs argue that the fact that these reroutes occurred is sufficient to support a reasonable 14 |/inference of conspiracy because it does not make economic sense to sell CARBOB in a 15 || lower-priced market than California. See Opposition at 32—33. Plaintiffs, however, do not 16 || point to any evidence that selling in California would have been more profitable for the 17 || handful of rerouted imports they identify. 18 19 20 || _—_vU0——_| 21 Defendants concede on summary judgment that BP rerouted a cargo in January 2016 as 77 described above, see supra note 38, and thus, the existence of this reroute is not disputed. In opposing summary judgment, Plaintiffs point to Defendants’ admission that the reroute occurred but do not point 23 || to evidence in response to Defendants’ Step One explanation; instead, Plaintiffs merely state, without supporting evidence, that: “[this was] obviously against BP’s self-interest” because the East Coast is a 24 “lower priced market.” Opposition at 33. 25 61 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 With regard to the six Defendants other than BP and Phillips 66, the Court concludes 2 ||Plaintiffs’ proffered evidence regarding import decisions does not tend to exclude the 3 possibility of independent decision making. To summarize, Plaintiffs offer (1) four 4 instances of rerouted imports across a seven-year period from a pool of eight Defendants; 5 ||(2) no evidence that any of these reroutes were against economic interest; and (3) trader 6 ||communications discussing imports and expressing a preference for low-supply conditions. 7 ||As discussed above, the communications that tend to show that Defendants closely 8 ||monitored each other’s actions and generally preferred low-supply conditions do not, 9 || without more, support a reasonable inference of conspiracy. Considered together with the 10 || infrequent nature of rerouted imports and the lack of any evidence suggesting these reroutes 11 || were not profitable, a reasonable factfinder could infer that Defendants made independent 12 || decisions to disfavor imports in general and reroute imports when it was profitable to do 13 Plaintiffs’ evidence, therefore, does not tend to exclude the possibility that Defendants 14 || acted independently for self-interested reasons. 15 5. Supply Restrictions Through Exports 16 Plaintiffs also argue that Defendants exported gas out of California against self- 17 || interest when it would have been more profitable to sell in-state. They contend that these 18 j|actions provide further “plus factor” evidence that the eight Defendants in this case 19 || conspired to fix gas prices in California. See Opposition at 33-37. 20 To support these arguments, Plaintiffs submit three categories of evidence. First, 21 || Plaintiffs contend that Defendants increased their exports over the class period even though 22 |\their production capacities did not correspondingly increase. See id. at 34; Pltfs. Ex. 200. 23 ||Second, Plaintiffs point to certain Defendants who dual certified their gas to meet both 24 ||CARBOB specifications and other state requirements. See Pltfs. Exs. 94, 97-98; see also 25 62 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||Opposition at 34-35. Third, Plaintiffs identify two specific exports that they claim were 2 || against self-interest: (1) Phillips 66 exported 5,003 gallons of CARBOB from California 3 ||to Nevada in 2017, (Pltfs. Ex. 96 at 183:17—25 at p. 602); and (2) Tesoro began exporting 4 || gas to Mexico in 2017, (Opposition at 37). 5 To meet their burden at Step One, Defendants explain that they independently made 6 ||necessary, profit maximizing business decisions to export non-CARBOB and to dual 7 ||certify gas. With respect to exports of non-CARBOB, Defendants start by explaining that 8 ||manufacturing CARBOB necessarily creates byproducts that cannot be blended into 9 || CARBOB and thus cannot be sold in California. See, e.g., C. Yates Declaration 46.” 10 || Defendants therefore sold all product that did not meet CARBOB specifications outside of 11 || California to make a profit from it. See id. 12 In addition to exporting product that could not be sold in California, certain 13 || Defendants also utilized their California refineries to meet supply obligations in nearby 14 || geographies (e.g., Arizona) that were most conveniently supplied from California. See, 15 C. Yates Declaration ff 43-48." Defendants explained that they did so to meet supply 16 || obligations in nearby states like Arizona. See P. Brooks Declaration J 24—25, 55; Pltfs. Ex. 17 ||94; T.A., M. Pais Declaration J 13. For instance, Valero had contractual obligations to sell 18 || gas in Arizona, which requires “AZRBOB.” See P. Brooks Declaration Jf 24, 55. Because 19 || Arizona is connected by pipeline to both California and Texas, Valero usually supplied 20 || Arizona through its Texas refinery but supplemented from their California refinery when 21 20 3 40 See also N. Weinberg-Lynn Declaration {| 18-20; R. Sharum Declaration 10-12, 14; J. Harris Declaration {| 26-27; J. Marino Declaration § 3; P. Brooks Declaration 4 61-63. 24 41 See also P. Brooks Declaration 4 24-25, 63; J.A. 805, Valero Ex. 11. 25 63 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 Texas refinery could not supply enough product to meet Valero’s contractual 2 |}commitments in Arizona. See id. Dual certifying its gas as CARBOB and AZRBOB 3 |;enabled this flexibility. See id. 4 Finally, with respect to specific exports, Phillips 66 submitted evidence that it 5 ||exported 5,003 gallons of CARBOB to its Nevada site in 2017—“an extraordinarily 6 || unusual occurrence” likely following a supply disruption—which “constituted less than □ 7 ||of 1 percent of one day’s production.” R. Sharum Declaration §.13. As to Tesoro, it 8 ||explained that exports to Mexico in 2017 did not impact its supply commitments in 9 California and were part of a long-term strategy to develop in a market with growing 10 ||demand when California demand was forecasted to decline. See T.A. 348-352. 11 The evidence discussed above satisfies Defendants’ Step One burden to show that 12 ||Defendants exported gas consistent with proper business practice. For one, a reasonable 13 could find that Defendants justifiably exported non-CARBOB that they could not sell 14 California. In addition, a reasonable juror could find that the practice of dual 15 certification is consistent with competition. Dual certification produces a more fungible 16 || form of gas, which would have allowed BP and Valero flexibility as market needs arose. 17 || For instance, it would be reasonable for Valero to dual certify gas so that it could supply 18 || Arizona from California when its Texas refinery could not meet supply needs. Finally, 19 || based on Phillips 66’s and Tesoro’s explanations regarding their exports of CARBOB, a 20 ||reasonable juror could find that these specific exports were justified by proper business 21 practice. Phillips 66 explained that its one-time export was de minimis and justified by an 22 unusual supply need. Tesoro explained that its 2017 exports to Mexico were performed 23 ||for the purpose of establishing market presence in Mexico according to its long-term 24 || business strategy. Because Defendants meet their burden at Step One, the Court turns to 25 64 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || whether Plaintiffs meet their Step Two burden to identify evidence that tends to exclude 2 possibility that Defendants exported gas independently. 3 Plaintiffs attempt to meet their Step Two burden to show that Defendants’ exports 4 || were inconsistent with unilateral conduct by first pointing to a general increase in export 5 volumes between 2000 and 2020. Plaintiffs point to government data reflecting yearly 6 “finished gasoline” exports from the West Coast. See Pltfs. Ex. 200. This aggregated data, 7 || however, does not contain any information on (1) the extent to which the state of California 8 ||accounts for those exports, (2) the extent to which Defendants specifically account for 9 || those exports, or (3) how much of those exports were CARBOB versus non-CARBOB. 10 ||See id. Plaintiffs infer from this overall trend that some of Defendants’ exports were 11 j/unnecessary, but this generalized evidence does not shed light on whether the eight 12 ||Defendants in question engaged in unnecessary exports or whether any of their exports 13 || were against their financial self-interest. Plaintiffs also reiterate that certain Defendants 14 certified gas and argue that this practice was unprofitable but offer no evidence to 15 || support that argument. See Opposition at 34-35. 16 Next, Plaintiffs highlight two specific instances of exports against self-interest by 17 Phillips 66 and Tesoro. First, Plaintiffs point to a Phillips 66 export from California to 18 ||}Nevada in 2017 as evidence showing that Defendants “routinely dumped” CARBOB 19 || outside of California. See Opposition at 34-35. The only evidence that Plaintiffs point to 20 ||regarding Phillips 66’s 5,003-gallon CARBOB export to Nevada in 2017 is deposition 21 testimony that merely confirms the existence of that export. See Pltfs. Ex. 96 at 183:17— 22 In the face of Phillips 66’s explanation that this was a one-time export of a de minimis 23 ||amount of CARBOB, representing less than “2 of 1 percent of one day’s production,” the 24 fact that the export occurred does not tend to exclude the possibility that Philips 66 25 65 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |)independently made this export to cover its own supply shortage, rather than pursuant to a 2 ||conspiracy. See R. Sharum Declaration 7 13. As to Tesoro, Plaintiffs do not specify 3 ||whether those exports were CARBOB versus non-CARBOB, nor do they submit any 4 evidence to support the argument that those exports were unprofitable.*” Aside from the 5 || bald assertion that gas is cheaper in Mexico, Plaintiffs have submitted no evidence that 6 || Tesoro’s exports were not profitable, either in the short term or long term. Instead, 7 || Plaintiffs submit two documents: (1) a Chevron document noting that certain exports to 8 || Mexico would be uneconomic in 2014; and (2) data showing that California gas prices in 9 || late 2020 and early 2021 were above $3.00. See Pltfs. Exs. 100, 106. Whether exports to 10 Mexico would have been uneconomic for Chevron in 2014 has little bearing on whether 11 ||such exports would be equally uneconomic for Tesoro in 2017, especially given Tesoro’s 12 |/long-term business plan to expand to that geographic market. See Pltfs. Ex. 100.% 13 ||Similarly, Plaintiffs’ data that gas was selling for $3.00 per gallon in California during 14 || 2020 and 2021 has little bearing on the overall lack of profitability for Tesoro’s long-term 15 || growth plan. See Pltfs. Ex. 106. Without more concrete evidence, a factfinder should not 16 ||second guess Tesoro’s long-term business strategy “where the evidence concerning the 17 rationality of the challenged activities might be subject to reasonable dispute.” Citric Acid, 18 ||191 F.3d at 1101. Therefore, the Court finds that Plaintiffs have not pointed to evidence 19 || of exports that tends to exclude the possibility of independent conduct. 20 —_ —_——_ 22 42 Despite citing to certain exhibits, Plaintiffs fail to attach those exhibits to the record, which are 23 || marked “purposefully omitted” and thus are not considered by the Court. See Pltfs. Exs. 101-04. 43 This Chevron document appears to discuss exports to Mexico being uneconomic, at the time, 24 || because of a variety of factors, including production costs, Chevron-specific refinery considerations, and other then-present market factors. 66 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 6. Cooperation After the 2015 Exxon Explosion 2 Plaintiffs also point to Defendants’ behavior following an explosion at the Exxon 3 {refinery in 2015 as indicative of improper cooperation among supposed competitors. See 4 || Opposition at 22-24. Plaintiffs allege that instead of competing for Exxon’s market share 5 || when its refinery was down, as one would expect competitors to do, Defendants sold gas 6 Exxon to help it cover its supply shortage. See id. at 23. Plaintiffs also argue that when 7 Defendants sold gas to Exxon, they should have done so at higher prices to take maximal 8 || advantage of Exxon’s crisis. See id. at 22—23. Plaintiffs claim that these actions were quid 9 || pro quo favors in furtherance of the conspiracy. See id. 10 To satisfy their Citric Acid Step One burden, Defendants explain their responses to 11 Exxon explosion in 2015 as follows. Defendants offer evidence showing that each 12 ||refinery promptly responded to the explosion by maximizing in-state supply to take 13 || advantage of the overall shortage in the market and attendant price increases. See, e.g., K. 14 || Archambault Declaration 38-40; H. Henderlite Declaration □□ 29-32.% Defendants 15 || Shell, Tesoro, Chevron, Valero, and Phillips 66 also explain that they sold gas to Exxon at 16 || prevailing market rates rather than trying to circumvent the long-term contracts Exxon 17 ||maintained station-by-station with its retailers. See, e.g., C. Dickson Decl. 49 24—25; S. 18 || Roveda Declaration § 13; R. Sharum Declaration □□ 31-33; J.A. 339-53, Exxon Ex. 1.% 19 || Defendants explain that pursuing Exxon’s retail customers would have entailed convincing 20 || each local retailer to break its Exxon contract, and thus selling gas to Exxon directly □□□ 21 °° 23 “4 See also S. Roveda Declaration {J 10-12; N. Weinberg-Lynn Declaration § 32-33; M. Bodziak Declaration J 21; P. Brooks Declaration §f 26, 46; J.A. 733-38, Valero Exs. 1-2. 24 45 See also M. Perez Declaration {J 13-16; L. Lockhart Declaration 4 30; P. Brooks Declaration 25 90; E. Pestano Declaration § 42-45. 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 market rates was the more attractive and profitable alternative. See id.; see also Joint MSJ 2 44. Because it is plausible that pursuing individual negotiations with Exxon’s retail 3 ||stations could be costly and time consuming, the Court finds that Defendants have 4 ||produced a legitimate reason for preferring to sell gas to Exxon directly instead. 5 || Accordingly, Defendants meet their Step One burden. 6 At Step Two, Plaintiffs respond that it nonetheless would have been better for 7 || Defendants to pursue Exxon’s retail market share or extract higher prices from Exxon. See 8 Opposition at 22-24. The bare contention that pursuing Exxon’s market share was the 9 better economic course does not create a genuine dispute for the purpose of summary 10 ||judgment. Plaintiffs do not point to any specific evidence which would allow an inference 11 ||that sales were made to Exxon at below-market prices or that such sales were favors to 12 || Exxon rather than profit maximizing decisions. Moreover, based on evidence that multiple 13 ||refiners sold gas to Exxon, the inference that no one Defendant had the leverage to extract 14 || higher than market-rate prices from Exxon is as plausible as the inference that Defendants 15 || conspired to help Exxon against self-interest. Plaintiffs point to one email on February 24, 16 2015, from a Chevron employee in an unidentified role, questioning why Chevron would 17 ||sell alkylate, a gasoline blending component, to Exxon “from a competitive standpoint.” 18 || See Pltfs. Ex. 187. But without any evidence in the record regarding the economics of this 19 ||sale, one employee questioning a sale cannot support an inference that this was an 20 unprofitable transaction, much less a collusive action pursuant to a conspiracy. The 21 evidence in the record concerning Defendants’ reactions to the Exxon explosion therefore 22 || does not suggest behavior that tends to exclude the possibility of independent conduct, and 23 does not permit a reasonable inference of conspiracy. 24 /// 68 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 7. Market Manipulation Through a “Gentleman’s Agreement” 2 Plaintiffs allege that a “gentleman’s agreement” between West Coast traders to limit 3 trading hours provides further circumstantial evidence of collusion between Defendants. 4 ||See Opposition at 49. In an email exchange in August 2014, the West Coast trading 5 ||community—consisting of refiners, brokers, and large purchasers—voted and agreed to 6 || change the daily trading cut-off time from 3:30 p.m. Pacific Coast Time to 2:15 p.m. Pacific 7 || Coast Time, thereby aligning trading hours with OPIS“ reporting hours. See id.; see also 8 583-86, Phillips Ex. 20. Plaintiffs state that the 2014 agreement to “institute arbitrary 9 trading hours” was intended to increase cooperation among Defendants and deter traders 10 other parts of the world from participating in the market. See Opposition at 49. 11 Defendants explain that the proposal to move up the trading cut-off to 2:15 p.m. was 12 || driven by a desire to (1) better facilitate pipeline scheduling, (2) match OPIS’s cut-off time 13 that transactions were more likely to be reported, and (3) accommodate industry 14 ||personnel in the Central time zone. See, e.g., L. Lockhart Declaration □□ 31-32. 15 || Defendants also submit OPIS reports from 2014 that document these reasons and show that 16 || 27 entities participated in the vote. See McCullough Report 297-300 (“the vote was 17 ||dominated by independent traders as opposed to majors who own refineries on the West 18 || Coast”); see also J.A. 562-76, Phillips Ex. 17; J.A. 583-86, Phillips Ex. 20. A reasonable 19 || factfinder could infer from this evidence that Defendants agreed to the adjusted trading 20 ||hours for legitimate business reasons related to convenience and transparent price 21 ||reporting. Defendants therefore meet their burden at Step One. 22 |; —__ 23 46 OPIS is a price-reporting agency for the petroleum fuel supply chain, including rack, spot, and 24 prices. See Joint MSJ at 48. In the West Coast market, OPIS collects trading data and publicly 45 reports average pricing information. See J.A. 562-76, Phillips Ex. 17. 69 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 In response, Plaintiffs do not point to any specific evidence tending to show that the 2 ||agreement was not legitimate, self-interested behavior. Plaintiffs acknowledge that the 3 ||agreement “was supposedly meant to align trading hours with... OPIS” but argue that 4 “‘[t]his informal agreement to institute arbitrary trading hours could act as a deterrent to 5 || traders in other parts of the world that may not operate at the hours identified.” Opposition 6 49. The same could be said about any market’s trading hours. The possibility that 7 || trading hours could be inconvenient for unspecified actors “in other parts of the world” is 8 ||not evidence and does not tend to rule out the possibility of independent action. 9 || Accordingly, the Court finds that the “gentleman’s agreement” does not permit a 10 reasonable inference of conspiracy. 11 8. Market Manipulation Through Wash Trades 12 Plaintiffs further contend that Defendants engaged in deceptive “wash trades” to 13 |/create a false sense of demand and raise prices in the market. Opposition at 47-49. 14 || According to Plaintiffs’ expert, a “wash trade” occurs when party | trades a quantity of 15 || product to party 2 and, around the same time, party 2 trades a similar quantity of the same 16 || product back to party 1, at the same price. See McCullough Report 401-06. Trading 17 || activity in the form of a “wash trade” has zero net economic effects for the trading parties 18 creates a falsely inflated sense of demand in the market. See id.; see also McCullough 19 ||Report § 403. To provide circumstantial evidence of an eight-Defendant conspiracy, 20 Plaintiffs identify a handful of what they allege are wash trades performed by Chevron, 21 Shell, and Valero. See Plitfs. Exs. 170, 176-70. 22 At Step One, Defendants offer explanations to demonstrate that the alleged “wash 23 ||trades” were, in fact, legitimate transactions. Citric Acid, 191 F.3d at 1094. Each 24 Defendant accused of executing a wash trade points to evidence showing that the trade in 25 70 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 || question does not fit Plaintiffs’ definition of a wash trade—that is, parties trading similar 2 || quantities of gas, at similar prices and times, and without economic benefit. First, Chevron 3 ||submits evidence that its alleged wash trades did not occur on the same day (and thus are 4 ||not similar in time), were executed by different brokerages (and thus were not direct trades 5 || with other Defendants), and closed at different prices. See R. Pluimer Declaration § 11; 6 ||J.A. 92, Chevron Ex. 9. Chevron argues that because these trades were not similar in time 7 price and were not direct trades with other Defendants, they do not fit Plaintiffs’ 8 || allegations of two trades that cancel one another out. Second, Shell submits evidence that 9 || for each alleged wash trade, more than one of the following circumstances was present: the 10 |/trades were (1) for different products, (2) performed at different locations in a location- 11 swap, (3) closed at different prices, (4) separately facilitated by unrelated brokers, 12 ||(5) performed at different times, (6) structurally distinct (e.g., different delivery times), or 13 ||(7) one-way transactions, not trades. See J.A. 164-81, Shell Exs. 7-10; J.A. 201—20, Shell 14 13-17; J. Marino Declaration {J 6, 9-11, 13-14; S. Rodrick Declaration □□ 7, 9; R. 15 || Pluimer Declaration § 11; J.A. 92, Chevron Ex. 9. Third, Valero submits evidence that its 16 |/alleged wash trades were beneficial to Valero, carried economic risk, and were for 17 || materially different products exchanged on different dates. See P. Brooks Declaration § 78; 18 804-13, Valero Exs. 14-15. Valero argues that this evidence shows that the trades 19 not have cancelled one another out as Plaintiffs theorize. The Court finds that 20 || Defendants meet their burden at Step One to rebut Plaintiffs’ evidence of wash trades with 21 ||evidence that would permit a reasonable juror to conclude that the trades in question □□□□ 22 in fact illusory “wash trades” with no other benefit than manipulating public 23 || perceptions in the market. 24 71 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 l In opposing summary judgment at Step Two, Plaintiffs discuss only one set of 2 |/transactions between two Defendants (Chevron and Shell) as evidence tending to exclude 3 |{independent action. Plaintiffs’ evidence shows that in 2015, a Chevron trader suggested in 4 || an internal email that he would sell Chevron’s “swaps” after his coworker was “in buying 5 || for a couple of days.” See Pltfs. Ex. 176. This trader testified at his deposition that he was 6 hoping that his coworker’s buying “would push the mark - he would have the market 7 ||impact, and the market would possibly move up” so that prices would be higher by the time 8 sold Chevron’s “swaps.” See Plitfs. Ex. 170 at 216:9-17; see also Pltfs. Ex. 176. In the 9 ||days after this communication, his coworker did in fact execute several transactions, 10 ||including two with Shell on April 20—21, 2015. See Plitfs. Ex. 177. Plaintiffs argue that 11 evidence permits the inference that these transactions between Chevron and Shell on 12 || April 20-21, 2015, were wash trades performed pursuant to a conspiracy. 13 Plaintiffs fail to meet their burden at Step Two because Plaintiffs’ evidence does not 14 || suggest any concerted action between companies, as opposed to within one company. 15 15 ||U.S.C. § 1; In re Dynamic Random Access Memory (DRAM) Indirect Purchaser Antitrust 16 || Litig., 28 F.4th 42, 48 (9th Cir. 2022) (“[o]nly concerted activity is actionable under 17 Section 1” of the Sherman Act). Even if Plaintiffs’ evidence at Step Two permitted the 18 inference that this trader’s coworker traded in the market for the sole purpose of raising 19 || market prices to benefit that trader’s later “swap” sales, it remains unclear how this would 20 || allow for a plausible inference that Chevron and Shell entered into an unlawful agreement, 21 || without more. Thus, the Court concludes that Plaintiffs have not met their Step Two burden 22 || to point to specific evidence that tends to exclude the possibility of independent conduct. 23 /// 24 /// 72 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 9. Market Manipulation Through Selective Price Reporting 2 Plaintiffs argue that their evidence demonstrates that traders at Chevron, Shell, 3 ||Tesoro, and Phillips 66 selectively reported only higher-priced trades to OPIS to 4 ||manipulate market prices. See Opposition at 45-47. OPIS is a third-party pricing agency 5 publishes market information, including average daily spot prices. See J.A. 562—76, 6 || Phillips Ex. 17; M. O’Neal Declaration J 4; C. Dickson Declaration § 59. OPIS collects a 7 ||sample of transactions and publishes the high, low, and average prices in the Los Angeles 8 ||and San Francisco markets. See J.A. 562—76, Phillips Ex. 17; L. Lockhart Declaration 9 12-13. Defendants priced their gas at the rack and Dealer Tankwagon, in part, on price 10 || indices such as OPIS.” 1] Plaintiffs and Defendants dispute whether there is any evidence in the record of 12 ||selective reporting. At Step One, Defendants argue that Plaintiffs have failed to point to 13 evidence of selective reporting, and thus that there is no genuine dispute of material 14 || fact with respect to this plus factor. See Dkt. 719 (“Defendants’ Joint Reply”) at □□□□□□ 15 Step Two, Plaintiffs point to communications where traders asked brokers to report 16 || completed trades to OPIS and where traders questioned whether trades would be reported 17 ||to OPIS. See Opposition at 45-47; see also Pltfs. Exs. 11, 76-77, 169, 171, 174. 18 || Accordingly, the Court turns to whether Plaintiffs’ evidence is sufficient to create a genuine 19 || dispute of material fact on whether any Defendants engaged in selective reporting. 20 21 2) |. 73 “7 See, e.g., K. Archambault Declaration 59, 61, 63; M. O’Neal Declaration 4; J. Hodgson Declaration {J 11, 13-14, 19-20, 23, 27; D. Smith Declaration § 3; P. Brooks Declaration ff 10, 91, 94; 24 ||C. Dickson Declaration □□ 27-29; T.A. 3, W. Eckard Declaration 9 10-11. 25 73 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 Examination of Plaintiffs’ evidence shows that what Plaintiffs deem “selective 2 ||reporting” does not allow for an inference of conspiracy. With respect to Shell and 3 ||Chevron, the evidence, at most, shows that their traders consistently reported all trades. 4 || See Pltfs. Ex. 11 at line 61501 (Shell trader: “Every deal I do needs to go to opis”); Pltfs. 5 || Ex. 77 at 87:7-14 (“Q: In other words . . . you as the trader had your own requirement that 6 ||each one of your deals be reported to OPIS in some fashion? A: I wanted my deals to be 7 ||reported to OPIS, yes.”); Pltfs. Ex. 171 (Chevron trader: “I would like that deal reported as 8 ||/normal’”). The evidence with respect to Phillips 66 similarly falls short. Plaintiffs point to 9 document where a broker asked a Phillips 66 trader whether he should “report this to 10 ... or keep p and c,” and the Phillips 66 trader replied, “report please.” Pltfs. Ex. 11 A reasonable juror could not infer from the above conversations that Defendants 12 || worked together to selectively report OPIS trades. 13 The Court turns to the remaining evidence consisting of testimony from Tesoro’s 14 || trader that he tried to hide certain trades from being reported. This trader testified that he 15 || would typically avoid trading through a broker when he was covering an unexpected 16 || shortfall, so that the broader market would not “see a buyer looking for 500,000 barrels of 17 || gasoline.” See Pltfs. Ex. 76 at 222. This evidence that Tesoro’s trader sought to keep 18 certain information from the market when it did not benefit Tesoro may raise an inference 19 || of inappropriate conduct by Tesoro’s trader. It does not, however, create an inference that 20 ||he did so pursuant to an agreement with other Defendants rather than pursuant to what he 21 ||deemed to be in Tesoro’s unilateral interest. Because evidence that is equally consistent 22 || with conspiracy and independent conduct does not tend to exclude the possibility of 23 ||independent conduct, Plaintiffs’ evidence of selective reporting does not permit an 24 inference of conspiracy. 25 74 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 10. Market Manipulation Through False Public Statements 2 Plaintiffs’ complaints originally contended that Defendants publicly made false or 3 ||misleading statements about refinery outages as part of an agreement to manipulate 4 ||California gas prices. See Dkt. 76 at 18-20, 28-31 (detailing Defendants’ “claimed 5 ||reason[s]” for maintenance and alleging these reasons were false); Bartlett, Dkt. 44 at 10— 6 || 11, 17-20 (same). On summary judgment, however, Plaintiffs appear to be pursuing a 7 ||slightly different theory. In their opposition, Plaintiffs argue that market information 8 ||reported by the media was “laughably incorrect,” and that Defendants had “superior 9 information” but made no efforts to correct inaccurate media reports. See Opposition at 10 |}20—21. Plaintiffs point to evidence like the following: In 2012, BP internally discussed an 11 || article reporting on a fire at BP’s refinery, and one employee stated that the article was “off 12 several facts, which is good.” See Pltfs. Ex. 54. In addition to evidence like the 13 foregoing, Plaintiffs argue that Defendants “exploit[ed] this [information] gap” by 14 || “present[ing] information contrary to known facts.” Opposition at 21. In support of this 15 ||sweeping allegation, Plaintiffs submit just one instance where Valero publicly announced 16 ||its maintenance schedule but may have concluded maintenance earlier than announced. 17 || See Pltfs. Ex. 56. 18 Defendants address their Step One burden by submitting evidence tending to show 19 ||that the alleged misleading statements Plaintiffs pointed to in their complaints were 20 || accurate, boilerplate, and not misunderstood by the industry. Exxon submits evidence to 21 that its brief response to a media inquiry regarding its October 1, 2012 power outage 22 || was factually accurate. See Joint MSJ at 39-40; J. Kechkian Declaration J 8; J.A. 393-96, 23 || Exxon Ex. 9. Chevron and Shell similarly submit evidence that the statements each made 24 || were factually accurate. See Joint MSJ at 40; C. Yates Declaration J] 25-28; G. Johnson 25 75 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Declaration 4-10. Valero also argues that public statements about how long a refinery 2 || unit is estimated to be offline, made soon after an incident, are based on circumstances that 3 ||are subject to change and often do change. See P. Brooks Declaration 4102. Valero 4 ||contends it is widely understood in the industry that such initial estimates are usually 5 ||revised as additional facts become known, and thus no one is misled when refineries give 6 |/initial maintenance estimates. See id. Defendants’ evidence would allow a reasonable 7 ||juror to find that Defendants issued these statements in good faith and consistent with 8 || typical business practices. Accordingly, Defendants meet their burden at Step One to offer 9 || plausible and justifiable reasons for their conduct. 10 Plaintiffs’ evidence is insufficient to raise a reasonable inference of conspiracy 11 || because it does not tend to exclude the possibility that Defendants acted independently and 12 justifiably with regard to their public statements. Plaintiffs point generally to incorrect 13 ||news reports, but Plaintiffs neither argue nor offer evidence that Defendants played any 14 in supplying or proliferating the false information contained therein.** Further, 15 || Plaintiffs point to only one specific instance where a Defendant made an allegedly 16 ||misleading public statement: documents establish that Valero said publicly that its 17 ||machinery “should be at planned rates by mid-August” 2012 but by August 8, internally 18 ||noted that “we’re looking at late this week/early next week.” See Pltfs. Ex. 56. This 19 ||evidence may suggest that Valero intentionally misled the public about the duration of its 20 || maintenance and concealed the fact that maintenance actually concluded a few days earlier 21 2 ©. 23 48 To the extent that Plaintiffs are arguing that Defendants had an affirmative duty to correct news articles they played no role in creating, Plaintiffs have not articulated any legal theory under which 24 || Defendants would have such a duty, and the Court declines to locate one for them. 25 76 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 publicly announced. See id. Given Valero’s evidence that refinery maintenance 2 estimates are subject to change, the above evidence could also support the inference that 3 || Valero publicly announced a good faith estimate of its maintenance, but that maintenance 4 ||simply took less time than originally estimated. See P. Brooks Declaration J 102. Given 5 ||that the evidence submitted by Plaintiffs supports both inferences, it does not tend to 6 ||exclude the possibility that Valero made a good-faith public announcement rather than 7 ||intentionally deceived the public pursuant to a conspiracy. Accordingly, this plus factor 8 || does not support a reasonable inference of conspiracy. 9 11.The Evidence as a Whole 10 Having addressed each of the categories of circumstantial evidence offered by 11 |) Plaintiffs in support of their conspiracy claim, the Court now considers the crucial question 12 whether the record, viewed as a whole, supports an inference of conspiracy. 13 || Citric Acid, 191 F.3d at 1106 (courts must consider “whether the evidence considered as a 14 || whole can support an inference of conspiracy”) (emphasis in original). In doing so, the 15 || Court views the evidence in the light most favorable to Plaintiffs. Matsushita, 475 U.S. at 16 ||587-88. If the evidence produced by Plaintiffs does not “reasonably tend[ ] to prove that 17 || [Defendants] had a conscious commitment to a common scheme designed to achieve an 18 || unlawful objective,” and does not “tend[ ] to exclude the possibility that [Defendants] were 19 || acting independently,” then summary judgment must be entered against them. Monsanto, 20 || 465 U.S. at 764 (internal quotation marks and citation omitted). 21 Before examining the inferences permitted by the evidence, the Court starts with a 22 ||summary of the circumstantial evidence that Plaintiffs have marshaled to prove the wide 23 ||ranging, eight-Defendant conspiracy that they allege. With respect to Plaintiffs’ arguments 24 || that Defendants manipulated public facing gas prices, Plaintiffs were not able to create a 25 77 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 triable issue of fact that Defendants selectively reported trades or conducted wash trades, 2 they point to only one purportedly false public statement by Valero which misstated 3 ||the duration of maintenance. The Court is therefore largely left to consider Plaintiffs’ 4 || arguments that Defendants acted to “strangle” supply in the following ways: (1) produced 5 than the maximum amount of CARBOB;* (2) maintained low inventories; 6 ||(3) rerouted approximately four imports between eight Defendants over seven plus years; 7 (4) exported gas out of the state of California. See, e.g., Pltfs. Exs. 66-67, □□□□□□ 89, 8 ||200. The Court will consider all of the foregoing actions against the backdrop of 9 ||(1) communications showing that traders desired low-supply/high-price conditions; 10 ||(2) trader communications sharing refinery information while buying and selling gas from 11 |}one another; (3) collaboration among Defendants to cover each other’s supply needs, as 12 exemplified by exchange agreements and the refiners’ reactions to the Exxon explosion; 13 || and (4) the undisputed fact that Defendants joined an agreement to limit West Coast trading 14 hours. 15 In considering the entirety of Plaintiffs’ evidence, the Court finds that it does not 16 ||support a reasonable inference of the eight-Defendant conspiracy alleged by Plaintiffs. 17 || Absent from Plaintiffs’ evidence that Defendants acted against self-interest to “strangle” 18 ||supply is any proof that Defendants’ actions were not profit maximizing or that they 19 ||lowered supply despite market demand. In fact, the evidence suggests that Defendants 20 ||increased supply in California as demand rose. See, e.g., K. Archambault Declaration 21 ©—ti ° see also 2 ||McCullough Report 4 36 (“[o]ver the past twenty years, California refinery out-put has 3 || always been greater than California gasoline demand.”). In the absence of any evidence to 4 support Plaintiffs’ theory that Defendants’ supply decisions were not profit maximizing, 5 ||the undisputed facts that Defendants had the capabilities to produce more CARBOB, 6 ||maintained low inventories, rerouted a handful of imports, and exported gas out of 7 ||California, does not tend to exclude the possibility that Defendants made those decisions 8 independently rather than pursuant to an agreement. Citric Acid, 191 F.3d at 1094. 9 The trader communications expressing their preference for low-supply/high-price 10 conditions and the backdrop of general collaboration among Defendants does not change 11 ||this picture to one of conspiracy. Players in concentrated markets are often highly 12 |;conscious of their “shared economic interests” in making “output decisions” and act 13 || accordingly to maximize profits. Brooke Grp., 509 U.S. at 227. While it is illegal to act 14 || pursuant to a conspiracy, it is not illegal to act pursuant to oligopolistic self-interest, even 15 || when those actions drive supracompetitive prices. Jd. (“[C]onscious parallelism, describes 16 || the process, not in itself unlawful, by which firms in a concentrated market might in effect 17 ||share monopoly power, setting their prices at a profit-maximizing, supracompetitive 18 level.”). The trader communications Plaintiffs highlight evidence a shared preference for 19 || low-supply/high-price conditions and a mutual desire to act accordingly. See supra 20 || Sections V.D.2-3. Aside from providing a motive (which courts have held is, alone, 01 22 23], 24 5° See also N. Weinberg-Lynn Declaration §§ 32-33; M. Bodziak Declaration § 21; P. Brooks || Declaration 11 26, 46; J.A. 733-38, Valero Exs. 12. 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 insufficient), these emails illustrate the reality that Defendants engaged in conscious 2 || parallelism while operating in a highly concentrated market. 3 Plaintiffs’ other evidence similarly portrays Defendants as interdependent and 4 || highly responsive to what their competitors are doing: Defendants admit to being conscious 5 ||of one another’s pricing and factoring that information into their respective pricing 6 || decisions.*! In the spot market, their traders gather as much information as possible about 7 ||their counterparts refinery conditions to explore opportunities for their own future 8 || trading.°? And while Plaintiffs have shown Defendants cooperate with each other in certain 9 || ways, the evidence supports the inference that self-interest and interdependence drove this 10 || purported collaboration. Defendants entered into mutually beneficial exchange agreements 11 || to trade barrels so they could maintain low inventory levels and cover shortages without 12 || having to pay high market rates. See, e.g., Pltfs. Exs. 114-28. By selling barrels to Exxon 13 || after their 2015 refinery explosion, it could be that Defendants sought to benefit themselves 14 the least troublesome and most profitable way, given the long-term contracts that Exxon 15 with retailers. 16 The above evidence may support an inference that the six Defendants, aside from 17 and Phillips 66, engaged in conscious parallelism because each independently 18 recognized it benefitted from low-supply conditions and each sought the maximum price 19 ||advantage. While such oligopolistic maneuvering may be an undesirable market for 20 21 | See, e.g., J. Hodgson Declaration ff 9-15, 19-20, 23, 27-28; P. Brooks Declaration { 96; K. Archambault Declaration § 59; J. Harris Declaration J 6; J.A. 115, Shell Ex. 1; M. O’Neal Declaration 23 % See, e.g., Pitfs. Exs. 6, 8-12, 19-20, 35-44, 46-50, 52, 192-93. 24 53 See, e.g., Joint Statement § 22; K. Archambault Declaration {J 63, 66-70; C. Yates Declaration 9g || 1950-2. 20 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||consumers, such a market is not prohibited by antitrust law. Because none of the above 2 to exclude the possibility that each Defendant took independent actions to maximize 3 profits, Plaintiffs have not created a reasonable inference of the wide ranging, eight- 4 Defendant conspiracy that they allege. 5 With regard to BP and Phillips 66, the evidence supports a reasonable inference of 6 ||conspiracy. In addition to the above, the traders for these Defendants exchanged supply 7 || information that they admitted they considered confidential and reported information to the 8 ||departments responsible for setting production levels. J. Yomtoob Declaration □ 25 9 || (information “may sometimes be transmitted to BP’s supply and refinery planning teams 10 determine whether there is an opportunity to supply counterparties”); L. Lockhart 11 Declaration § 47 (“on occasion, I discussed with our California refineries whether they 12 increase production of CARBOB” based on trader information) (emphasis omitted). 13 || This evidence permits an inference that information was exchanged pursuant to an 14 ||agreement. Unlike other traders who exchanged information in the course of buying and 15 |{selling to further their own future trading opportunities, BP’s and Phillips 66’s traders 16 ||admitted to using information outside of trading to influence refinery decisions. While 17 evidence of low-level traders exchanging information to benefit their buying and selling 18 be consistent with independent decision making in a concentrated market, evidence 19 || that traders shared confidential information up the chain-of-command does tend to exclude 20 || the possibility of independent conduct. Accordingly, a reasonable juror could find that BP 21 |; and Phillips 66 agreed to share information pursuant to a conspiracy. 22 VI. CAUSATION 23 Because causal antitrust injury is an essential element of Plaintiffs’ antitrust 24 || conspiracy claim, the Court turns to whether a genuine dispute of material fact exists with 81 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||respect to causation. In their opposition, Plaintiffs point to the opinions of their experts, 2 ||Dr. Williams, Dr. Hanouna, and Mr. McCullough, as evidence that the conspiracy 3 ||described above caused gas prices in California to be higher than they would have been 4 || absent the anticompetitive conduct. See Opposition at 53-56. Defendants seek to exclude 5 ||Dr. Williams’ and Dr. Hanouna’s expert opinions on causation as inadmissible under 6 || Daubert and Federal Rule of Evidence 702. See Dkt. 616. Defendants also argue that 7 ||neither Dr. Hanouna nor Mr. McCullough offer opinions on causation. See id.; see also 8 || Dkt. 613. 9 In the next section, therefore, the Court first examines the admissibility of 10 Williams’ and Dr. Hanouna’s expert opinions with respect to causation. The Court 11 ||then turns to whether Mr. McCullough’s expert opinions or any other facts in the record 12 || create a genuine issue of material fact on the element of causation. 13 || A. Daubert Challenges to Dr. Williams and Dr. Hanouna on Causation 14 Federal Rule of Evidence 702 provides that expert opinion evidence is admissible if 15 || “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of 16 || fact to understand the evidence or to determine a fact in issue; (b) the testimony is based 17 sufficient facts or data; (c) the testimony is the product of reliable principles and 18 methods; and (d) the expert has reliably applied the principles and methods to the facts of 19 case.” Fed. R. Evid. 702. Plaintiffs bear the burden of establishing that the 20 admissibility requirements are met by a preponderance of the evidence. Fed. R. Evid. 21 || 104(a); Advisory Committee Notes to Rule 702, 2000 Amendments (quoting Jn re Paoli 22 ||R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994), and explaining that proponents 23 ||“only have to demonstrate by a preponderance of evidence that their opinions are reliable’); 24 25 82 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 also Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996) (“It is 2 ||the proponent of the expert who has the burden of proving admissibility.”). 3 In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 4 || 702 requires the district court to act as a gatekeeper to “ensure that any and all scientific 5 ||testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. 579, 589 6 ||(1993). In its role as a gatekeeper, the trial court must ensure that an expert report is reliable 7 “relevant to the task at hand” before it reaches a jury. Primiano v. Cook, 598 F.3d 558, 8 (9th Cir. 2010), as amended (Apr. 27, 2010) (quoting Daubert, 509 U.S. at 597). 9 ||“Expert opinion testimony is relevant if the knowledge underlying it has a valid connection 10 || to the pertinent inquiry. And it is reliable ifthe knowledge underlying it has a reliable basis 11 ||in the knowledge and experience of the relevant discipline.” Jd. at 565 (citation and internal 12 || quotation marks omitted). Ultimately, “[t]he objective” of the Court’s gatekeeping role “is 13 make certain that an expert... employs in the courtroom the same level of intellectual 14 that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. 15 || Carmichael, 526 U.S. 137, 152 (1999). Thus, an expert’s scientific conclusions must be 16 ||supported by “good grounds for each step in the analysis,” meaning that “any step that 17 ||renders the analysis unreliable under the Daubert factors renders the expert’s testimony 18 ||inadmissible.” Paoli R.R. Yard, 35 F.3d at 745 (emphasis omitted); accord Hardeman v. 19 || Monsanto Co., 997 F.3d 941, 962 (9th Cir. 2021) (“expert evidence is inadmissible where 20 || the analysis is the result of a faulty methodology or theory”) (citation omitted). 21 When evaluating the admissibility of an expert’s testimony, the Court focuses on the 22 ||soundness of the expert’s methodology, not the correctness of the expert’s conclusions. 23 || Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995). Thus, “[s]haky 24 || but admissible evidence is to be attacked by cross examination, contrary evidence, and 25 83 26 15cv1749-JO-AGS and 18ev1374-JO-AGS 27 1 attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564 (citation 2 |;omitted). The judge is “supposed to screen the jury from unreliable nonsense opinions, but 3 exclude opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. 4 || Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). 5 1. Dr. Williams 6 Dr. Williams, Consumer Plaintiffs’ causation and damages expert, used a forecasting 7 ||regression methodology to determine the price overcharges resulting from the alleged 8 || conspiracy—i.e., the increase in gas prices attributable to the alleged conspiracy as opposed 9 ||to other market factors. See Opposition at 56; see also Dkt. 608, Ex. A (“Williams 10 ||Report”). Based on his analysis, Dr. Williams opined “that Defendants’ alleged conduct 11 || caused actual wholesale prices to substantially exceed but-for wholesale prices,” with total 12 || damages to consumers equaling $15 billion. Williams Report 63, 70. For the reasons 13 ||set forth below, the Court agrees with Defendants’ arguments that Dr. Williams’ expert 14 || opinion on causation is inadmissible under Federal Rule of Evidence 702. 15 While a forecasting regression analysis is a generally accepted econometric 16 ||approach to determining causation and damages in the antitrust context, see, e.g., United 17 || States ex rel. Brown v. Celgene Corp., 226 F. Supp. 3d 1032, 1042 n.11 (C.D. Cal. 2016), 18 || the Court must examine whether Dr. Williams’ specific application of that methodology in 19 case meets Rule 702 and Daubert standards for reliability and relevance. Forecasting 20 ||regression methodology requires an expert to first identify a benchmark period free of 21 || anticompetitive conduct and a damages period when the allegedly anticompetitive conduct 22 ||occurred. See Halbert White, Robert Marshall & Pauline Kennedy, The Measurement of 23 || Economic Damages in Antitrust Civil Litigation, 6 Econ. Comm. Newsl. 17, 17-22 (2006); 24 || Williams Report {J 44-48, 50. The expert then calculates the relationship between various 25 84 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || factors impacting prices (e.g., the cost of raw materials) and the resulting prices during the 2 || benchmark, to establish a baseline for how those factors influenced prices during a “clean” 3 ||period without anticompetitive behavior. See White, Measurement, supra, at 18-20; 4 || Williams Report 4 52. Using the data from the benchmark period, the expert then predicts 5 ||what prices would have been in the damages period without the defendants’ allegedly 6 ||anticompetitive conduct. See White, Measurement, supra, at 20-21; Williams Report 7 45-46, 56. The difference between the predicted prices in the “no conspiracy” world 8 the actual prices in the damages period constitutes the class damages. See Williams 9 ||Report 944. By isolating and quantifying the effects of the allegedly anticompetitive 10 ||conduct in this way, a valid regression model can also tend to show that the price 11 || differential is attributable to the alleged anticompetitive conduct and serve as evidence of 12 causation. See generally White, Measurement, supra. 13 The fundamental premise of a forecasting regression approach is that prices in the 14 ||“clean” period were influenced only by lawful economic variables (raw materials, 15 || production costs, efc.), and prices during the conspiracy were influenced by the same 16 ||lawful economic variables plus the conspiracy’s anticompetitive conduct. Once the 17 |;}economist understands how conspiracy-free prices are created by lawful economic 18 || variables, he can reasonably assume that higher prices in the conspiracy period were caused 19 || solely by the conspiracy’s anticompetitive conduct. Thus, a sound econometric approach 20 ||to selecting these periods is essential to the validity of the entire analysis. An expert 21 selecting a benchmark period must have a reasonable basis to assume that the period is 22 || free of anticompetitive conduct. White, Measurement, supra, at 18 (“The [non-collusive] 23 || benchmark may be a period of time, like the pre-plea period [o]r . . . where it is reasonable 24 believe that collusion was absent”); Justin McCrary & Daniel L. Rubinfeld, Measuring 25 85 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || Benchmark Damages in Antitrust Litigation, 3 J. of Econ. Methods, 63-74 (2014) (noting 2 ||that anticompetitive conduct in the benchmark period risks producing “a biased damages 3 || estimate, which is inappropriate”); David L. Faigman et al., Modern Scientific Evidence: 4 Law and Science of Expert Testimony, at § 43:35 (Dec 2021 Update) (noting that 5 |{regression analyses should not be used “if the allegedly unlawful behavior has always been 6 || present.”). Dr. Williams himself appears to agree with the foregoing, as he relied on some 7 ||of these same sources in his opening report. Williams Report § 45 n.37 (citing White, 8 || Measurement, supra and McCrary, Measuring Benchmark Damages, supra). Moreover, 9 Williams specifically criticized Defendants’ regression analysis on this basis, arguing 10 || that the benchmark period “should be free from the effects of the alleged conspiracy,” in 11 || part, because “if one measures cartel prices against cartel prices, those prices will no longer 12 || appear to be the result of the cartel.” Dkt. 608, Ex. G (“Williams Rebuttal Report”) □ 58. 13 Here, Dr. Williams’ methodology disregarded the basic econometric principle of 14 || selecting a benchmark period that is reasonably free of misconduct so that it can serve its 15 || fundamental purpose—to act as a baseline such that conclusions can be drawn about how 16 || anticompetitive conduct impacted prices in the damages period. At the outset of his 17 ||regression analysis, Dr. Williams selected the “clean” benchmark period as January 2005 18 ||to January 2015, but provided no justification for this selection. Williams Report { 50; 19 || Dkt. 608, Ex. C (“Williams Dep.”) at 224:3—-4 (“I was not instructed by counsel as to the 20 definition of the benchmark period.”). Dr. Williams then defined the damages period 21 || where price fixing occurred as February 2015 to December 2019, “based on instruction of 22 ||counsel.” Williams Report J 50. In contrast, Consumer Plaintiffs’ complaint originally 23 ||alleged that the price fixing conspiracy first occurred in 2012, not February 2015, and 24 ||Persian Gulf’s complaint similarly alleged that the Defendants’ price fixing conspiracy 86 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 began in 2012. See Bartlett, Dkt. 44 at 46; Dkt. 76 at 64. Based on Plaintiffs’ initial 2 |jallegations, Dr. Williams’ benchmark period contained more than three years of 3 || anticompetitive misconduct, when it is supposed to be “clean.” 4 Such incongruity between the pleadings and the expert’s analysis would not pose a 5 ||methodological problem if Dr. Williams chose a benchmark period based on post- 6 || discovery evidence instead. As the In re Packaged Seafood Prod. Antitrust Litig. court 7 ||noted, an expert’s benchmark period selection based on post-discovery evidence, rather 8 pleading allegations, only strengthens the relevance of an expert’s analysis. 332 9 || F.R.D. 308, 326 (S.D. Cal. 2019) (refining of conspiracy period based on the expert’s 10 || “analysis of the record evidence in the case . . . bolster[ed] the reliability of the [regression] 11 ||model”). Here, however, Dr. Williams’ benchmark and damages periods are also 12 inconsistent with Plaintiffs’ contentions after years of gathering evidence in discovery. At 13 close of fact discovery, Plaintiffs asserted in binding interrogatory responses that the 14 ||conspiracy—effected by information exchanges, supply restrictions, and market 15 || manipulation discussed supra—began no later than August 1, 2011. Dkt. 455, Ex. C at 12; 16 || Dkt. 455, Ex. D at 13. Therefore, based on Plaintiffs’ post-discovery theory of the case, 17 Williams’ benchmark period contained more than four years of anticompetitive 18 misconduct, when it is supposed to be “clean” of misconduct. 19 Dr. Williams’ identification of the period from 2005 to 2015 as “clean” is also 20 || inconsistent with the evidence that Plaintiffs present to the Court on summary judgment. 21 their opposition to Defendants’ motions, Plaintiffs ask the Court to consider a conspiracy 22 |/implemented by acts beginning in at least 2011 that caused inflated prices starting in “at 23 2012.” See, e.g., Opposition at 1, 39. For example, Plaintiffs identify exchange 24 ||agreements that have been in place since 2005. See Pltfs. Exs. 114-128. Plaintiffs also 25 87 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || point to information exchanges, the focal point of Plaintiffs’ arguments, beginning in 2012. 2 ||See, e.g., Pltfs. Exs. 43-44 (trader exchanges in 2012); Pltfs. Exs. 19, 46, 65 (trader 3 ||exchanges in 2013); Pltfs. Exs. 11, 34, 47 (trader exchanges in 2014). Plaintiffs similarly 4 || argue that Defendants’ market manipulation and supply restrictions began in 2012. See 5 ||McCullough Report {| 404—05 (describing wash trades in 2012 and 2014); Pltfs. Ex. 56 6 || (sole evidence of false public statements occurred in 2012); Pltfs. Ex. 85 (Chevron diverted 7 cargoes in August 2014); Pltfs. Ex. 100 (Chevron considering exports to Mexico in 8 2014); J.A. 583-86, Phillips Ex. 20 (“gentleman’s agreement” on trading hours in 2014). 9 ||Mr. McCullough, Plaintiffs’ liability expert, also pointed to anticompetitive conduct 10 || starting in 2011 to establish liability. See generally McCullough Report. Nearly half of 11 || the conduct Mr. McCullough identified took place during Dr. Williams’ benchmark period. 12 ||See id. Thus, based on Plaintiffs’ current evidence of conspiracy and anticompetitive acts 13 ||starting in 2011, Dr. Williams’ benchmark period, which is supposed to be “clean,” 14 || contains more than four years of anticompetitive misconduct. Dr. Williams’ 2005 to 2015 15 benchmark period, therefore, is not an approximation of a “clean period” under any 16 ||metric—neither the allegations in Plaintiffs’ complaints, their binding interrogatory 17 responses, nor the evidence they present to the Court on summary judgment supports the 18 || selection of 2005-2015 as a period reasonably “clean” of misconduct. 19 Dr. Williams’ methodological flaw in framing his benchmark period renders his 20 |/analysis irrelevant to Plaintiffs’ case. To be admissible, an expert report must be 21 ||“sufficiently tied to the facts of the case that it will aid the jury in resolving a factual 22 ||dispute.” Daubert, 509 U.S. at 591 (citation omitted); Mission Viejo Florist, Inc. v. 23 || Orchard Supply Co., LLC, 2019 WL 13045054, at *2 (C.D. Cal. Feb. 28, 2019) (“Courts 24 reject or exclude expert testimony that fails to connect damages calculations to the theory a 88 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||of liability”). Dr. Williams’ analysis is based on the assumption that there was no 2 ||conspiratorial conduct from 2011 to 2015, whereas all of the allegations and evidence 3 || before the Court suggests the opposite. Because his opinion on causation flows from this 4 || inapposite assumption, it is divorced from the reality of the case that Plaintiffs are actually 5 ||trying to prove, and thus is not sufficiently tied to Plaintiffs’ liability case to help the 6 || factfinder. 7 Dr. Williams provided no methodological justification grounded in econometrics for 8 ||choosing a benchmark period so significantly misaligned with the case that Plaintiffs are 9 || currently trying to prove. Reed Constr. Data Inc. v. McGraw-Hill Cos., Inc., 49 F. Supp. 10 ||3d 385, 400 (S.D.N.Y. 2014), aff'd, 638 F. App’x 43 (2d Cir. 2016) (“[T]o be admissible, 11 ||a regression analysis must examine an appropriate selection of data... some passably 12 || scientific analysis must undergird the selection of the frame of reference.”). In fact, in his 13 || opening expert report, Dr. Williams provided no explanation for why he selected 2005— 14 as the benchmark period. Williams Report § 50. At his deposition, Dr. Williams 15 stated that that he selected the benchmark period based on his “reading” of the complaint, 16 ||even though he apparently understood that Plaintiffs “alleg[ed] that there had been 17 || anticompetitive conduct in the benchmark period.” Williams Dep. at 219:24—220:5; 18 ||222:1-8; 228:14—229:16. In his rebuttal report, Dr. Williams argued that the evidence 19 ||shown to him supported the selection of 2015 as the start of the damages period, again with 20 ||no econometric justification of a benchmark period that is not “clean.” Williams Rebuttal 21 || Report □□ 40-41. Dr. Williams’ selective reading of the complaint is not a methodological 22 ||explanation grounded in econometrics that can cure his faulty selection of the benchmark 23 ||period. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert 24 || or the Federal Rules of Evidence requires a district court to admit opinion evidence that is 25 89 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 connected to existing data only by the ipse dixit of the expert”); McGlinchy v. Shell Chem. 2 845 F.2d 802, 807 (9th Cir. 1988) (upholding exclusion of conclusions in expert report 3 || with only “scant basis” in the record). 4 Accordingly, Dr. Williams’ selection of a benchmark period that contains four years 5 || of alleged anticompetitive misconduct, based on Plaintiffs’ post-discovery contentions and 6 evidence on summary judgment, renders his analysis fundamentally flawed and 7 ||methodologically unsound. The Court acknowledges that perfect lines demarcating 8 || benchmark periods and damages periods, such that all the misconduct falls neatly into the 9 || damages period (rendering the benchmark period perfectly clean), will rarely, if ever, exist; 10 econometric principles do not require such precision to pass scientific muster. While some 11 of inaccuracy is bound to exist, the selection of a benchmark period needs to be 12 || grounded in econometric principles and bear some logical relationship to the evidence in 13 ||the case. Where the selection of the benchmark period is neither grounded in econometric 14 ||principles nor the record, all of the econometric assumptions that flow from the 15 |/identification of a “clean” period are rendered unsound. If the “clean” period contains 16 || years of allegedly anticompetitive conduct, the idea that prices in the “clean” benchmark 17 period can be fairly traced to variables impacting price, and not the anticompetitive 18 || conduct, falls apart. When the fundamental principles that a methodology is based on are 19 || disregarded in this way, it is not “shaky but admissible evidence” with conclusions that 20 should be tested by cross-examination. Rather, the underlying methodology is so flawed 21 the analysis is rendered unreliable and cannot be cured by the adversarial process at 22 23 Plaintiffs raise various arguments in opposition to Defendants’ motion to exclude 24 ||Dr. Williams’ report. First, Plaintiffs argue that the error in Dr. Williams’ methodology 25 90 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||can be remedied by an assumption that any such error would only make the damages figure 2 ||more conservative. Dkt. 698 (“Daubert Opposition”) at 19. Dr. Williams similarly 3 || surmised at his deposition that a benchmark period containing some misconduct does not 4 ||invalidate the regression model but merely renders the damages analysis more 5 |lconservative. Williams Dep. at 217:6-22. This theory, however, was not tested by 6 ||Dr. Williams despite his acknowledgment that “[w]hether or not an alternative benchmark 7 ||period would increase or decrease damages is an empirical question.” Id. at 216:24— 8 217:5.4 9 Plaintiffs argue that a few district courts have admitted flawed regression models 10 ||based on the assumption that a tainted benchmark period would only result in an 11 underestimation of damages, but the cases they point to do not stand for that proposition. 12 || Daubert Opposition at 15, 19-20; Dkt. 809 at 18-21; Packaged Seafood, 332 F.R.D. 308; 13 ||In re Linerboard Antitrust Litig., 497 F. Supp. 2d 666, 675, 683-84 (E.D. Pa. 2007). These 14 || cases do not hold that benchmark periods divorced from econometric principles and record 15 evidence can be cured by an assumption that tainted benchmark periods render damages 16 || figures more conservative. Rather, these cases emphasize that benchmark periods need to 17 || be supported by econometric principles and record evidence to be sound under Daubert. 18 || Packaged Seafood, 332 F.R.D. at 326 (selection of time periods based on “analysis of the 19 —C~—tt——T.. KX’ 21 *4 The Court notes that Dr. Janus Ordover, Defendants’ damages expert, submitted rebuttal 09 evidence that when 201 1-2014 is moved out of the benchmark period and into the damages period, damages drop from $15 billion to negative $11.1 billion. Dkt. 605, Ex. C (“Ordover Report”) 4 317; Dkt. 23 617, J. Ordover Declaration § 7 & Fig. 1. The Court does not credit Dr. Ordover’s opinion or analysis over Dr. Williams’. Rather, Dr. Ordover’s findings merely counsel against overlooking the fundamental 24 || unreliability of Dr. Williams’ methodology based on an untested assumption. 25 91 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 || record evidence in the case”); Linerboard, 497 F. Supp. 2d at 683-84 (expert identified “a 2 more competitive period, presumably free of unlawful conduct”) (citation omitted). Those 3 || courts noted that some anticompetitive conduct in the benchmark periods would only make 4 || the estimates more conservative, but only after finding that the experts selected reasonable 5 || benchmark periods based on econometric principles and the evidence in the case. See id. 6 || Here, as discussed above, Dr. Williams did not provide an explanation for his selection of 7 ||the benchmark period and acknowledged that it contradicts Plaintiffs’ conspiracy case. 8 || Thus, there are fundamental unreliability and irrelevance issues here that were not at issue 9 Packaged Seafood and Linerboard. The flaws in Dr. Williams’ analysis cannot be cured 10 || by the assumption Plaintiffs urge. 11 Plaintiffs also argue that a conspiracy beginning in 2015 fits the facts of the case 12 || because the statute of limitations precluded Plaintiffs from seeking damages prior to June 13 2014. Daubert Opposition at 11-12. In the Court’s prior order partially granting 14 || Defendants’ motion to dismiss, the Court ruled that Plaintiffs could not seek damages prior 15 June 21, 2014. See Bartlett, Dkt. 108 at 3—7. Plaintiffs argue that Dr. Williams’ damages 16 || period, therefore, had to “coincide with the Court’s ruling defining the damages period,” 17 || and thus is consistent with their case. Daubert Opposition at 12. The fact that Plaintiffs 18 || were foreclosed from collecting damages for the years 2011—2014 does not render those 19 years conspiracy free, especially when Plaintiffs seek to prove that Defendants operated a 20 || conspiracy during those years. Accordingly, the statute of limitations may impact available 21 ||damages, but it does not excuse an expert from following econometric principles, and it 22 cannot erase the voluminous evidence Plaintiffs have placed before the Court to establish 23 ||a conspiracy beginning in 2012, at the latest. 24 a 92 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 Finally, at oral argument, Plaintiffs contended that even though the alleged 2 ||conspiracy was in effect starting in 2011 or 2012, the conspiracy did not impact prices until 3 ||2015, when the conspiracy was at its most active. See Dkt. 809 at 27-39. While 4 || conspiracies theoretically might have delayed price impacts, the evidence before this Court 5 || does not support Plaintiffs’ eleventh-hour theory that the conspiracy had a four-year delay 6 ||in impact. First, Plaintiffs’ delayed-impact theory does not appear in their opposition to 7 ||summary judgment and is not reflected in the opinions of their experts. Second, even 8 attempting to interpret the record evidence to fit Plaintiffs’ delayed-impact theory, the 9 || conspiratorial conduct Plaintiffs identify is largely identical from 2011-2014 and 2015— 10 || present. As discussed in more detail at Section V.D supra, Plaintiffs point to particular 11 ||mechanisms that Defendants used to restrict supply, manipulate public facing gas prices, 12 |lexchange information, and protect one another from shortages. Plaintiffs’ evidence 13 demonstrates that these same mechanisms were being utilized in 2011 up through the end 14 || of the conspiracy period—in other words, Plaintiffs do not identify some behavioral change 15 the part of Defendants in 2015 that would explain why the exact same market behaviors 16 || would not have impacted prices in 2011 but somehow would have impacted prices in 2015. 17 || Third, Plaintiffs admit that the price fixing conduct they describe had rapid price impacts, 18 ||ranging from hours to, at most, months. See Dkt. 809 at 34-39 (admitting that efforts to 19 restrict supply and manipulate public facing gas prices would take hours to months to 20 ||impact gas prices). Based on the evidence in the record, there is no reasonable basis for a 21 to conclude that price fixing mechanisms beginning in 2011 and occurring across the 22 ||class period did not impact gas prices until 2015. Accordingly, this argument does not 23 ||render Dr. Williams’s regression model applicable to the facts of this case and his analysis 24 ||remains inadmissible. 25 93 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 2. Dr. Hanouna 2 Plaintiff Persian Gulf’s expert on damages is Dr. Paul Hanouna, who performed 3 ||dummy variable and forecasting regression analyses to determine the overcharges to 4 ||wholesale customers at the rack. See Dkt. 608, Ex. B (“Hanouna Report”). Because 5 || Plaintiffs argue in their opposition to summary judgment that his damages analysis also 6 ||evidences causation, the Court will examine the extent to which Dr. Hanouna offers a 7 ||causation opinion and whether such an opinion would admissible under Federal Rule of 8 || Evidence 702. 9 To begin his analysis, Dr. Hanouna identified the cost of Brent Crude Oil, one type 10 || of blended oil that is refined to make gas, as the primary factor impacting gas prices from 11 || January 1, 2003 to February 29, 2020. Jd. § 6.a. Based on the relationship between this 12 || single variable—the cost of Brent Crude Oil—and gas prices, Dr. Hanouna concluded that 13 || there were inflated gas prices in May and October of 2012, as well as the period of January 14 to March 2020, that could not be explained by the price of Brent Crude Oil and thus 15 || were caused by some other, unidentified variable. Id. § 6.a—6.b. 16 Based on the above, Dr. Hanouna defined the damages periods as those periods 17 || where he saw price spikes in May and October of 2012 and January 2015 to March 2020. 18 ||Id. §§ 6.b—6.c. He identified the benchmark period as being January 1, 2003 to February 19 || 29, 2020, excluding May and October of 2012 and January 2015 to March 2020. Id. § 25. 20 || Using the benchmark period, Dr. Hanouna predicted what prices would have been in the 21 ||damages periods if Brent Crude Oil had continued to predict gas prices. Id. □□ 6.a—6.c, 22 ||25. Based on the difference between predicted and actual prices during the damages 23 || periods, Dr. Hanouna determined that the total damages to wholesale purchasers of gas 24 a 94 26 15¢v1749-JO-AGS and 18cv1374-JO-AGS 27 1 jjequals $287,542,483 in May of 2012, $410,244,180 in October of 2012, and 2 ||$9,046,092,774 from January 1, 2015 to March 2020. Id. ¥ 6.c. 3 Although Plaintiffs argue on summary judgment that Dr. Hanouna’s opinions 4 || provide evidence of causation,* Dr. Hanouna expressly denied having any such opinion. 5 || At his deposition, Dr. Hanouna testified more than once that he did not have any opinion 6 the causes of inflated prices in the damages periods, and further, that the lack of 7 ||correlation between Brent Crude Oil and gas prices in the damages periods “[a]bsolutely” 8 || did not imply collusion. See Dkt. 608, Ex. D (““Hanouna Dep.”) at 48:23-49:1 61:14-23. 9 ||Dr. Hanouna also stated that he was not an expert in antitrust economics nor the gas 10 ||industry. Hanouna Dep. at 13:12—14:17; 36:3-8; 40:20—41:22; 95:12-24. Thus, he 11 ||testified that he was not offering any opinion on Plaintiffs’ theory of anticompetitive 12 || conduct but was solely calculating damages assuming Plaintiffs could prove the existence 13 ||of a conspiracy. Hanouna Dep. at 15:23—16:4; 44:9-20; 47:18-48:3; 61:14—23; Hanouna 14 Report §] 5-6. 15 As Dr. Hanouna disavows having an expert opinion on causation, the Court 16 || precludes Plaintiffs from offering his regression analysis for causation purposes. See, e.g., 17 || Mitchell v. Geo Grp. Inc., 2022 WL 874287, at *5 (D. Ariz. Mar. 24, 2022) (“when an 18 expert affirmatively repudiates or disavows an opinion expressed in the expert’s report, 19 || courts have not hesitated to conclude that the expert should be precluded from offering □□□□ 20 21 ——_—_—_—_- °° Plaintiffs themselves have made conflicting arguments regarding whether Dr. Hanouna is being 23 || offered on the issue of causation. On opposition to summary judgment, Plaintiffs point to Dr. Hanouna’s opinions as evidence of causation. Opposition at 55-56. Then, at oral argument, Plaintiffs stated that his 24 || opinion was being offered solely on the issue of damages and was not being offered to show causation. 25 See Dkt. 809 at 32 (stating that the “experts aren’t on a causation analysis.”). 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 |/opinion at trial”); Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 634 2 ||(E.D.N.C. 2008) (finding that where an expert denied having an opinion on an issue, he 3 || was not qualified under Rule 702 to offer an opinion on it); Devito v. Smithkline Beecham 4 || Corp., 2004 WL 3691343, *4 (N.D.N.Y. Nov. 29, 2004) (“if [the expert] has not formed 5 || the opinions which plaintiff is ascribing to him, necessarily he has no foundation, scientific 6 otherwise, for same”). Despite Plaintiffs’ arguments that Dr. Hanouna’s regression 7 ||analysis does provide information about causation, the Court finds that the expert 8 economist himself would know best the limits of his own study and expertise. His report 9 ||and his testimony clearly set forth those limits: his single-variable analysis provided no 10 ||information as to what caused the price spikes he identified. See Hanouna Dep. at 15:23— 11 || 16:4; 44:9-20; 47:18-48:3; 48:23-49:1; 61:14—23; Hanouna Report {{ 5—6. Moreover, 12 || Plaintiffs—who carry the burden to demonstrate the admissibility of Dr. Hanouna’s 13 || opinions—have not pointed to any evidence that Dr. Hanouna has the “scientific, technical, 14 or other specialized knowledge” to offer an opinion on causation. See Fed. R. Civ. P. 702. 15 || Therefore, the Court finds that Plaintiffs have not met their burden of establishing that 16 || Dr. Hanouna is qualified to do so under Rule 702. 17 Finally, Dr. Hanouna’s analysis is further inadmissible to prove what caused inflated 18 prices because his regression model suffers from the same flaws as Dr. Williams’ 19 ||regression analysis. Dr. Hanouna’s regression analysis also utilizes a benchmark period 20 Plaintiffs allege contains years of anticompetitive conduct. See supra Section VI.A.1; 21 ||Hanouna Report Jf 6.a—6.c, 25. Like Dr. Williams, he includes most of 2011—2015 (except 22 || for two months) in the benchmark period, despite the fact that Plaintiffs seek to prove that 23 ||Defendants conspired during that period. See id. Accordingly, for the same reasons 24 25 96 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||Dr. Williams’ analysis is inadmissible with respect to causation, the Court finds that 2 Hanouna’s analysis is inadmissible with respect to causation. 3 ||B. Whether the Remaining Evidence Creates a Genuine Dispute of Material Fact on 4 Causation 5 Because the Court has excluded Dr. Williams’ and Dr. Hanouna’s expert opinions 6 ||on causation,” the Court turns to whether Plaintiffs have otherwise provided evidence 7 || which creates a genuine dispute of material fact with respect to causation. Plaintiffs point 8 ||to the expert opinion of Mr. McCullough as evidence of causation and further argue that 9 || causation can inferred from the facts in the record regarding the conspiracy. 10 Causal antitrust injury is “an essential element of any remedy under the Sherman 11 || Act.” Catlin v. Wash. Energy Co., 791 F.2d 1343, 1347 (9th Cir. 1986) (citation omitted). 12 || While Plaintiffs need not rule out “all possible alternative sources of injury,” they must 13 ||show that the alleged anticompetitive conduct was “a material cause” of the injury. 14 || Dolphin Tours, Inc. v. Pacifico Creative Serv., Inc., 773 F.2d 1506, 1509 (9th Cir. 1985) 15 || (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 & n.9 (1969)). 16 || The trier of fact must be able to ascertain causal antitrust injury “without engaging in 17 ||speculation.” Jd. at 1510. Where a party fails “to proffer any evidence as to causation, 18 || they fail to raise a genuine issue of material fact, and . . . summary judgment against them 19 be granted.” Jn re Optical Disk Drive Antitrust Litig., 2017 WL 6451711, at *3 (N.D. 20 Dec. 18, 2017). 21 // 22 °° | 24 > Given the Court’s ruling, it does not consider whether Dr. Williams’ and Dr. Hanouna’s expert 5 opinions are admissible on the issue of damages. 99 26 15cev1749-JO-AGS and 18cv1374-JO-AGS 27 1 1. Mr. McCullough’s Report Does Not Create a Genuine Dispute on Causation 2 In order to evaluate Plaintiffs’ argument, the Court first examines the expert report 3 Plaintiffs’ liability expert, Robert McCullough. Mr. McCullough described his 4 ||assignment as offering opinions “on the structure of the California gasoline market, 5 ||whether it was susceptible to market manipulation, and whether and how market 6 ||manipulation did occur.” McCullough Report § 2. Mr. McCullough’s report is largely 7 || descriptive: he performed a review of documents produced in discovery and concluded, 8 ||among other things, that the California gas market is geographically isolated, highly 9 || concentrated, and inelastic, which makes it “susceptible to collusive activity.” See, e.g., 10 18-20. Mr. McCullough also reviewed Plaintiffs’ alleged plus factors and agreed 11 those plus factors, such as information exchanges, exchange agreements, and exports, 12 || were highly unusual and suggestive of market manipulation. See id. {§ 22-31. He did not, 13 || however, opine on the existence of a conspiracy nor whether Defendants’ anticompetitive 14 || conduct identified in his report had any particular impact on prices. 15 Plaintiffs argue that a genuine dispute of material fact on causation is created by 16 ||Mr. McCullough’s general conclusion that the record evidence suggests collusive activity 17 |}among Defendants, but this alone does not provide evidence of causation. See Opposition 18 55. Mr. McCullough’s report, like Dr. Hanouna’s, does not offer any opinions on 19 ||causation. See generally McCullough Report. While Mr. McCullough repeatedly stated 20 |/throughout his report and in his deposition that the gasoline market was susceptible to 21 ||““market manipulation,” he defined that concept more broadly than illegal conspiracy under 22 || antitrust laws and testified that he did not have an opinion about whether illegal price fixing 23 occurred. Defs. Ex. 8, McCullough Dep. at 23:12—24:13; 31:13-—23; 79:19-80:12; 24 ||92:4-21. a 98 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 Further, Mr. McCullough explicitly stated that he did not have an opinion on whether 2 || gasoline prices increased because of Defendants’ conduct. Jd. at 44:7—13; 83:17-84:7; 3 ||84:23-85:18; 196:14-21. This was, apparently, not for a lack of attempting to identify 4 |/causal evidence. Mr. McCullough testified that although his assignment included 5 || analyzing whether Defendants’ exchanges of purportedly confidential information caused 6 || higher gasoline prices in California, he “did not easily find an immediate impact. Much of 7 ||this information, though valuable and confidential, did not lead to a specific trading 8 ||decision.” Jd. at 83:17-84:7. Mr. McCullough’s opinions that the market was 9 || “susceptible” to manipulation, that Defendants and their traders “could” have manipulated 10 || prices, or that Defendants’ conduct is “suspicious” and “unusual” would not permit a 11 ||reasonable juror to infer causation. See McCullough Report. Thus, his opinions do not 12 ||create a genuine dispute of material fact as to causation.*” 13 2. The Remaining Record Evidence Does Not Create a Genuine Dispute on 14 Causation 15 Given that Mr. McCullough’s expert report does not go to causation, the Court 16 ||examines whether the facts in the record regarding conspiracy support an inference of 17 || causation. Because the Court has concluded above that the evidence does not support a 18 ||reasonable inference of the eight-Defendant conspiracy alleged by Plaintiffs, it will 19 ||consider only whether facts in the record create a triable issue of fact that a conspiracy 20 || between BP and Phillips 66 caused Plaintiffs to suffer antitrust injury. 21 22 23 °° °° °° © 24 57 Given the Court’s rulings in this order, it does not consider whether Mr. McCullough’s expert 25 opinion is admissible on the issue of liability. 90 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 Plaintiffs’ evidence must allow an inference, “without engaging in speculation,” that 2 alleged anticompetitive conduct was “a material cause” of the injury. Dolphin Tours, 3 || 773 F.2d at 1509-10; 2 Areeda & Hovenkamp, Antitrust Law § 338a, at 317 (2d ed. 2000) 4 || (plaintiff must show that “the antitrust violation contribute[d] significantly to [its] injury”) 5 || (interpreting Zenith, 395 U.S. 100). While courts have chosen to infer causation where a 6 conspiracy had in fact occurred or where evidence made a causal link plausible, those are 7 ||not the facts here. Cf Packaged Seafood., 332 F.R.D. at 322 (noting defendants had 8 || already entered criminal pleas admitting to the price fixing conduct). 9 The conspiracy evidence with respect to BP and Phillips 66 would not allow a 10 reasonable juror to infer that an agreement between them caused higher gas prices. See 11 ||supra Section V.D. There is no evidence that BP or Phillips 66 entered wash trades, 12 ||selectively reported trades, or issued false public statements. See id. The evidence with 13 || respect to these two Defendants consists almost entirely of information exchanges between 14 || their traders. See, e.g., Pltfs. Exs. 8, 48, 74, 83-84. Nevertheless, Plaintiffs have not 15 || pointed to evidence that BP’s or Phillips 66’s traders executed any trade based on the 16 || information the traders exchanged. Defs. Ex. 8, McCullough Dep. at 83:17—84:7 (“[m]uch 17 this information, though valuable and confidential, did not lead to a specific trading 18 || decision.”).~° 19 20 || 21 >8 Were a jury to attempt to infer causation from the trader exchanges between BP and Phillips 66, Jury p 22 they would necessarily have to devolve into speculation. Plaintiffs would have a jury infer that these traders did in fact enter trades based on the information exchanged and that those trades were then reported 23 ||to OPIS absent any evidence of same. This chain of inferences is especially tenuous given that OPIS reports an average price taken from the high and low trades in its survey. See Opposition at 47; J.A. 562— 24 || 76, Phillips Ex. 17 (OPIS pricing methodology). Accordingly, a juror would also have to infer that the trades executed and reported were the high or low trade at the time OPIS averaged the price information. 25 100 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 l Moreover, the causal link between these traders’ exchanges and any resulting supply 2 || restriction is absent from the record. The only evidence in the record suggests that BP and 3 Phillips 66 used the information exchanged to increase supply. J. Yomtoob Declaration 4 25 (information used to increase production); L. Lockhart Declaration {47 (same). 5 Neither do Plaintiffs submit evidence that BP’s and Phillips 66’s exchanges occurred in 6 || proximity to a supply restriction or reduction. Accordingly, a reasonable juror could not 7 || find causation based on the mere possibility that BP’s Phillips 66’s information exchanges 8 ||could have raised spot-market prices or reduced supply in the absence of any evidence 9 || supporting that possibility. Even assuming that a reasonable juror could infer that the 10 || foregoing could have caused higher gas prices, there is no evidence that would allow a jury 11 ||to determine whether BP’s and Phillips 66’s conduct was a material cause of Plaintiffs’ 12 |/injury. Therefore, in the absence of causal evidence, there is no genuine dispute of material 13 || fact on causation and Defendants’ motions for summary judgment should be granted. 14 Vil. STATE LAW CLAIMS 15 Because the Court has found that Defendants are entitled to summary judgment on 16 || Plaintiffs’ Sherman Act conspiracy claim, they are also entitled to summary judgment on 17 || Plaintiffs’ remaining state law claims under California’s Cartwright Act and California’s 18 || UCL based on the same allegations and evidence relevant to their Sherman Act claim. 19 “The analysis under California’s [Cartwright Act] mirrors the analysis under federal 20 ||law because the Cartwright Act...was modeled after the Sherman Act.” Cnty. of 21 || Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001). Plaintiffs’ UCL 22 |} 23 There is no evidence in the record of any of the foregoing, and a juror would have no evidence from which 24 || to determine that these exchanges had any impact on spot-market prices. 101 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27 1 ||claim is also derivative of their antitrust claims. See Dkt. 86 at 20; Clear Connection Corp. 2 Comcast Cable Commc'ns Mgmt., LLC, 2020 WL 6742889, at *8 (E.D. Cal. Nov. 17, 3 || 2020) (“The UCL’s ‘unlawful’ prong ‘borrows violations of other laws and treats them as 4 || unlawful practices that the [UCL] makes independently actionable.”) (quoting Cel-Tech 5 ||Comme’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999)); Chavez v. 6 || Whirlpool Corp., 93 Cal. App. 4th 363, 375 (2001) (“If the same conduct is alleged to be 7 an antitrust violation and an ‘unfair’ business act or practice for the same 8 ||reason...the determination that the conduct is not an unreasonable restraint of trade 9 || necessarily implies that the conduct is not ‘unfair’ toward consumers.”); see also Troyk v. 10 || Farmers Grp., Inc., 171 Cal. App. 4th 1305, 1350 (2009) (causation is an element of 11 standing to bring a UCL claim). Because the Cartwright Act mirrors the Sherman Act, the 12 ||claims rise and fall together. In addition, Plaintiffs’ UCL claim is based entirely on the 13 ||existence of a conspiracy that caused consumer losses, and Plaintiffs do not identify any 14 || other conduct as a basis for that claim. See Dkt. 76; Bartlett, Dkt. 44. Thus, the UCL claim 15 || also rises and falls with Plaintiffs’ Sherman Act claim. Because the Court grants summary 16 ||judgment for Defendants on Plaintiffs’ Sherman Act claim, it also grants summary 17 || judgment on Plaintiffs’ remaining state law claims. 18 Vill. CONCLUSION AND ORDER 19 For the reasons set out above, the Court GRANTS Defendants’ motions for summary 20 judgment [Dkts. 615, 619, 625 in Persian Gulf, 15cv1749-JO-AGS, and Dkts. 457, 461, 21 ||470 in Bartlett, 18cv1374-JO-AGS]. The Court also GRANTS IN PART Defendants’ 22 motion to exclude the expert testimony of Dr. Michael Williams and Dr. Paul Hanouna 23 || (Dkt. 616 in Persian Gulf, 15cv1749-JO-AGS, and Dkt. 458 in Bartlett, 18cv1374-JO- 24 || AGS] on the issue of causation. The remaining motions to exclude expert testimony [Dkts. 25 102 26 15ev1749-JO-AGS and 18cv1374-JO-AGS 27 1 622, 626 in Persian Gulf, 15cv1749-JO-AGS, and Dkts. 455, 464, 467 in Bartlett, 2 || 18cv1374-JO-AGS] are DISMISSED as moot. The Clerk of the Court is instructed to close 3 || Persian Gulf, 15cv1749-JO-AGS, Bartlett, 18cv1374-JO-AGS, and Rinaldi, 18cv1377- 4 || JO-AGS. 5 IT IS SO ORDERED. 6 C 7 Dated: September 30, 2022 g on. Jinsook Ohta United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 103 26 15cv1749-JO-AGS and 18cv1374-JO-AGS 27