Pat CASON-MERENDA and Jeffrey A. Suhre, on behalf of themselves and others similarly situated, Plaintiffs, v. DETROIT MEDICAL CENTER, Henry Ford Health System, Mount Clemens General Hospital, Inc., St. John Health, Oakwood Healthcare Inc., Bon Secours Cottage Health Services, William Beaumont Hospital, and Trinity Health Corp., Defendants, 862 F. Supp. 2d 603

OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS FOR

SUMMARY JUDGMENT GERALD E. ROSEN, Chief Judge. I. INTRODUCTION In this case, the Plaintiff registered nurses (“RNs”), Pat Cason-Merenda and Jeffrey A. Suhre, seek to recover on behalf of themselves and a class of RNs against eight Detroit-area hospitals, alleging that the Defendant health care providers have violated § 1 of the federal Sherman Act, 15 U.S.C. § 1, by (

i) conspiring among themselves and with other local hospitals to hold down the wages of RNs employed by these institutions, and (ii) exchanging compensation-related information among themselves in a manner that has reduced competition among Detroit-area hospitals in the wages paid to RNs. This Court’s subject matter jurisdiction rests upon Plaintiffs’ assertion of claims arising under federal law. See 28 U.S.C. § 1331. Through the motions presently before the Court, the five remaining Defendants seek awards of

summary judgment in their favor on each of Plaintiffs’ claims against them. In separate motions brought by Defendant Detroit Medical Center and the four other Defendant hospitals — specifically, Defendants Henry Ford Health System, Mount Clemens General Hospital, Inc., William Beaumont Hospital, and Trinity Health Corp. — Defendants argue that Plaintiffs have failed to produce either direct or circumstantial evidence of any agreement among Detroit-area hospitals to fix RN compensation, and that the evidence, to the contrary, reflects independent decisionmaking by each of the Defendant health care institutions.

The five moving Defendants further contend that the record fails to establish any anticompetitive effects resulting from the exchange of compensation-related information among Detroit-area hospitals. These two

summary judgment motions have been fully and thoroughly briefed by the parties. In addition, the Court held an August 11, 2011 hearing on these motions, at which counsel offered extensive and skillful argument in support of their respective positions. Having reviewed the parties’ briefs and the accompanying, voluminous record, and having carefully considered the arguments of counsel at the August 11 hearing, the Court now is prepared to rule on Defendants’ motions for

summary judgment. This opinion and order sets forth the Court’s rulings on these motions. II. FACTUAL AND PROCEDURAL BACKGROUND According to Plaintiffs’ third corrected class action complaint, Plaintiff Pat Cason-Merenda is a registered nurse (“RN”) who has been employed by the Defendant Detroit Medical Center (“DMC”) since November of 2002. During this same time frame, Plaintiff Jeffrey A. Suhre has worked as an RN at Providence Hospital, a health care facility owned and operated by Defendant St. John Health.

In their complaint, Plaintiffs allege that the eight Defendant hospitals, along with other hospitals in the Detroit metropolitan area, have conspired among themselves to depress the level of compensation paid to their RN workforces, and that they have implemented a scheme of exchanging compensation-related information that has reduced competition among Detroit-area hospitals in the compensation of their RN employees.

In bringing these claims under federal antitrust law, Plaintiffs seek to represent a class of individuals who were employed as RNs by any of the Defendant hospitals at any time from December 12, 2002 through the present. A.

The Exchange of Compensation-Related Information Among the Defendant Hospitals Although Plaintiffs have accused the Defendant hospitals of committing two distinct violations of federal antitrust law, these two theories of recovery rest upon a common factual predicate — namely, that Defendants have routinely engaged in substantial exchanges of information about how they compensate their RN workforces. Accordingly, the Court finds it appropriate to recount in considerable detail the evidence in the record reflecting these exchanges of wage-related information.

In particular, Plaintiffs have identified three principal mechanisms through which this information has been shared among Detroit-area hospitals: (

i) direct contacts between employees of the various hospitals who were involved in the process of determining RN compensation at their respective institutions; (ii) health care industry organizations and meetings that addressed nursing issues, including compensation; and (iii) third-party surveys of RN compensation sponsored by the Defendant hospitals. The Court reviews each of these mechanisms in turn. 1.

Direct Exchanges of Wage-Related Information Among Employees of Detroit-Area Hospitals The record reveals that it was not uncommon — particularly in the early days of the relevant time period from December of 2002 forward — for an employee of one of the Defendant hospitals to contact his or her counterpart at another Detroit-area hospital and obtain information relating to the compensation of RNs.

Indeed, as Plaintiffs observe, each of the Defendant hospitals has acknowledged in the course of this litigation that its employees communicated with employees of other hospitals during the pertinent time period regarding RN compensation. (See Plaintiffs’ Consolidated Response Br. at 14 (citing Defendants’ answers and interrogatory responses).) As detailed below, these direct contacts took a variety of forms.

First, from 1989 until October of 2003, Thomas Dabrowski of Defendant William Beaumont Hospital conducted quarterly surveys of the compensation paid to nurses and other employees at a number of Detroit-area hospitals. (See Plaintiffs’ Response, Ex. 12, compilation of survey results for October 2002, January 2003, April 2003, and July 2003.) Each of the Defendant hospitals other than Bon Secours participated in at least one of these surveys.

The participant hospitals then were provided with aggregated survey results, which disclosed, among other information, the average minimum and maximum pay ranges and actual pay rates for a number of positions. As Plaintiffs observe, the information provided by the participant hospitals typically reflected current (as opposed to historical) pay rates and ranges, (see, e.g., Plaintiffs’ Response, Exs. 13, 30), and on at least one occasion, one of the survey participants, Defendant Trinity, disclosed its plan for a future merit increase, (see Plaintiffs’ Response, Ex. 14).

In addition to these regular Beaumont surveys, the Defendant hospitals requested and provided RN compensation-related information on an ad hoc basis.

Plaintiffs have produced, for example, a number of documents exchanged among the Defendant hospitals in 2001 — before the commencement of the class period in December of 2002 — disclosing various aspects of their respective RN compensation packages. (See Plaintiffs’ Response, Ex. 5 (Henry Ford providing information to Bon Secours); Ex. 6 (summary of information obtained by Oakwood from a number of the Defendant hospitals); Ex. 7 (Oakwood providing nurse wage information to Trinity); Ex. 8 (Henry Ford disclosing information it obtained about retention bonus practices of several Defendant hospitals); Ex. 9 (Oakwood advising Beaumont of its practices regarding shift differential pay).) These ad hoc information exchanges continued into 2002, (see, e.g., Plaintiffs’ Response, Ex. 17 (February 2002 e-mail in which Trinity human resources employee states that she spoke to a Mount Clemens employee about nurse technician rates and “in exchange” obtained the latter hospital’s physician assistant rates); Ex. 21 (Beaumont responding in July 2002 to Oakwood request for information); Ex. 22 (March 2002 fax from Trinity to Oakwood providing a copy of Trinity’s “Salaried Employee Merit” policy); Ex. 26 (Henry Ford document dated May 2002 disclosing information learned in survey of signing bonuses paid by other Defendant hospitals); Ex. 27 (November 2002 chart summarizing information obtained by Henry Ford regarding other Defendant hospitals’ projected merit increases for 2003); Ex. 31 (Oakwood providing current wage information in mid-2002 in response to survey by Trinity)), and also extended into the post-December 2002 class period, (see, e.g., Plaintiffs’ Response, Ex. 15 (May 2003 e-mail exchange between DMC and St.

John employees disclosing nurse pay rates); Ex. 19 (September 2004 e-mail exchange between DMC and Beaumont employees disclosing the two hospitals’ most recent bedside nurse pay increases); Ex. 23 (April 2003 email from St. John employee reporting information obtained from Mount Clemens); Ex. 25 (December 2006 chart compiled by Mount Clemens consultant reporting signing bonuses and loan forgiveness programs offered by other Detroit-area hospitals); Ex. 28 (December 2006 response by Bon Secours employee to St.

John’s request for information regarding signing bonuses and loan forgiveness); Ex. 32 (May 2003 e-mail from St. John employee reporting information obtained from Beaumont regarding pay raises awarded earlier that month and new RN pay ranges); Ex. 33 (July 2005 e-mail from DMC employee reporting call received from St. John employee disclosing St. John’s and Oakwood’s midnight shift premiums for RNs); Ex. 94 (March 2006 email correspondence indicating that St.

John’s personnel “check[ed] with our competition” to determine how a proposed pay increase compared with the increases given by Oakwood and Henry Ford); Ex. 102 (September 2004 Beaumont report of survey of other Detroit-area hospitals regarding recent pay increases for bedside nurses)).

More generally, the record discloses that Defendants’ human resources and compensation staff retained contact lists of their counterparts at other Detroit-area hospitals. (See Plaintiffs’ Response, Ex. 10A (June 2002 contact list maintained by Oakwood’s compensation department in order to survey “local competitors” as part of a “job evaluation process”); Ex. 10B (contact list maintained by St. John); Ex. 10C (June 2003 contact information maintained by DMC for use in conducting “local surveys”); Ex. 10D (June 2006 list of contacts used by DMC to obtain compensation-related information from Henry Ford); Ex.

JJ, Logan Dep. at 72-73 (testifying to a list of contacts maintained at Henry Ford prior to August of 2003).) The documentary record, as well as the deposition testimony of certain of these employees, reflects a widespread belief in the quid pro quo nature of these contacts — that is, an understanding that if one of the Defendant hospitals wished to obtain compensation-related information from other Detroit-area hospitals, the best way to achieve this result was to share its own information with these other institutions. (See, e.g., Plaintiffs’ Response, Ex. 10E (January 2006 memo from DMC’s director of compensation to her staff stating that “I am a big believer in networking and always find my compensation colleagues to be very generous in sharing information, and of course appreciate any information in return”); Ex. 16 (undated fax from Trinity human resources employee to her counterpart at Oakwood stating that “I’m returning your wage survey and hope you can help me out with one I’m conducting”); Ex. 20 (July 2003 e-mail from Oakwood’s chief nursing officer, Barbara Medvec, authorizing the disclosure of certain wage information to a St.

John’s hospital “if you can also get what they are currently at and/or considering”); Ex. D, Barcome Dep. at 83 (explaining that Trinity would participate in surveys even if it was not given the results, “[bjeeause then if we wanted to have that information, then more than likely they would share it with us”); Ex.

M, Dabrowski Dep. at 60-61 (testifying that he felt comfortable calling his counterparts at other hospitals when he had questions, and that they would likewise call him with their questions).) As aptly summarized by Jan Wiseman of Trinity’s corporate compensation department in a January 2007 e-mail, “I know that in the past, there have been many informal calls made between organizations and that information has been pretty freely shared.” (Plaintiffs’ Response, Ex. 35.) 2.

The Exchange of Wage-Related Information at Industry Meetings or Through Health Care Industry Organizations Plaintiffs next point to certain health care industry meetings and organizations as mechanisms through which the Defendant hospitals exchanged wage-related information. First, Plaintiffs cite working group meetings attended by the chief executive officers of some of the Defendant hospitals in 2004 through 2006. Yet, as Defendants point out, there is no evidence in the record that issues of nurse compensation were discussed at these meetings, or that compensation-related information was exchanged.

Nonetheless, other industry organizations, as well as contacts established through these organizations, evidently provided a means for disseminating wage-related information among employees of the Defendant hospitals. First, in late 2005, a “Health Care Roundtable” was formed as a subgroup of the Michigan Ontario Compensation Association (“MOCA”), an all-industry organization.

This group met quarterly and although its membership is not clear, all eight Defendant hospitals evidently received notice of its meetings. {See Plaintiffs’ Response, Ex. 38.) When members of the Health Care Roundtable were invited to propose topics for discussion at a scheduled meeting in January of 2006, Carolyn LeGault of Trinity’s corporate compensation group suggested that the group could address “market sensitive jobs, recruitment challenges and how current pay plans are affected by the external market and competition for a limited pool of candidates.” (Plaintiffs’ Response, Ex. 37.) In response, Eileen Vernor of DMC stated that she was “so glad those are issues you want to address, Carolyn, as those are issues for the DMC as well, but I did not think other health care systems would want to discuss their trade secrets!” (Id.) The minutes of the January 2006 meeting indicate that the attendees discussed “[mjarket [sensitive” positions, including RNs, and addressed the problem of “[bidding wars” that “inflate market rates” and cause employees to “go down [the] street for $.10/hr[.]” (Plaintiffs’ Response, Ex. 39.) Following this meeting, Amy Lumetta of Henry Ford sent an e-mail to MOCA’s then-president, Carol Breen, expressing an interest in “continuing the discussion from the last round table, but trying to focus a bit more on the pay practices, etc. vs. supply and demand concerns,” and suggesting that the results of a MOCA survey of Detroit-area hospitals’ pay practices for market sensitive jobs could be used “as a reference point in the discussion.” (Plaintiffs’ Response, Ex. 40.) The minutes of the Health Care Roundtable’s April 2006 meeting reflect that this survey was, in fact, a principal topic of discussion, with an outside presenter opining that health care institutions “always use[ ] compensationrelat[ed] solutions” to their RN shortages but urging them to “shift their thinking to break this cycle.” (Plaintiffs’ Response, Ex. 41.) Next, employees of the Defendant hospitals exchanged compensation-related information and discussed their pay practices at meetings of the Health Care Recruiters Association of Metropolitan Detroit (“HCRAMD”).

Frances Dombrowski of Beaumont — who served as vice president of the HCRAMD in 2006 and president in 2007 — testified that this organization helped its members to “understand the [nursing] market [and] what was happening with other organizations,” with one relevant aspect of this market being compensation. (Plaintiffs’ Response, Ex. N, Dombrowski Dep. at 33-34.) Ms.

Dombrowski was aware of discussions at the HCRAMD meetings regarding the pay practices of the member health care institutions, and she agreed that one of the benefits of membership in the organization was the opportunity to obtain this information from other members. (See id. at 54-56.) Likewise, Alicia Horvath of Bon Sec-ours — who served as vice president of the HCRAMD in 2002 and president in 2003— agreed that it was “typical” for members to share RN compensation information at meetings, and for members to discuss salary ranges, planned raises, and the timing of annual increases. (Plaintiffs’ Response, Ex.

AA, Horvath Dep. at 101-02, 110; see also Ex. XX, Stacey Dep. at 30-31 (Gloria Stacey of Mount Clemens testifying that information relating to nurse compensation was exchanged at HCRAMD meetings “[m]aybe a couple times a year”); Ex. 24 (sheet circulated by Ms.

Stacey at an HCRAMD meeting requesting information from other hospitals regarding the hiring bonuses paid to ICU nurses); Ex. 43 (minutes of January 2002 HCRAMD meeting reflecting that members shared details of their retention/sign-on bonuses).) Beyond their interactions at meetings, employees of the Defendant hospitals used their membership in the HCRAMD as a mechanism for obtaining compensation-related information from other hospitals. Ms.

Dombrowski of Beaumont testified that she received e-mails from other HCRAMD members sharing pay information. (See Dombrowski Dep. at 86-87.) In addition, Plaintiffs have produced a number of documents evidencing exchanges of compensation-related information among HCRAMD members. (See, e.g., Plaintiffs’ Response, Ex. 45A (August 2003 e-mail to members reporting disaggregated results — with each participating hospital identified by name — of survey of RN wages, along with dates of anticipated pay increases); Ex. 45B (August 2004 e-mail from Henry Ford seeking pay information for operating room nurses, with response from Mount Clemens providing the name and contact information for its nurse recruiter); Ex. 45C (October 2004 response by Henry Ford to member’s request for pay and other information for licensed practical nurses (“LPNs”)); Ex. 45D (June 2005 Oakwood document compiling information learned from HCRAMD members regarding scholarship and loan forgiveness programs for nurses); Ex. 45E (July 2005 e-mail from St.

John employee seeking (and receiving) information from HCRAMD members regarding midnight shift premiums); Ex. 45F (September 2005 Henry Ford e-mail reporting sign-on bonus and loan forgiveness information obtained from other HCRAMD members); Ex. 45G (December 2005 e-mail from St. John employee to other HCRAMD members summarizing information received from membership regarding new nurse graduate pay practices).) Finally, Plaintiffs point to the Southeast Michigan Healthcare Workforce Partners as a means though which human resources executives at the Defendant hospitals met and discussed compensation-related issues.

According to St. John’s senior vice president and chief worklife officer, Mary Naber, the members of this group pooled their money to hire a third party, Watson Wyatt, to “conduct a survey about the workforce labor shortage,” and the resulting survey report included nurse compensation data. (Plaintiffs’ Response, Ex. NN, Naber Dep. at 166-67, 175.) The group then met to discuss the survey data and to “plan[ ] tactics ... from the data.” (Id.) 3.

The Exchange of Wage-Related Information Through Third-Party Surveys The Defendant hospitals observe, and Plaintiffs acknowledge, that salary surveys conducted by third parties are commonly used in a wide range of industries, including health care, as a legitimate tool in establishing competitive wage rates. As the parties recognize, an August 1996 policy statement issued by the U.S.

Department of Justice and the Federal Trade Commission expressly addresses such surveys, explaining that these federal agencies “will not challenge, absent extraordinary circumstances, provider participation in written surveys of ... wages, salaries, or benefits of health care personnel,” so long as (

i) the survey in question is “managed by a third-party,” (ii) the “information provided by survey participants is based on data more than 3 months old,” (in) “there are at least five providers” participating in the survey, with no participant’s data “representing] more than 25 percent” of a given reported statistic, and (iv) the “information disseminated is sufficiently aggregated such that it would not allow recipients to identify the ... compensation paid by any particular provider.” DOJ/FTC Guidelines, Statement 6(

A) at 63. In Plaintiffs’ view, however, the record in the present case indicates that at least some of the third-party surveys sponsored or relied upon by the Defendant hospitals in determining their RN compensation have deviated in one or more respects from the criteria set forth in the DOJ/FTC Guidelines.

First, Plaintiffs have produced evidence that from January of 2001 to March of 2004, the results of various third-party surveys were reported to the sponsoring Defendant hospitals with unmasked, named hospital data, including wage rates and effective dates. (See Plaintiffs’ Response, Ex. 46 (compiling several third-party surveys sponsored by Defendants Henry Ford and St.

John, the results of which were reported to the sponsoring hospitals in disaggregated form and with the name of each participating hospital (and its data) expressly identified).) In addition, Oakwood’s former director of compensation, Rhonda Bunce, testified that she had received the results of nurse compensation surveys with individual hospitals explicitly identified. (See Plaintiffs’ Response, Ex.

J, Bunce Dep. at 82.) Similarly, Linda Budd of Budd & Associates — a one-person firm frequently used by the Defendant hospitals to conduct wage surveys — testified that she initially reported the results of surveys with the participating hospitals identified by name, but that she switched to code letters “after a few years.” (Plaintiffs’ Response, Ex. I, Budd Dep. at 34.) Plaintiffs also point to instances where a Defendant hospital was given a “key” that permitted it to identify the hospitals participating in a third-party survey. Ms.

Bunce of Oakwood, for example, testified that she had received keys that would enable her to identify the hospitals that had participated in third-party surveys sponsored by Oakwood. (See Bunce Dep. at 84-85.) In addition, the record includes evidence that Ms. Budd provided St. John with a key that would enable it to identify each hospital’s data as reported in a March 2004 survey, (see Plaintiffs’ Response, Ex. 48) , and that Ms. Budd once advised a Bon Secours employee that Oakwood was “Hospital L,” but that “[y]ou never heard that from me!,” (Plaintiffs’ Response, Ex. 49) .

Next, Plaintiffs point to several instances in which survey results were reported in disaggregated form, under circumstances that made it possible for the Defendant hospitals to “break the code” and determine which data corresponded to which hospital. At times, for example, Ms. Budd would provide updated survey results to a sponsoring hospital with a new participant identified by the next consecutive letter of the alphabet, making it easy to identify this new participant and its corresponding data. (See Plaintiffs’ Response, Ex. 50 (compiling examples of this practice in updated survey data provided by Ms.

Budd to the sponsoring hospital, Mount Clemens, in October of 2006).) In other instances, a Defendant hospital could be identified through characteristics unique to it but known to other hospitals— e.g., the time of year that a given hospital awarded pay increases, (see Plaintiffs’ Response, Exs. 51, 52, 56), or a reference to job titles that were unique to a particular institution, (see Plaintiffs’ Response, Exs. 53, 54). As stated by Ann Vano, St.

John’s former director of compensation, there were “many sources” from which she could determine which hospital corresponded to which letter code. (Plaintiffs’ Response, Ex. BBB, Vano Dep. at 77.) Moreover, while the DOJ/FTC Guidelines advocate the disclosure of only aggregated data, the results of third-party surveys often were reported to the Defendant hospitals in disaggregated form. Most notably, until some time in 2004, Ms.

Budd provided disaggregated data to all of the hospitals involved in her surveys, both sponsors and participants. (See Plaintiffs’ Response, Ex. 57; see also Budd Dep. at 154-55.) When sponsors began to complain that they were receiving the same data as participants, Ms. Budd ceased to supply the survey participants with disaggregated data, but continued to provide this data to the survey sponsors. (See Budd Dep. at 154-55; see also Plaintiffs’ Response, Ex. 122 (disaggregated data from August 2004 survey provided to sponsor Mount Clemens).) Even then, Ms.

Budd provided the disaggregated results of a November 2005 Oakwood-sponsored survey to Henry Ford, stating that she was “[ajlways happy to oblige [her] old ‘alma mater’ ” where she had worked before forming her own business. (Plaintiffs’ Response, Ex. 196; see also Ex. 200 (providing disaggregated results of November 2002 St. John-sponsored survey to nonparticipant Bon Secours as a “freebie,” with Ms.

Budd noting “don’t say I never gave you anything”).) Similarly, in 2004, Defendant Henry Ford sponsored a “Nursing Pay Policy Survey” in which the participants — including each of the eight Defendant hospitals — were asked to share a wide range of competitively sensitive information, including whether the participant targeted its RN base pay to a market percentile and, if so, what this percentile was. (See Plaintiffs’ Response, Ex. 74.) The results of this survey were reported in disaggregated form, albeit with the participating hospitals identified by letter codes rather than by name. (Id.) In addition, the results reported in Ms.

Budd’s surveys sometimes ran counter to the recommendation in the DOJ/FTC Guidelines that participant data should be more than three months old. (See Plaintiffs’ Response, Ex. 58 (compiling examples of survey data reported by Ms. Budd that were less than three months old).) At least on some occasions, it apparently was a matter of some importance that the survey data be as up-to-date as possible. As one example, Rachelle Hulett, DMC’s director of compensation programs, sent a March 25, 2002 e-mail to Ann Vano of St. John in connection with a critical jobs survey sponsored by St. John and conducted by Ms.

Budd, stating that “[a]s promised, we will report our 2002 ranges (effective April).” (Plaintiffs’ Response, Ex. 64.) In another instance, St. John requested in early March of 2004 that Ms. Budd conduct a “brief survey to see if the RN data reported in their December [2003] survey is already obsolete,” (Plaintiffs’ Response, Ex. 66), even though St. John had received this survey data just two months earlier, in January of 2004, (see Plaintiffs’ Response, Ex. 46E).

Indeed, Plaintiffs have identified several instances of the Defendant hospitals divulging information in third-party surveys as to their projected future pay increases, with the bulk of this data reported in a disaggregated format. (See Plaintiffs’ Response, Ex. 71 (compiling surveys conducted by Ms.

Budd each year between 2001 and 2005 of the participating hospitals’ planned pay increases for the coming year); Ex. 72 (report of similar survey conducted by MOCA Health Care Roundtable in 2006 to determine the participating hospitals’ planned 2007 pay increases, albeit with results reported in aggregated form).) Finally, Plaintiffs point to evidence that certain surveys were “third-party” in name only, with participant data routed through the sponsoring hospital on its way to the third party.

In June of 2003, for instance, DMC provided its average rates of pay for a number of positions directly to Oakwood for inclusion in a survey sponsored by the latter hospital, and Oakwood then forwarded this information to Ms. Budd so that it could be incorporated into the results of her “third-party” survey. (See Plaintiffs’ Response, Exs. 60, 61.) Again in January of 2004, Oakwood personnel gathered survey data directly from several other health care institutions and forwarded this information to Ms.

Budd, who combined this data with information received directly from other hospitals and distributed the results of this “third-party” survey to the participants. (See Plaintiffs’ Response, Ex. QQ, Perez Dep. at 40-41; Ex. 62.) More generally, the record discloses instances in which the sponsoring institutions were significantly involved in the design of surveys and the presentation of their results, which seemingly runs counter to the notion of a “third-party” survey. (See Plaintiffs’ Response, Ex. MM, Mutch Dep. at 92, 106-07 (Mount Clemens employee testifying that she instructed Ms.

Budd as to which categories of nurses to include in her survey and what types of information to gather); Ex. I, Budd Dep. at 183 (testifying that Henry Ford devised the questions to ask in a 2005 survey); Ex. 59 (compilation of e-mails sent by Oakwood and St. John employees to Ms. Budd between 2001 and 2003, specifying such details as the survey participants, the positions to be addressed in the survey, the specific information to be obtained regarding these positions, and the manner in which the results should be presented).) B.

The Role of Competitor Wage Information in Defendants’ Compensation Decisions Plaintiffs concede that there is “no smoking gun here,” (Plaintiffs’ Response Br. at 7) — i e., no direct evidence of an agreement among the Defendant hospitals to depress the wages of their RNs.

Likewise, nothing in the record explicitly contradicts the evidence presented by Defendants — principally in the form of declarations offered by high-ranking executives at each of the Defendant hospitals — that they looked to the wages paid by other hospitals as merely one of several factors used in establishing the rates of compensation for their RN workforces, and that each Defendant institution independently set its own RN compensation rates.

Nonetheless, Plaintiffs point to evidence that they view as illustrating each Defendant hospital’s significant — and, in Plaintiffs’ view, inappropriate — use of and reliance upon compensation-related information that it obtained directly from competitors, or that otherwise failed to comport with the “safety zone” criteria set forth in the DOJ/FTC Guidelines for the exchange of wage data among health care providers. The evidence pertaining to each Defendant hospital is summarized below, albeit with the three settling Defendants omitted from this review. 1.

Detroit Medical Center According to Robert Griswold, Jr., DMC’s director of compensation, his institution has a compensation policy of “try[ing] to approximate the median of the market, giving consideration to our budget constraints and ability to pay.” (Plaintiffs’ Response, Ex. V, Griswold 9/17/2008 Dep. at 26.) In order to implement this policy, DMC’s compensation team would “look at the survey data that we have to establish what the market is,” and arrive at a “market pricing” from which a recommendation would be forwarded to management. (Plaintiffs’ Response, Ex.

U, Griswold 4/10/2008 Dep. at 21; see also Ex. EE, Krueger Dep. at 26.) These market analyses were based in part upon two third-party surveys commissioned by DMC during and shortly before the class period— one conducted by Towers Perrin in 2001-02, and the second conducted by Sullivan Cotter in 2003. (See Defendants’ Motion, Ex.

L.1, Krueger Decl. at ¶ 7.) In addition, DMC participated in wage surveys conducted or sponsored by other hospitals— e.g., the surveys conducted by Beaumont between October 2002 and July 2003, (see Plaintiffs’ Response, Ex. 12), and the surveys conducted by Linda Budd, (see Plaintiffs’ Response, Ex.

V, Griswold Dep. at 47) — because this participation would enable DMC to “get a copy of the results for free.” (Id.) Yet, if no published survey data was available, DMC’s manager of compensation programs, Rachelle Hulett, testified that it was acceptable to directly contact the hospital’s competitors. (See Plaintiffs’ Response, Ex. BB, Hulett Dep. at 96-97.) As corroboration for this testimony, Plaintiffs point to specific occasions when such contacts occurred.

In August of 2006, for example, DMC’s then-director of compensation, Eileen Vernor, directed Thomasine Krueger of the compensation team to obtain wage information from DMC’s Detroit-area competitors. (See Plaintiffs’ Response, Ex.

EE, Krueger Dep. at 49.) Notably, Krueger refused to do so, stating her view that Vernor’s request was “outside the [antitrust] guidelines that we try to follow.” (Id. at 50.) Krueger testified that Vernor was “angry” with this refusal and instructed her to get another member of the compensation team to obtain the information, (id.), and Vernor ultimately contacted the other hospitals herself to secure the desired wage data, (see Plaintiffs’ Response, Ex. CCC, Vernor Dep. at 165; see also Ex. 157 (wage data obtained from Beaumont, Henry Ford, and St. John, including scheduled St.

John pay increase in September 2006)). Apart from this incident, Plaintiffs have produced evidence of other instances in which DMC employees — often at the instruction of their superiors — directly contacted competing hospitals to obtain wage-related information. (See Plaintiffs’ Response, Ex. 160 (February 2001 e-mail from Ruthann Liagre, DMC’s then-vice president of human resources, asking Ms. Krueger to make a “couple of quick phone calls to our closest competitors” to inquire about their certification bonuses); Ex. 162 (August 2003 e-mail from Ms.

Hulett stating that the “VPs are very interested in what other health care systems do for PDL [professional development ladder], in terms of how they pay (hours worked, benefit level, ladder level, etc.),” and asking Ms. Cracium to “do a call around to see what’s up”); Ex. 163 (Ms. Liagre conducting a “[q]uick and dirty” September 2003 survey of other health care systems’ projected or scheduled pay increases, and then reporting this information to DMC’s chief operating officer, Gwen MacKenzie); Ex. 164 (June 2006 e-mail from Ms.

Krueger reporting staff nurse pay rates obtained from “SUPER confidential” source at Henry Ford, apparently at the request of DMC’s director of human resources, Paulette Griffin).) Once the compensation team gathered this data, whether from surveys or through direct contacts, and formulated its “market pricing” recommendations, the recommendations and underlying “base rate information” were forwarded to DMC’s “executive leadership for decision-making by them.” (Plaintiffs’ Response, Ex. V, Griswold Dep. at 165.) As one example, the data obtained by Ms.

Vernor through her August 2006 contacts with other Defendant hospitals was forwarded to Deloris Hunt, DMC’s corporate vice president of human resources, and this information evidently was shared with DMC’s chief executive officer, Mike Duggan, at a meeting shortly thereafter. (See Plaintiffs’ Response, Ex. 165.) The wage rates for nurses at competitor hospitals also were provided to Michael Prusaitis, DMC’s director of patient care budget monitoring, for use in DMC’s budgeting process. (See Plaintiffs’ Response, Ex. CCC, Vernor Dep. at 172-74; Ex.

SS, Prusaitis Dep. at 13.) Plaintiffs view the record as revealing, at least in one instance, that this data gathered from other hospitals formed the basis for a lower merit pay increase than had been recommended. Specifically, they point to a December 2005 memo stating that DMC’s compensation department had recommended a 3 percent merit increase for 2006, but that only a 2 percent merit increase had been approved. (See Plaintiffs’ Response, Ex. 166.) When asked to identify the basis for this 2 percent merit increase, as opposed to the 3 percent increase advocated by the compensation department, Mr.

Duggan testified that “I would certainly not raise [employee] wages unnecessarily given the narrow margin that we’re always operating on to keep our hospitals open,” and he explained that “I try to raise in every specialty what is necessary to keep us competitive and keep our positions filled, and I try not to pay more than that because it jeopardizes the viability of our hospital system.” (Plaintiffs’ Response, Ex. O, Duggan Dep. at 53.) 2. Henry Ford Health System According to Robert G.

Riney, Henry Ford’s executive vice president and chief operating officer, Henry Ford has established “market targets” for each job title, and the market target for “market sensitive positions” — a category that includes RNs — is “the 66th percentile of the market.” (Defendants’ Motion, Ex. N, Riney Decl. at ¶ 11; see also Plaintiffs’ Response, Ex.

Y, Harland Dep. at 53, 55-56.) In assessing how the actual wage rates paid to Henry Ford employees compare to these market targets, and in determining more generally the salary structures and pay practices for RNs and other positions, a team of executives on the “Total Rewards Committee” relies in part on a “Competitive Pay Analysis” prepared each year by Henry Ford’s compensation department. (See Riney Decl. at ¶ 11.) In this Competitive Pay Analysis, the compensation department makes recommendations as to the percentage wage increases for market sensitive positions and all other positions. (See id. at ¶ 15; see also Plaintiffs’ Response, Ex. 117 (November 2002 Competitive Pay Analysis making recommendations for 2003).) In formulating its Competitive Pay Analysis each year, Henry Ford’s compensation department relied in part upon information it gathered or learned regarding local competitors’ pay rates and projected increases. (See Harland Dep. at 19; see also Plaintiffs’ Response, Ex.

PP, Parkinson-Tripp Dep. at 46, 109.) In the early days of the class period, there were occasions when employees in the compensation department would obtain this information by directly contacting their counterparts at other Detroit-area hospitals. (See Plaintiffs’ Response, Ex. 118 (November 2002 email stating that compensation department employee had been directed to “call around to local competitors to get a feel for what they are projecting”); Ex. 119 (report of information learned from other local hospitals regarding projected 2003 merit increases).) In 2003, however, the compensation department staff were reminded of the antitrust guidelines regarding exchanges of information among competitors, (see Plaintiffs’ Response, Ex.

KK, Lumetta Dep. at 33-34), and Henry Ford employees thereafter largely ceased to request compensation-related information directly from competitors, (but see Plaintiffs’ Response, Ex. 109 (September 2005 fax from human resources employee with chart of compensation data from other Detroit-area hospitals and names of contacts from whom this information evidently was obtained); Ex. 116 (minutes of July 2006 meeting indicating that Henry Ford’s chief nursing officer, Ronnie Hall, planned to “send[ ] someone to Oakwood to find out” this competitor’s contingent rate of pay for RNs).) Yet, despite this reminder, Henry Ford employees continued to provide wage-related information in response to direct inquiries from other hospitals. (See, e.g., Plaintiffs’ Response, Ex. 110 (Henry Ford providing St.

John with information regarding nurse wages and practices in January of 2006); Ex. Ill (March 2006 e-mail in which St.

John employee states that she “confirmed [pay increases] with HFH 2 weeks ago”); Ex. 113 (June 2006 e-mail from member of DMC compensation team reporting information received from “SUPER confidential” Henry Ford source regarding staff nurse pay range and recent change in pay scale).) Henry Ford also continued to both sponsor and participate in third-party surveys; with the results of these surveys occasionally reported to the hospital in a disaggregated format. (See, e.g., Plaintiffs’ Response, Ex. 71D (Henry Ford-sponsored survey conducted by Linda Budd in November 2003, reporting salary planning information in disaggregated form); Ex. 74 (results of 2004 “Nursing Pay Policy Survey” sponsored by Henry Ford, reported in disaggregated form); Ex. 196 (disaggregated results of November 2005 Oakwood-sponsored survey given to Henry Ford by Ms.

Budd, who stated that she was “[a]lways happy to oblige [her] old ‘alma mater’ ”).) Finally, in at least some years during the relevant period, Henry Ford sponsored third-party surveys of other Detroit-area hospitals’ planned salary increases for the coming year. (See Plaintiffs’ Response, Exs. 71D, 120 (survey conducted in late 2003 of projected increases for 2004); Ex. 121 (survey conducted in September of 2004 of projected increases for 2005).) Although Defendants claim that the “Competitive Pay Analysis” reports furnished by Henry Ford’s compensation department to the executive-level Total Rewards Committee presented the survey data “in highly aggregated form,” (Defendants’ Motion, Br. in Support at 7), Plaintiffs correctly observe that the December 2003 and October 2004 reports incorporated the disaggregated results of the two above-referenced salary planning surveys, albeit with the participant hospitals identified by letter codes rather than by name. (See Plaintiffs’ Response, Exs. 120, 121.) 3.

Mount Clemens General Hospital Mount Clemens is the only Defendant hospital with a unionized RN workforce. In preparation for its union negotiations, Mount Clemens commissioned third-party surveys of nurse wage-related information at other Detroit-area and Michigan hospitals. (See, e.g., Plaintiffs’ Response, Ex. 57B (February 2004 survey conducted by Linda Budd reporting detailed RN salary structure data in disaggregated form, but with hospitals identified by letter code rather than name); Ex. 122 (updated August 2004 survey conducted by Ms.

Budd due to prolonged union negotiations, with data again in disaggregated form and reporting some data that was only a month old).) Mount Clemens states without contradiction, however, that the data from these surveys were shared with the nurses’ bargaining team during negotiations, (see Defendants’ Motion, Ex. BB, Klinger Dep. at 189; Ex. CC, Horde Dep. at 71, 92), and, on some occasions, were shared directly with the RNs themselves, (see Horde Dep. at 92-94).

In addition, the compensation actually paid by Mount Clemens to its unionized RN workforce is disclosed in the collective bargaining agreements (“CBAs”) reached with the nurses’ union, copies of which are distributed to each union member.

Beyond this, Plaintiffs have identified an instance in March of 2006 when, in preparation for upcoming union negotiations, two of the hospital’s representatives in the negotiations — David Klinger, Mount Clemens’ then-vice president of human resources, and Priscilla Horde, a human resources consultant — obtained from an Oakwood employee a copy of an Oakwoodsponsored survey of RN pay. (See Plaintiffs’ Response, Ex. 123 (January 2006 survey of RN wages paid by local hospitals, reported in an aggregated format).) When these 2006 negotiations again extended through the year, Mount Clemens employees obtained the results of a more recent Oakwood-sponsored survey, (see Plaintiffs’ Response, Ex. 124 (August 2006 survey results provided to Mount Clemens)), and also initiated direct contact in November of 2006 with their counterparts at Beaumont, St.

John, and Trinity to obtain the specific wage rates for these hospitals, with this disaggregated, unmasked data then included in a packet given to Mount Clemens’ negotiating representatives, (see Plaintiffs’ Response, Ex. 125; see also Ex. CC, Klinger Dep. at 58-60, 83-84).

Finally, Plaintiffs note that on one occasion, a Mount Clemens human resources consultant, Gloria Stacey, obtained information from her counterparts at an HCRAMD meeting regarding the hiring bonuses paid to ICU nurses. (See Plaintiffs’ Response, Ex. 24 (undated sheet disclosing this information for various local hospitals).) As Defendants point out, however, there is no evidence that any of the information obtained by Mount Clemens through direct contacts with other hospitals had any impact on Mount Clemens’ negotiations with the RN union. 4.

William Beaumont Hospital Defendant Beaumont’s vice president of human resources, Ronald Lilek, has stated in an affidavit that Beaumont “established a minimum target for Inpatient, RN base wage paygrade maximum at between the 60th and 80th percentile, with a target of the 75th percentile, of the highest actual rate paid in the market.” (Defendants’ Motion, Ex.

S, Lilek Deck at ¶ 25.) _ In determining its base hourly rate for RNs and endeavoring to meet this target, Beaumont relied in part on survey data. (See id. at ¶¶ 21, 26.) As discussed earlier, until October of 2003, Beaumont obtained this survey data through its own quarterly surveys conducted by one of its employees, Tom Dabrowski, who directly requested compensation information from other Detroit-area hospitals, and all of the Defendant hospitals other than Bon Secours participated in one or more of these surveys. Thereafter, Beaumont switched to surveys conducted by a third party, Sullivan Cotter & Associates.

Even after Beaumont made this transition to third-party surveys, its employees continued to occasionally contact their counterparts at' other hospital for compensation-related information. In July of 2006, for example, Mr. Dabrowski sought and received information from DMC regarding its student loan programs for nurses and other positions. (See Plaintiffs’ Response, Ex. 101.) In September of 2004, Mr.

Dabrowski compiled a list of information he had obtained from other local hospitals regarding their most recent pay increases for bedside nurses. (See Plaintiffs’ Response, Ex. 102.) More generally, Beaumont’s director of compensation, David Misner, testified that he would permit direct contacts on occasions where “we were maybe looking to survey a singular job, and to go out and get a custom survey through a third party would have been expensive [and] very time consuming,” but he stated that, so far as he was aware, such contacts occurred only “on a sporadic basis.” (Plaintiffs’ Response, Ex.

LL, Misner Dep. at 141, 183.) In Plaintiffs’ view, the record discloses several instances in which Beaumont used information from the local market to award smaller wage increases or to reduce planned or requested increases in other forms of compensation.

In September of 2003 and again in May of 2005, Beaumont’s chief operating officer, Kenneth Matzick, determined that budgeted 2.5 percent wage increases for the hospital’s nurses should not be awarded, citing the recommendations of human resources personnel that “[b]ased upon a review of the recently completed nursing survey,” a smaller 2.0 percent increase was appropriate. (Plaintiffs’ Response, Exs. 104A, 104C.) Likewise, a pay increase that was “anticipated” for December of 2006 was cancelled, with Beaumont’s director of human resources, Lucy Vail, explaining that “pay is market-based” and that “[w]e led the market when the increases were given in the summer, resulting in pay as much as $2.00 over top of the market,” so that “there is no need to increase pay at this time.” (Plaintiffs’ Response, Ex. 99.) In addition, a length-of-service (“LOS”) increase was reduced by one percent in 2005, based on a “survey of six area hospitals indicating] that Beaumont[’]s LOS increases ha[ve] been inconsistent with what is occurring in the wage market.” (Plaintiffs’ Response, Ex. 105.) Finally, the results of a June 2005 ad hoc survey of local hospitals were cited as a basis for rejecting a requested increase in the then-current $3.00/hour on-call rate for the acute hemodialysis staff. (See Plaintiffs’ Response, Ex. 106; see also Ex. 103 (April 2003 recommendation, based on market data, that the on-call rate for cardiac cath lab staff be increased to $3.00/hour rather than the requested $4.00/hour, although the requested increase to $4.00/ hour was later granted in September 2004).) 5.

Trinity Health Corp. There are three Trinity hospitals involved in this case: (

i) St. Joseph Mercy Oakland in Pontiac, Michigan (“Trinity-Oakland”), (ii) St. Mary Mercy Hospital in Livonia (“Trinity-Livonia”), and (iii) the former St. Joseph Mercy Macomb in Clinton Township (“Trinity-Macomb”). Although these hospitals are affiliated with Trinity, each of them operates independently, and each has a separate nurse compensation structure with distinct rates of pay and no effort to coordinate with the other Trinity facilities. None of the three Defendant Trinity hospitals commissioned any third-party wage surveys during the class period.

However, Trinity’s corporate compensation group collected market wage data from a variety of sources, and used this information to prepare and disseminate market analyses to each of the three Trinity affiliates. Trinity’s corporate recommendation to these affiliates was to target their base pay to the 50th percentile of the market, and all three affiliates adopted this target.

In addition to the market analyses furnished by Trinity’s corporate compensation group, each of the three Trinity affiliates participated in and received the results of third-party surveys, such as Linda Budd’s surveys. (See, e.g., Plaintiffs’ Response, Ex. 128 (affiliates received disaggregated results of survey conducted by Ms. Budd in May 2003); Ex. 129 (affiliates received disaggregated results of survey conducted by Ms.

Budd in November 2003).) Plaintiffs also cite evidence of employees at the three Trinity affiliates initiating direct contacts with their counterparts at other Detroit-area hospitals to obtain wage-related information, although some of these contacts predate the June 2003 commencement of the class period applicable to Trinity.

As to Trinity-Livonia, for example, Plaintiffs point to the testimony of Judy Seybert, an employee in the hospital’s human resources department until February of 2003, who stated that she would request wage information from other Detroit-area hospitals when instructed by her supervisor to do so. (See Plaintiffs’ Response, Ex.

W, Seybert Dep. at 82-83; see also Ex. 139 (December 2001 request for wage information from Oakwood); Ex. 140 (September 2002 request for wage information from a number of hospitals, with response from Oakwood).) Similarly, Christine Barcome, a compensation analyst at Trinity-Oakland, testified that prior to the arrival of a new supervisor, Martha Murphy, in 2002 or 2003, she would contact competitor hospitals at management’s request to obtain market data for RN compensation. (See Plaintiffs’ Response, Ex.

D, Barcome Dep. at 15, 97-98, 108-09; see also Ex. 135 (September 2001 request to Oakwood); Ex. 136 (January 2003 request to Oakwood).) Next, Plaintiffs have produced evidence that Trinity-Macomb employees also made direct contacts with their counterparts at other Detroit-area hospitals to obtain compensation-related information. (See Plaintiffs’ Response, Ex. 131 (May 2004 request for information with response from St.

John); see also Ex. 130 (April 2005 e-mail from Trinity-Macomb’s then-vice president of human resources stating that he “may possibly be able to validate/nullify ... through some additional sources” the information obtained by his staff regarding cath-lab on-call rates paid at other hospitals).) The hospital’s administrative director of human resources, Lynn Urban, has testified that she considered it part of her duties to obtain wage range information from hospitals outside of the Trinity network. (See Plaintiffs’ Response, Ex. AAA, Urban Dep. at 38-39.) Ms.

Urban further testified that she occasionally used the RN wage range information she received through these direct contacts in analyzing whether Trinity-Macomb’s RN wages should be increased and the level to which they should be increased. (See id. at 38.) Finally, beyond the contacts she initiated, Ms. Urban responded to direct contacts from other hospitals seeking nurse wage information, (see Plaintiffs’ Response, Ex. 133 (February 2002 e-mail reflecting that Ms. Urban provided information effective January 2002 to a counterpart at St.

John)), and employees at the other two Trinity hospitals did likewise, (see Plaintiffs’ Response, Ex. 137 (Ms. Barcome of Trinity-0akland providing copy of documents from the hospital’s policy and procedure manual); Ex. 14 (Ms. Barcome responding to Beaumont October 2003 survey with current information and indication of planned merit increase in November); Ex. 102 (Ms. Barcome responding to September 2004 Beaumont survey); Ex. 141 (Ms. Seybert of Trinity-Livonia responding to August 2002 Beaumont survey)). III. ANALYSIS A.

The Standards Governing Defendants’ Motions Through the two motions addressed in the present opinion, each of the five remaining Defendants — Detroit Medical Center, Henry Ford Health System, Mount Clemens General Hospital, William Beaumont Hospital, and Trinity Health Corp. — seeks

summary judgment in its favor on each of Plaintiffs’ two claims brought under § 1 of the Sherman Act. Under the pertinent Federal Rule,

summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). As the Supreme Court has explained, “the plain language of Rule 56(

c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that partjfs case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a motion brought under Rule 56, the Court must view the evidence “in a light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.

Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir.2007). Yet, the non-moving party “may not rely merely on allegations or denials in its own pleading,” but “must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1). Finally, “[a] mere scintilla of evidence is insufficient” to withstand a

summary judgment motion; rather, “there must be evidence on which the jury could reasonably find for the non-moving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and citation omitted). As Plaintiffs point out, the Sixth Circuit recently observed that “[i]n this circuit, motions for

summary judgment are disfavored in antitrust litigation.” Smith Wholesale, 477 F.3d at 862. Yet, the court then emphasized: This general rule ... does not preclude the use of

summary judgment in an antitrust case in which there clearly are no genuine issues of fact to try — indeed, the very purpose of a motion for

summary judgment, to eliminate a trial where it would be unnecessary and merely result in delay and expense, warrants

summary disposition of such cases when appropriate. Accordingly, the absence of any relevant probative evidence in support of a litigant’s antitrust claims will expose such claims to

summary judgment disposition. 477 F.3d at 862 (internal quotation marks and citations omitted). Moreover, Defendants correctly note the willingness of both the Supreme Court and the Sixth Circuit to award or affirm

summary judgment in antitrust eases, so long as “there is no genuine issue for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (internal quotation marks and citation omitted); see also Smith Wholesale, 477 F.3d at 880-81; Wallace v. Bank of Bartlett, 55 F.3d 1166, 1170 (6th Cir.1995); Nurse Midwifery Associates v. Hibbett, 918 F.2d 605, 617 (6th Cir.1990). With these principles in mind, then, the Court turns to the challenges advanced in Defendants’ motions. B. Plaintiffs’ Per Se Claim of a Conspiracy to Depress RN Compensation 1. The Law Governing Per Se Claims Under § 1 of the Sherman Act

Section 1 of the Sherman Act prohibits “[ejvery contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. The Sixth Circuit has stated: [T]o establish a claim under

section 1, the plaintiff must establish that the defendants contracted, combined or conspired among each other, that the combination or conspiracy produced adverse, anti-competitive effects within relevant product and geographic markets, that the objects of and conduct pursuant to that contract or conspiracy were illegal and that the plaintiff was injured as a proximate result of that conspiracy. Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 342 (6th Cir.2006) (internal quotation marks and citations omitted).

Yet, if the challenged anticompetitive practice is deemed illegal per se, “further examination of the practice’s impact on the market or the procompetitive justifications for the practice is unnecessary for finding a violation of antitrust law.” Expert Masonry, 440 F.3d at 342 (internal quotation marks and citations omitted).

Rather, in the case of practices that are “proscribed per se, the plaintiff need only prove that (1) two or more entities engaged in a conspiracy, combination, or contract, (2) to effect a restraint or combination prohibited per se (wherein the anticompetitive effects within a relevant geographic and product market are implied), (3) that was the proximate cause of the plaintiffs antitrust injury.” 440 F.3d at 342 (citations omitted).

In Count I of their complaint, Plaintiffs allege that the Defendant hospitals “and their co-conspirators have engaged in a continuing conspiracy in restraint of trade to depress the compensation of RNs employed at hospitals in the Detroit [metropolitan area].” (Third Corrected Class Action Complaint at ¶ 51.) The parties agree that such a conspiracy among competing hospitals to fix wages, like an analogous horizontal price-fixing conspiracy, would be subject to per se treatment. See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001); Fleischman v.

Albany Medical Center, 728 F.Supp.2d 130, 157 (N.D.N.Y. 2010); see also DOJ/FTC Guidelines, Statement 6(

B) at 64 (“If an exchange among competing providers of ... cost information results in an agreement among competitors as to ... the wages to be paid to health care employees, that agreement will be considered unlawful per se.”).

Absent direct evidence of an explicit agreement among the Defendant hospitals to fix RN wages — which Plaintiffs acknowledge they have not produced — the requisite conspiracy may be established through circumstantial evidence of “business behavior which evidences a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.” Wallace, 55 F.3d at 1168 (internal quotation marks and citations omitted).

The Supreme Court has adopted what this Court previously characterized as a “fairly stringent” standard for assessing circumstantial evidence of an alleged conspiracy in violation of § 1. In re Northwest Airlines Corp., 208 F.R.D. 174, 195 (E.D.Mich.2002). In particular, the Supreme Court has emphasized: [AJntitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case. Thus, in Monsanto Co. v.

Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764, 104 S.Ct., at 1470. To survive a motion for

summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence “that tends to exclude the possibility” that the alleged conspirators acted independently. 465 U.S., at 764, 104 S.Ct., at 1471. [The plaintiffs] in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed [the plaintiffs]. Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57 (citations omitted).

The Court further cautioned that “mistaken inferences” in assessing the evidence of a claimed antitrust conspiracy “are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Matsushita, 475 U.S. at 594, 106 S.Ct. at 1360. In the wake of this Supreme Court precedent, the Sixth Circuit has adopted a “two-part inquiry for evaluating the propriety of

summary judgment in an antitrust conspiracy case.” Riverview Investments, Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 483 (6th Cir.1990) (internal quotation marks and citation omitted); see also In re Northwest Airlines, 208 F.R.D. at 195. First, the Court must determine whether Plaintiffs’ evidence of conspiracy is ambiguous — that is, whether it is “as consistent with the defendants’ permissible independent interests as with an illegal conspiracy.” Riverview Investments, 899 F.2d at 483 (internal quotation marks and citation omitted).

If so, the Court must inquire whether Plaintiffs have produced “evidence that tends to exclude the possibility that the defendants were pursuing these independent interests.”899 F.2d at 483 (internal quotation marks and citation omitted). “A plaintiff thus fails to demonstrate a conspiracy if, using ambiguous evidence, the inference of a conspiracy is less than or equal to an inference of independent action.” 899 F.2d at 483; see also In re Northwest Airlines, 208 F.R.D. at 195-96. 2.

There Is No Inflexible Requirement that Plaintiffs Must Produce Evidence of Parallel Conduct in Order to Establish a Conspiracy Through Circumstantial Evidence. As a threshold matter — and, indeed, as the principal argument Defendants have advanced against Plaintiffs’ per se claim in the brief in support of their combined

summary judgment motion — Defendants contend that Plaintiffs “cannot even get to first base” on their claim of a per se violation of § 1 without proof that the Defendant hospitals engaged in parallel conduct in their setting of RN wages. (Defendants’ Motion, Br. in Support at 22.) In Defendants’ view, the law is clear that “[w]here antitrust plaintiffs rely on circumstantial evidence to prove a

Section 1 conspiracy claim, they must first demonstrate that the defendants’ actions were parallel.” (Id. at 21 (quoting In re Beef Industry Antitrust Litigation, 907 F.2d 510, 514 (5th Cir.1990)).) Defendants suggest that Plaintiffs cannot make this threshold showing, citing a report and accompanying graph reflecting the opinion of their economic expert, Dr.

Daniel Rubinfeld, that the RN wages paid by the Defendant hospitals “were not similar and did not change in a parallel way.” (Defendants’ Motion, Br. in Support at 22-23.) As discussed below, however, while parallel conduct can serve as one form of circumstantial evidence of a § 1 conspiracy to fix prices or wages — and while the absence of parallel conduct might serve to undercut an inference of conspiracy that might otherwise arise from the evidentiary record— the Court does not read the pertinent ease law as mandating this particular form of proof in order to sustain a § 1 conspiracy claim.

There is no question that many (perhaps most) § 1 price-fixing claims rest in part upon allegations of parallel conduct.

See, e.g., Wallace, 55 F.3d at 1168 (plaintiffs attempted to establish § 1 claim by contending that the defendant banks “all charge essentially the same fee for NSF checks”); In re Flat Glass Antitrust Litigation, 385 F.3d 350, 354-55 (3d Cir.2004) (plaintiffs alleged that “[sjeveral times during the class period, [the defendant] flat glass producers raised their ‘list prices’ for flat glass by the same amount and within very close time frames”); In re Baby Food Antitrust Litigation, 166 F.3d 112, 122 (3d Cir.1999) (“In an effort to reinforce their claim of collusive pricing, plaintiffs presented the testimony of an expert for the purpose of showing a pattern of parallel price increases in each of the five baby food product categories throughout the certified time period.”); In re Beef Industry, 907 F.2d at 512 (plaintiff cattlemen alleged that the defendant meat packers “violated § 1 of the Sherman Act by using an information exchange ... and consciously parallel pricing to depress live cattle prices”).

This stands to reason because, in the absence of direct evidence of an agreement to fix prices, the most likely way that such an arrangement would manifest itself to outsiders — and potential plaintiffs — would be through parallel action that gives rise to a suspicion of unlawful coordination in restraint of trade. See In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896, 903 (6th Cir.2009) (observing that “[allegations of concerted action by competitors are frequently based on a pattern of uniform business conduct”).

Nonetheless, this Court is aware of no case law — nor have Defendants identified any — that mandates that a plaintiffs portfolio of circumstantial evidence in a § 1 case must include proof of parallel conduct. To the contrary, in Re/Max International, Inc. v. Realty One, Inc., 173 F.3d 995, 1009 (6th Cir.1999), the Sixth Circuit cited the defendants’ “uniformity] in their actions” as merely one of several “[important factors” a court should evaluate in determining whether a plaintiffs circumstantial evidence of antitrust conspiracy is sufficient to withstand

summary judgment. Similarly, Plaintiffs point to the decision in InterVest, Inc. v.

Bloomberg, L.P., 340 F.3d 144, 163-65 (3d Cir.2003), in which the court first addressed the plaintiffs attempt to establish a conspiracy “on the [b]asis of [c]ircumstantial [e]vidence,” and then, upon finding that this effort failed to produce evidence that would support a “reasonable inference!] of concerted action,” proceeded to ask as a separate matter whether the plaintiff had shown that the defendants “engaged in activity that approximates conscious parallelism.” Indeed, in another RN wage-fixing case presently pending in the Northern District of New York, the court expressly rejected the very same argument advanced by Defendants here, holding that the plaintiffs in that case “need not prove parallel pricing in order to prevail on [a] per-se claim based on circumstantial evidence.” Fleischman v.

Albany Medical Center, 728 F.Supp.2d 130, 158 (N.D.N.Y.2010). As succinctly stated by the court in that case, “[p]arallel pricing is merely one such form of circumstantial evidence” upon which a plaintiff may permissibly rely to establish concerted action in violation of § 1. Fleischman, 728 F.Supp.2d at 158 (internal quotation marks and citation omitted). The cases cited by Defendants are not to the contrary.

In the decision upon which they principally rely for their posited rigid requirement of parallel conduct, In re Beef Industry, Defendants quote only the language that aids their cause— ie., that a plaintiff in a § 1 conspiracy case “must first demonstrate that the defendants’ actions were parallel”- — -while notably omitting the language that immediately precedes it — namely, that this standard applies to plaintiffs who “rel[y] on circumstantial evidence of conscious parallelism to prove a § 1 claim.” In re Beef Industry, 907 F.2d at 514 (emphasis added).

As Plaintiffs aptly note, this “unsurprising statement” by the court is “frankly little more than a tautology — if your theory of the case is based upon parallel conduct then you must show parallel conduct!” (Plaintiffs’ Response Br. at 92.) Likewise, Defendants’ selective quotation from the decision in City of Moundridge v.

Exxon Mobil Corp., 429 F.Supp.2d 117, 132 (D.D.C.2006), notably truncates the court’s complete statement that a showing of parallel conduct is “the first element necessary in showing a conspiracy with conscious parallelism.” (Emphasis added.) In short, while evidence of parallel conduct provides one means by which a plaintiff in a § 1 case may make a circumstantial showing of concerted activity, the case law establishes no hierarchy of the sorts of circumstantial evidence a plaintiff must produce to withstand

summary judgment. Rather, circumstantial evidence of any sort will do, provided that it demonstrates “business behavior which evidences a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.” Wallace, 55 F.3d at 1168 (internal quotation marks and citations omitted). Accordingly, the Court rejects Defendants’ contention that Plaintiffs’ per se claim fails for lack of evidence of parallel conduct. 3. Plaintiffs’ Evidence in Support of Their Per Se Claim Fails to Give Rise to an Inference of Conspiracy Stronger Than the Inference of Independent Action.

Having disposed of Defendants’ threshold challenge based on the absence of evidence of parallel conduct, the Court now returns to the more general evidentiary standards by which Plaintiffs’ per se claim of conspiracy must be judged.

As noted earlier, the analysis of this claim is governed by the overarching requirement that Plaintiffs’ evidence must “reasonably tend[] to prove that [Defendants] had a conscious commitment to a common scheme designed to achieve an unlawful objective,” and must further “tend[] to exclude the possibility that [Defendants] were acting independently.” Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471.

As discussed at length below, the Court believes that the record evidence and the inferences that may fairly be drawn from this record give rise to a very close question on Plaintiffs’ per se claim, and that fair-minded jurists could reasonably disagree as to the resolution of this question. Certainly, Plaintiffs have produced a great deal of evidence which, if fully credited and granted generous inferences, could circumstantially support a finding of concerted, albeit sophisticated, interactions among the Defendant hospitals for the purpose of suppressing RN wages, at least over time.

However, after thorough review and careful consideration of this substantial body of evidence — and given the fairly stringent and somewhat elevated standard Plaintiffs must meet to establish their per se claim of conspiracy to fix wages — the Court finds that the inference of independent action arising from the record is at least as strong as the inference of a conspiracy to depress RN wages. It follows that an award of

summary judgment to Defendants is warranted on Plaintiffs’ per se § 1 claim. At the outset of this inquiry, the Court acknowledges Plaintiffs’ well-taken point that they need not produce evidence of a formal agreement among the Defendant hospitals in order to prove that these health care institutions engaged in a conspiracy in violation of § 1. See United States v. General Motors Corp., 384 U.S. 127, 142-43, 86 S.Ct. 1321, 1329, 16 L.Ed.2d 415 (1966).

As one appellate court has observed, the courts are not “so naive as to believe that a formal signed- and-sealed contract or written resolution would conceivably be adopted at a meeting of price-fixing conspirators in this day and age;” to the contrary, “the typical price-fixing agreement is usually accomplished” in a manner that “can ordinarily only be proved by inferences drawn from relevant and competent circumstantial evidence, including the conduct of the defendants charged.” Esco Corp. v. United States, 340 F.2d 1000, 1006-07 (9th Cir.1965). Moreover, this antitrust suit, in its present

summary judgment posture, is subject to the usual rule that Plaintiffs, as the non-moving parties, must be given “the benefit of all reasonable inferences” that may be drawn from the evidence, Smith Wholesale, 477 F.3d at 861, and “the question of what weight should be assigned to competing permissible inferences remains within the province of the fact-finder at trial,” Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir.1987).

The Sixth Circuit has identified four factors that a court should consider in evaluating the circumstantial evidence offered in support of a § 1 conspiracy claim: (1) whether the defendants’ actions, if taken independently, would be contrary to their economic self-interest; (2) whether the defendants have been uniform in their actions; (3) whether the defendants have exchanged or have had the opportunity to exchange information relative to the alleged conspiracy; and (4) whether the defendants have a common motive to conspire. Re/Max International, 173 F.3d at 1009.

Accordingly, the Court addresses each of these factors in turn, as well as other considerations identified by the parties, and then returns to the overarching inquiry whether the entire body of circumstantial evidence produced by Plaintiffs, considered as a whole, “tend[s] to exclude the possibility of independent conduct.” Re/ Max International, 173 F.3d at 1009. (

a) Evidence of Actions Taken by the Defendant Hospitals That Are Inconsistent with Their Independent Interests As the first category of circumstantial evidence offered in support of their per se § 1 claim, Plaintiffs contend that they have identified myriad instances and ways in which the Defendant hospitals have acted inconsistently with their independent pursuit of their respective self-interests.

Upon reviewing the evidence offered by Plaintiffs in support of this proposition, the Court agrees that most (but not all) of it tends to give rise to an inference of conspiracy that has greater force than the opposing inference of independent action. First and foremost, Plaintiffs naturally point to the substantial body of evidence revealing the Defendant hospitals’ regular requests for and exchange of competitively sensitive information regarding the wages paid to their RN workforces, projected wage increases, and the pay philosophies underlying their RN wage determinations.

As set forth above in the Court’s recitation of the voluminous record, Plaintiffs have produced evidence of Defendants’ repeated exchanges — through both direct contacts and third-party surveys — of (

i) detailed, current information as to the wages paid to their RN workforces, (see, e.g., Plaintiffs’ Response, Exs. 46E, 46G, 157); (ii) their planned future pay increases, (see, e.g., Plaintiffs’ Response, Exs. 71, 120, 121), and (iii) their overall philosophies and targets in setting RN wages, (see, e.g., Plaintiffs’ Response, Ex. 74). A fair number of these exchanges violated one or more of the criteria set forth in the DOJ/ FTC Guidelines, including the recommendations (

i) that wage surveys should be managed by a third party, (ii) that survey participants provide information that is more than three months old, and (iii) that the survey data be reported in a “sufficiently aggregated” form “such that it would not allow recipients to identify the ... compensation paid by any particular provider.” DOJ/FTC Guidelines, Statement 6(

A) at 63. As Defendants correctly observe, the “exchange of price data” — or, here, wage data — “among competitors does not invariably have anticompetitive effects,” but may to the contrary “increase economic efficiency and render markets more, rather than less, competitive.” United States v. United States Gypsum Co., 438 U.S. 422, 441 n. 16, 98 S.Ct. 2864, 2875 n. 16, 57 L.Ed.2d 854 (1978); see also Wallace, 55 F.3d at 1169; In re Baby Food, 166 F.3d at 126.

In Wallace, 55 F.3d at 1169 & n. 5, for example, the court recognized that the defendant banks “naturally are interested in surveying the market to determine what other banks are charging in order to make strategic competitive decisions,” and that the banks’ publication of their fees also served “to advise customers of the charges they must pay.” In addition, the DOJ/ FTC Guidelines expressly emphasize that the “safety zones” described therein are not to be taken “as defining the limits of joint conduct that is permissible under the antitrust laws.” DOJ/FTC Guidelines at 6.

Nonetheless, the brute fact remains that any pro-competitive objectives identified by the Defendant hospitals — and, as Plaintiffs observe, Defendants are long on generalities but short on specifics in this regard — could just as well have been achieved through exchanges that fell comfortably within the “safety zone” identified in the DOJ/FTC Guidelines. ‘ Plaintiffs state without contradiction that they do not seek to condemn the use of surveys in general, and they point to reputable, nationally recognized firms that “report the results of properly aged and highly aggregated data gathered from enormous numbers of participants.” (Plaintiffs’ Response Br. at 28 & n. 28 (citing an example of a Watson Wyatt survey that “had hundreds of participants”).) Yet, rather than relying on such third-party surveys that fully comported with the DOJ/FTC Guidelines, the Defendant hospitals time and again sought and obtained RN wage-related information through direct contacts and surveys that- fell short of the DOJ/FTC “safety zone” criteria.

Defendants are notably silent as to how it was necessary to their independent competitive interests to proceed in this fashion, rather than confining their exchanges to the “safety zone.” To the contrary, the manner in which the Defendant hospitals actually exchanged wage information, at least on many occasions, certainly appears to have been inconsistent with not only the DOJ/ FTC Guidelines, but also each participating hospital’s independent self-interest.

There is no dispute that these hospitals compete with each other in the market for RNs. (See Defendants’ Motion, Br. in Support at 12 (acknowledging that “Defendants compete for nurses with each other .... ”).) Against this backdrop, while it is understandable that each Defendant hospital would like to know what its competitors are paying their RNs, it is far less clear why a hospital would respond to a competitor’s request for this information regarding its own RN wages and pay practices.

As the Supreme Court observed in the analogous context of information-sharing among sellers, “if one seller offers a price concession for the purpose of winning over one of his competitor’s customers, it is unlikely .that the same seller will freely inform its competitor of the details of the concession so that it can be promptly matched and diffused.” United States Gypsum, 438 U.S. at 456, 98 S.Ct. at 2883; see also In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 906 F.2d 432, 450 (9th Cir.1990) (noting that the disclosure of “sensitive price information might be considered contrary to a firm’s self-interest,” and thus could support a jury’s finding of a “common understanding” among the companies sharing this information).

Likewise, in this case, if one of the Defendant hospitals sought to recruit a competitor’s RNs by raising its own wages, it would surely run counter to this purpose to notify the competitor about the increased wage rate. Yet, there is nary an example in the record of a Defendant hospital refusing a request for wage-related information on the ground that it was unwilling to disclose this competitively sensitive data. Still less clear is what pro-competitive justification exists for exchanging information regarding projected future wage increases, as the Defendant hospitals occasionally did in this case.

The court in In re Flat Glass, 385 F.3d at 369, viewed an analogous disclosure of a planned future price increase as “qualitatively different” from the type of information exchange it had deemed insufficient to establish a conspiracy in an earlier case, In re Baby Food. Similarly, the Second Circuit opined in Todd,

[…]