Opinion
Civil No. 98-565 (JRT/RLE), Civil No. 99-1483 (JRT/RLE).
March 31, 2002.
Daniel E. Gustafson, HEINS MILLS OLSON, P.L.C., Minneapolis, MN., for plaintiffs.
John D. French, FAEGRE BENSON, Minneapolis, MN, for defendant Ag-Bag International Limited.
Craig Singer and Stephen Urbanczyk, WILLIAMS CONNOLLY, Washington D.C.;, Frank Berman, BERMAN LAW OFFICE, Minneapolis, MN.;, Steven M. Hunegs, HUNEGS, STONE, LENEAVE, KVAS THORNTON, P.A., Minneapolis, MN, for defendant Up North Plastics, Inc.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT
Plaintiffs S S Forage Equipment Company ("S S Forage") and Mr. and Mrs. Donald Steward (the "Stewards") bring these parallel antitrust actions, alleging that defendants Up North Plastics Inc. ("Up North") and Ag-Bag International Limited ("Ag-Bag") engaged in unlawful price-fixing and other anticompetitive activity in connection with the production and sale of silage bags. This matter is before the Court on defendants' consolidated motion for summary judgment in both cases. For the reasons that follow, the motion is denied.
BACKGROUND
Silage bags consist of flexible plastic, accordion folded bags used by farmers to store livestock feed or grain. Silage bags constitute an alternative to free standing silos or grain bins. They are produced in a variety of diameters, ranging from 8 to 12 feet and a variety of lengths ranging from 100 to 500 feet.
A. The Parties
Defendant Ag-Bag is a public company headquartered in Oregon. Ag-Bag manufactures and sells silage bagging machines, which farmers use to fill silage bags in the field. Ag-Bag also sells silage bags and other silage-related products that it purchases from others, but it does not manufacture the plastic. Ag-Bag offers the full range of silage services to farmers, selling silage bagging machines, bags, inoculants and other products necessary to implement a complete silage bagging system.
Ag-Bag sells its silage products through a network of company-employed Territorial Managers ("TMs") who are located at various points in the United States. The TMs sell Ag-Bag products to "dealers" who then re-sell the products to the ultimate end-users. Occasionally, TMs sell directly to end-users. According to Ag-Bag's own internal documents, it viewed Alberta-Ag Industries ("AAI"), a Canadian company, and Up North as its principal competitors in the silage bag market.
Defendant Up North is a privately owned plastics manufacturer located in Cottage Grove, Minnesota. Up North produces a variety of plastic products, including construction film, pallet covers and silage bags. It began making silage bags in 1990. In addition to manufacturing silage bags, Up North also sells its silage bags, primarily through independent "distributors" located in various states. The distributors in turn sell the bags to dealers or end-users. Up North had one employee, Roger Beers ("Beers"), who was responsible for selling Up North brand silage bags to its distributors. On occasion, Beers would sell Up North bags directly to dealers and end-users in areas where Up North did not have a distributor.
Poly-America is a plastics manufacturer in Grand Prairie, Texas. It is owned by Steven Ross, who also owns Up North. Unlike Up North, however, Poly-America does not manufacture or sell silage bags. It only makes the plastic that is used to make the silage bags in question.
Poly-America was also a named defendant in the action. However, pursuant to a Stipulation and Order dated August 1, 2001 [Docket No. 52] all claims against it were dismissed with prejudice.
B. The Ag-Bag and Up North Supply Agreement
Prior to 1992, Ag-Bag's principal silage bag supplier was Star Tex, a plastics manufacturer located in Minnesota. Star Tex was a competitor of Up North in the plastics industry. When Ag-Bag began having quality problems with Star Tex in 1991, Ag-Bag began looking for a new supplier.
In mid-November 1991, Ag-Bag's chairman, Larry Inman ("Inman"), and its president, Sohail Masood ("Masood"), contacted Steven Ross ("Ross") to discuss the possibility of obtaining a new supplier of plastic. The initial meeting was attended by Inman, Masood, Ross and Steven Kramer, the Sales Manager for Up North and Ag-Bag. At the meeting, the parties discussed whether Poly-America could supply Ag-Bag with silage bags according to Ag-Bag's specifications. Over the next month, the parties had further discussions and meetings, and they eventually agreed to a supply contract, which was executed on December 22, 1991. The agreement, however, was between Ag-Bag and Up North, not Poly-America.
Under the contract, Ag-Bag agreed to purchase all of its silage plastic from Up North for a period of ten years. Ag-Bag's cost would begin at 75 cents per pound — 20 cents per pound less than what it had been paying Star Tex. The parties also agreed that Up North would transfer its existing silage bag sales business to Ag-Bag in four years, provided Ag-Bag purchased a certain minimum quantity of plastic. Additionally, the contract contained a provision that, before the transfer, Up North would pay Ag-Bag a 20% commission on its net annual sales to customers other than Ag-Bag over 1.6 million pounds. The contract also contained a confidentiality clause. The contract was amended several times in the years following its execution. The key amendments were the elimination of the transfer provision, the reduction and eventual elimination of the commission provision, and the extension of the contract by two years.
Plaintiffs do not contend that the Up North/Ag-Bag supply agreement violates the antitrust laws. Rather, as discussed below, plaintiffs allege that after the Up North/Ag-Bag supply agreement was executed, defendants entered into separate agreements to fix prices and allocate customers for silage bags in the market.
C. This Litigation
This antitrust litigation began in 1996 when Michael Hunt, a former distributor for Up North, filed suit alleging that defendants conspired to monopolize and fix prices of silage bags in violation of section one of the Sherman Act, 15 U.S.C. § 1. Hunt v. Up North Plastics, Civ. No. 4-96-22 (D.Minn. JRT/RLE). Although Hunt filed his complaint as a putative class action, the Court never made a determination as to the propriety of class certification because in October 1997, Hunt filed for bankruptcy, thus staying all proceedings.
On January 30, 1998, while the Hunt stay was in effect, plaintiffs' counsel filed a new putative class action complaint on behalf of S S Forage. S S Forage Equip. Co., Inc. v. Up North Plastics et al., Civ. No. 98-565 (D.Minn. JRT/RLE). The complaint sought to represent the same class of silage bag purchasers as in the Hunt action. In April 1998, however, the principal owner and operator of S S Forage died. Shortly thereafter, S S Forage ceased its business operations but retained its interest in this litigation. S S Forage moved for class certification which the Court denied on March 13, 2000. Although the Court found that plaintiffs' class allegations satisfied the numerosity and commonality requirements of Rule 23(a), the Court concluded that plaintiff was an atypical and inadequate class representative under 23(a)(3) and (4). Nonetheless, S S Forage still continues with its individual claims.
Because the Court found that plaintiff was an inadequate class representative which independently disposed of plaintiff's motion for class certification, the Court did not reach the predominance and superiority requirements of Fed.R.Civ.P. 23(b)(3).
The Stewards commenced their action in September 1999. As with the Hunt and S S Forage cases before it, the complaint asserts substantively parallel allegations against the same defendants and also seeks to represent the same class of silage bag producers for the same class period. The operative allegation in the Steward complaint provides that:
[D]efendants agreed to fix, raise, maintain, and stabilize the price of silage bags purchased by plaintiffs and other class members, and to fix their respective sales quotas for silage bags in various regions of the United States. In addition, defendants discussed and agreed among themselves and with their co-conspirators to allocate customers, territories, and products.
Class Action Complaint at ¶ 17. In June 2001, defendants moved to transfer the Steward action to Oregon based on a forum selection clause contained in an Authorized Dealer Agreement between the Stewards and Ag-Bag. The Court denied defendants' motion, concluding that the balance of factors under 28 U.S.C. § 1404(a) weighed more heavily in favor of retaining the Steward action in Minnesota. Steward v. Up North Plastics, Inc., 177 F. Supp.2d 953, 959 (D.Minn. 2001). Shortly thereafter, defendants filed this consolidated motion for summary judgment.
The S S Forage complaint differs from the Steward in that it does not include a customer allocation claim. Class Action Complaint at ¶ 17.
ANALYSIS
Defendants argue that plaintiffs' antitrust claim fails as a matter of law on three separate and independent grounds. First, defendants claim that there is no evidence, direct or circumstantial, of any agreement between Ag-Bag and Up North to fix prices or to allocate customers. Second, defendants contend that Ag-Bag and Up North are in a vertical relationship with one another and therefore, any agreement between them, even if one could be proved, would be judged under the Rule of Reason. Finally, defendants claim that plaintiffs have not shown that they suffered any injury as a result of defendants' allegedly illegal conduct. The Court addresses each of these arguments in turn.
I. Was there an Agreement?
Section 1 of the Sherman Act provides that "[e]very contract, combination . . . or conspiracy, in restraint of trade or commerce among the several States . . . is declared to be illegal." 15 U.S.C. § 1. In order to prove a Section 1 case, plaintiffs must prove that: "1) there was an agreement among [Ag-Bag and Up North] in restraint of trade; 2) [plaintiffs] were injured as a direct and proximate result; and 3) [plaintiffs'] damages are capable of ascertainment and [are] not speculative." St. Louis Convention Visitors Comm'n v. National Football League, 154 F.3d 851, 861 (8th Cir. 1998).
In two cases, Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984), and Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986), the United States Supreme Court established the standard used to determine whether a plaintiff's evidence of a Section 1 violation survives summary judgment. In both cases, the Court recognized that the type of ambiguous conduct commonly identified by plaintiffs as evidence of collusive activity often actually reflects pro-competitive, unilateral conduct. Therefore, to avoid chilling businesspersons from engaging in lawful activities, the Court held that "antitrust law limits the range of permissible inferences from ambiguous evidence in a Section 1 case." Matsushita, 475 U.S. at 588. Thus, in order to state a Section 1 case and avoid summary judgment, plaintiffs must present evidence that "tends to exclude the possibility of independent action" by Ag-Bag and Up North. Monsanto, 465 U.S. at 768. In other words, conduct that is "as consistent with permissible [activity] as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Matsushita, 475 U.S. at 588.
The Eighth Circuit strictly applies the Monsanto/Matsushita standard in both horizontal and vertical price-fixing antitrust cases. Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, Inc., 203 F.3d 1028, 1032 (8th Cir. 2000) (en banc) ("We are among the majority of circuits to apply Monsanto and Matsushita broadly, and in both horizontal and vertical price fixing cases."); Corner Pocket of Sioux Falls, Inc. v. Video Lottery Tech., Inc., 123 F.3d 1107, 1109 (8th Cir. 1997); St. Louis Convention Visitors Comm'n, 154 F.3d at 861.
Defendants maintain that when plaintiffs' evidence is subjected to the rigorous scrutiny of the legal standards outlined above, it is apparent that neither plaintiffs' price-fixing claim nor the Stewards' customer allocation claim can survive summary judgment. According to defendants, every relevant witness who has been asked about the existence of a price-fixing and/or customer allocation agreement has either expressly denied an agreement or has denied having personal knowledge of any such agreement. Defendants further contend that plaintiffs' circumstantial evidence — the exchange of pricing information and defendants' attempt to keep their supply relationship confidential — is insufficient as a matter of law to avoid summary judgment because there are legitimate business reasons to explain defendants' conduct. Defendants claim that they exchanged pricing information for the legitimate purpose of verifying prices given by customers in search of a lower priced silage bag. Defendants also claim that they agreed to keep their relationship secret because Ag-Bag had previously criticized the quality of Up North silage bags and did not want its customers to know that Up North was now its plastic supplier. Defendants thus argue that plaintiffs' circumstantial evidence does not "tend to exclude" the possibility that the parties were acting independently or for legitimate business reasons, rather than to fix prices. Monsanto, 465 U.S. at 764.
In response, plaintiffs contend that the record before the Court contains both direct and circumstantial evidence that Ag-Bag and Up North formed a secret agreement to fix prices. This evidence includes: the deposition testimony of several company representatives, in particular the testimony of Sohail Masood, president of Ag-Bag, who testified that in December 1991, the parties agreed to share pricing information on their products in the market, that such exchanges would take place before the prices were released to others, and that the purpose for exchanging lists was to give Up North an opportunity to raise its prices to conform more closely to Ag-Bag prices; a January 6, 1992 letter in which Up North announced it was increasing its silage bag prices for the first time in eighteen months; defendants' efforts to keep their relationship and agreement confidential, including misleading customers about the true source of their plastic supplier, using an alias for Roger Beers, and other deposition testimony by representatives regarding the need to keep the relationship secret.
For instance, Beers recalls a conversation with Ross in April 1992 in which Ross reinforced the need to keep Up North's arrangement with Ag-Bag secret and that they needed to be careful how and what was discussed "because nobody needed to-to wind up in jail." Beers Depo. at 316.
Plaintiffs also claim that the record contains sufficient evidence of a secret agreement to allocate customers and products in the silage bag market. This evidence includes: Masood's testimony that such an agreement existed; a conversation between Beers and Masood in which the two discussed how the companies could avoid competition, after which Beers faxed Masood a list of Up North customers; a June 25, 1992 memo from Beers to Kramer in which Beers describes his efforts to encourage potential Up North customers to remain with Ag-Bag; a July 29, 1993 letter from Kramer to Inman explaining that Up North has done its best to stay away from Ag-Bag customers.
While the Court recognizes the high standard of proof that applies in cases involving antitrust allegations, in the Court's view, plaintiffs have presented sufficient evidence to withstand summary judgment. The direct evidence, consisting of Masood's testimony, coupled with the circumstantial evidence amassed by plaintiffs could support a jury finding that defendants entered and executed agreements to stabilize prices and allocate customers and products in the silage bag market. The 6-5 en banc decision in Potash does not dictate a different result. 203 F.3d 1028 (8th Cir. 2000). In that case, a certified class of potash buyers brought suit against a group of potash producers alleging that they had conspired to fix the price of potash between April 1987 and July 1994. Id. at 1031. The class based its price-fixing claim on a theory of conscious parallelism. Id. at 1032. The court initially noted that "evidence that a business consciously met the pricing of its competitors does not prove a violation of the antitrust laws," absent the existence of additional "plus" factors which might support an inference of conspiracy. Id. at 1032-33. To support such an inference, the class relied on three plus factors it claimed existed to sustain an inference of conspiracy: 1) interfirm communications between the producers; 2) producer's acts against self-interest; and 3) econometric models which purport to prove that the price of potash would have been substantially lower in the absence of collusion. Id. at 1033. The court rejected each of these factors, concluding that "the evidence underlying these assertions does not bear the weight the class places upon it." Id. With respect to the interfirm communications, the class evidence revealed communications including meetings at trade shows and conventions, price verification calls, and discussions regarding a Canadian potash export association. Id. As to the price verifications, the court gave this evidence little weight because "these contacts involved verification of prices the companies had already charged on particular sales." Id. Specifically, the court observed:
Although defendants emphasize that the testimony of Masood later changed, the Court believes that any inconsistencies in Masood's testimony is a matter for the jury to resolve, not this Court on a summary judgment motion.
The problem with [plaintiffs'] theory, as indicated, is that the price verification communications only concerned charges on particular completed sales, not future market prices. There is no evidence to support the inference that the verifications had an impact on price increases. To survive summary judgment, there must be evidence that the exchanges of information had an impact on pricing decisions. . . . There is no evidence here that price increases resulted from any price verification or any specific communication of any kind. Subsequent price verification evidence on particular sales cannot support a conspiracy for the setting of a broad market price on September 4, 1987.
* * * *
Common sense dictates that a conspiracy to fix a price would involve one company communicating with another company before the price quotation to the customer. Here, however, the class's evidence consists solely of communications to verify a price on a completed sale.
Id. at 1034 (italics in original). In this case, by contrast, plaintiffs have evidence that the defendants exchanged pricing information before prices went out to customers and allege that such exchanges had an impact on prices. In his deposition, Masood answered affirmatively when asked whether the arrangement between Ag-Bag and Up North was to send prices lists before prices were released to dealers and customers. Additionally, the January 1992 letter by Up North announcing that they were increasing prices further supports an inference that the price verifications did in fact have an impact on pricing.
The deposition testimony provides:
Q: Did the two companies agree to give each other e arly notice of what their prices were going to be?
A: There was some information to be traded back and forth.
Q: And this information was to be traded before the public at large was notified of it?
A: Yes.
Q: Was this pricing information?
A: Yes.
Q: Was the arrangement then that before Ag Bag released its prices to its dealers and customers and territorial managers it would first send a copy of the price list to Up North?
A: Yes.
Q: And Up North would do the same?
A: Yes.
Masood Depo. at 69-70.
Thus, for all the foregoing reasons, the Court finds that sufficient material issues of fact concerning whether an agreement to fix prices and allocate customers exists to preclude summary judgment. Defendants' motion to dismiss plaintiffs' antitrust allegations on this basis is thus denied.
II. Rule of Reason v. Per Se Illegality
The next question concerns whether the alleged unlawful agreements in this case are evaluated under the per se illegality or Rule of Reason test. In determining whether a restraint on trade unreasonably restricts competition, courts have traditionally used two different methods of analysis — the per se rule and the rule of reason:
"There are two complementary categories of antitrust analysis. In the first category are agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality — they are `illegal per se.' In the second category are agreements whose competitive effect can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed."
General Aviation, Inc. v. Garrett Corp., 43 F. Supp. 515, 518 (W.D.Mich. 1990) (quoting National Society of Professional Engineers v. United States, 435 U.S. 679, 692 (1978)). The general presumption favors a rule of reason analysis except in those cases where the alleged agreement is "`manifestly anticompetitive.'" Id. (quoting Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50 (1977). Clearly, naked price-fixing agreements among horizontal competitors are per se unlawful. United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940). Arrangements between horizontal competitors to allocate territories to minimize competition are also illegal per se. United States v. Topco Assocs., 405 U.S. 596, 608 (1972); Timken Roller Bearing Co v. United States, 341 U.S. 593 (1951). In the vertical context, the per se category is generally reserved for resale price maintenance agreements. Dr. Miles Med. Co. v. John D. Park Sons Co., 220 U.S. 373 (1911). Resale price maintenance is a form of vertical price fixing "by which a seller of goods attempts to set the price at which his buyer resells the goods to a second buyer." Ryko Mfg. Co. v. Eden Servs., 823 F.2d 1215, 1222 (8th Cir. 1987). The Supreme Court has held that such agreements are subject to a rule of per se illegality under section 1. GTE Sylvania, 433 U.S. at 51 n. 18. Vertical non-price restraints, including vertical agreements to allocate customers, are subject to the Rule of Reason. Id.
In their motion for summary judgment, defendants argue that Ag-Bag and Up North are in a vertical, not a horizontal, relationship and therefore any price-fixing or customer allocating agreement between them is subject to Rule of Reason analysis. This vertical relationship arises because Up North operates at multiple levels of distribution in the market. On the one hand, Up North is a manufacturer of plastic, and in that capacity it supplies Ag-Bag and other distributors with the silage bags it manufactures. This manufacturer-distributor relationship, defendants argue, is vertical by definition. But in addition to selling its silage bags to Ag-Bag and other distributors, Up North also acts as its own distributor, selling silage bags directly to dealers and end-users. In this sense, Up North directly competes with Ag-Bag for these customers. Consequently, defendants claim that Up North is a dual distributor for antitrust purposes, and therefore, the same rule of reason analysis applied in other dual distribution cases applies here. Ryko, 823 F.2d 1215 (8th Cir. 1987); Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1355-57 (9th Cir. 1982); General Aviation Inc. v. Garrett Corp., 743 F. Supp. 515, 519-20 (W. D. Mich. 1990).
Plaintiffs argue that defendants' attempt to characterize their relationship as vertical with Up North being a dual distributor and Ag-Bag being one of Up North's best customers is inaccurate and misleading. Plaintiffs emphasize that although there may be vertical aspects to the supply relationship for silage plastic, there is no supply relationship between Up North and Ag-Bag for silage bags. According to plaintiffs, defendants ignore the fact that once Ag-Bag receives the rolls of silage plastic from Up North, Ag-Bag converts the plastic into an output silage bag using specialized equipment and proprietary folding techniques. Thus, although Ag-Bag receives the raw materials from Up North-silage plastic-Ag-Bag nonetheless produces an Ag-Bag silage bag, not an Up North silage bag.
Plaintiffs also challenge defendants' dual distribution theory on the basis that Ag-Bag never outwardly considered itself a mere distributor of Up North silage bags. According to its own SEC filings, Ag-Bag describes itself as "the industry leader, both nationally and internationally, in the manufacture and sale of sealed feed storage farm bagging equipment and disposable plastic storage bags for the storage and handling of high-moisture feed known as silage." Ag-Bag 1990 Form 10-K (emphasis added). Ag-Bag's Form 10-K for 1998 also provides:
The Ag Bag Tri-Dura REGISTERED TRADEMARK — disposable plastic storage bags . . . are made of extruded plastic. Rolls of plastic are manufactured to the Company's specifications. The Company then converts the various bag lengths and folding the bags for use of the Company's bagging machines.
Ag-Bag 1998 Form 10-K at 4. The same document notes that "Ag-Bag is the only company which manufactures the full line of equipment, bags, and other accessories for sealed feed farm management." Id. at 7 (emphasis added).
Thus, in plaintiffs' view, the answer to this question is very simple: Ag-Bag and Up North are, in all respects, horizontal competitors in the manufacture and distribution of silage bags and therefore, the alleged price fixing and customer allocation agreements between them are subject to the per se test. General Aviation, 743 F. Supp. at 519 (explaining that "horizontal conspiracies involve agreements among competitors at the same level of competition to restrain trade, such as agreements among manufacturers to fix prices for a given product and geographic market, or among distributors to fix prices for a given market").
Upon consideration of the parties' arguments, the Court finds that genuine issues of material fact remain as to whether the alleged agreements in this case are to be considered horizontal (and thus subject to the per se rule) or vertical (subject to the rule of reason). There is a sufficient question whether Up North and Ag-Bag are manufacturing two different finished products to ultimate end users. As plaintiffs emphasize, although Ag-Bag obtains silage plastic through its supply agreement with Up North, Ag-Bag then converts the rolls of plastic into its own Ag-Bag silage bags, thus arguably manufacturing a different product than Up North. The dual distribution cases relied on by defendants all involve instances where a manufacturer of a finished product provides it to a distributor and also sells that product itself. Ryko Mfg. Co., 823 F.2d at 1218 (manufacturer of automatic car-wash equipment sells its product through network of distributors and by direct sales itself); General Aviation, 743 F. Supp. at 519-20; Electronics Communications Corp. v. Toshiba Am. Consumer Prods., 129 F.3d 240, 241 (2d Cir. 1997) (Audiovox sold Toshiba-manufactured phones").
The cases in which the downstream firm performs some manufacturing functions also seem distinguishable from the case at bar. Krehl, 664 F.2d at 1350; In re Coca Cola, 91 F.T.C. 517, 607-09 (1978), rev'd on other grounds, 642 F.2d 1387 (D.C. Cir. 1981). In both Krehl and Coca Cola, the downstream firm's manufacturing was strictly controlled by the upstream firm. For instance, the downstream firms manufactured Coke and Baskin Robbins trademarked products using specific formulas and followed strict instructions of the upstream firm. See e.g., Krehl, 664 F.2d at 1350 (explaining that area franchisors manufacture Baskin Robbins ice cream products according to dual distributor's secret formulae and processes). In this case, by contrast, plaintiffs contend that Ag-Bag utilizes patented proprietary folding techniques and equipment to manufacture its silage bags once it receives the silage plastic from Up North and, in turn, sells the bag as Ag-Bag silage bags not Up North silage bags. Thus, for all the foregoing reasons, the Court finds that it cannot conclusively determine at this time what test applies to the agreements in question.
III. Actual Injury to Plaintiffs
Finally, the Court rejects defendants third argument that plaintiffs have failed to show that they suffered any cognizable injury as a result of the alleged unlawful conspiracy. Plaintiffs have presented the expert report of Dr. Solow, which the Court finds is sufficient to at least create an issue of fact concerning injury and damages suffered by plaintiffs as a result of the alleged conspiracy.
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that defendants' Joint Motion for Summary Judgment [Docket No. 311 (98-565) and No. 53 (99-1483)] is DENIED.