Steves and Sons, Inc. v. Jeld-Wen, Inc.

Filing 976

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/9/2018. (jsmi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division STEVES AND SONS, INC., Plaintiff, Civil Action No. V. JELD-WEN, 3:16-cv-545 INC., Defendant. MEMORANDUM OPINION This INC.'S MOTION PLAINTIFF the matter FOR STEVES reasons is set PARTIAL forth Court Inc.'s has the below, on JUDGMENT INC.'S DEFENDANT ON COUNTS COMPLAINT the motion JELD-WEN, I AND (ECF No. was considered that motion briefing. denied, briefing for in See the except judgment as ECF No. context a IV OF 375). lost profits damages under Count One, ordered further ('"JELD-WEN") Court SUMMARY AND SONS, the issue of future which the Court before on as to 578. of For The JELD-WEN, matter of law on the future lost profits damages claim at trial, after Steves and Sons, fact Inc. Accordingly, validity, {"Steves") only the had ripeness put of on that is addressed in this opinion. its claim, witnesses. and not its BACKGROUiro A. Factual Background 1. Pre-2012 Steves molded and JELD-WEN doorskin doorskin to I n t e r i o r Molded Doorskin Market is solid doorskin wood plants, doorskins to done so. doors at a States, slabs much create molded are the That cost. ship type of Interior doorskins manufacturers then interior which are built lower and door that in sold to to use the retailers or Steves is an independent door manufacturer that is unable As United interior molded doors, where build door distributors. the manufacturers assembly currently in used to make resemble molded market are both participants a manufacturers. to produce result, own doorskins, it must purchase doorskins JELD-WEN, door manufacturer, its however, meaning that is a and never from doorskin vertically it both produces has integrated doorskins and uses those doorskins internally to manufacture and sell finished doors. Before manufacturers main 2012, purchased suppliers: (^^CMI''),^ Steves and interior JELD-WEN, and Masonite.^ Like other molded CraftMaster JELD-WEN, independent doorskins door from three Manufacturing, Inc. CMI and Masonite were ^ CMI came into existence following the merger of Masonite and Premdor in 2002. After the Department of Justice ("DOJ") filed suit to block the merger, the parties entered into a consent both vertically doorskins integrated manufacturers of interior molded and doors. 2 . Execution of Supply Agreement On May term 1, supply which WEN' s and ("the would JELD-WEN. Statement of (^'Def. a party successive Undisputed SUMF") i Agreement any reason further upon the two-year into Agreement"), inter alia, 37 9-2 (Under Material 2019, a long- pursuant interior Seal) Facts § (ECF to molded 1; JELD- No. 37 9) but would automatically renew term contract. provided entered 1. The Supply Agreement would be in seven-year terminated Supply ECF No. effect through December 31, for JELD-WEN purchase, from (Under Seal) Steves agreement Steves doorskins 2012, that written at that Supply Steves notice time either Agreement § 2. could to unless terminate JELD-WEN, it and The for that decree allowing the merger on the condition that Masonite divest its Towanda plant, which CMI subsequently purchased. ^ JELD-WEN argues that the Court should not consider this fact and others referenced in this section because Steves presented them in narrative format, in violation of Local Rule 56(B). See Integrated Direct Mktg., LLC v. May, 129 F. Supp. 3d 336, 344-46 (E.D. Va. 2015) (refusing to consider new facts presented in narrative format in oppositions to motions for summary judgment because oppositions did not specifically state which undisputed material facts in motions were disputed). But Steves' opposition, besides stating narrative facts, specifically disputes or agrees to all of JELD-WEN's purportedly undisputed material facts. Moreover, JELD-WEN included an appendix to its reply disputing the narrative facts in Steves' opposition. Therefore, unlike in Integrated Direct Marketing, i t is fairly easy to discern which facts are disputed and which are not. JELD-WEN could likewise year written notice Steves' Statement (Under Seal) to of (^'Pl. terminate Steves. Id. Additional SAMF") f of its PI. SAMF SI 2. without cause § 3(a) (2) (b) ; Material seven- Def. SUMF SI 2; (ECF No. Facts 452) Steves had to purchase at least interior molded doorskin requirements Steves upon 4. Under the Supply Agreement, 80% it could, however, purchase from JELD-WEN. any quantity of doorskins from another supplier that offered a price at least 3% lower than JELD-WEN's purchase price, chance to match that lower price. The prices that Id. after SI 3; JELD-WEN had the Supply Agreement § 4. JELD-WEN would charge Steves for doorskins were variable and were calculated using a formula based on JELD-WEN's key input costs. Supply contract obligated products of Agreement § 6(c). JELD-WEN satisfactory to provide quality. disputes arose under the Agreement, Id. in an alternative dispute initiating litigation. conference between mediation i f the the process parties' conference was addition, Steves § 8. with Finally, the doorskin if any the parties were required to participate That In resolution process before began senior with an executives, unsuccessful. Id. § internal and then 10. 3. JELD-WEN's Acquisition of CMI On June was 15, acquiring CMI JELD-WEN 2 012, JELD-WEN and CMI and merging CMI's ("the CMI Acquisition"), announced that operations JELD-WEN and assets into pending due diligence and the signing Steves of a definitive knew before WEN was planning condition the it agreement. executed the of that the Acquisition would Steves that or non-occurrence of the merger. SUMF 1 14. Supply Agreement to purchase CMI, effectiveness Def. and reduce the that JELD-WEN contract on Steves was Although the JELD- did not occurrence aware at that time U.S.-based doorskin manufacturers to only JELD-WEN and Masonite. Id. fl 16-18. On July 11, 2012, the DOJ's Antitrust Division notified JELD-WEN that it had opened a preliminary investigation into the proposed CMI did oppose not Acquisition. investigation action to the on Steves merger. September prevent the indicated The 28, CMI Antitrust 2012 to the DOJ Division without Acquisition. its taken any IS! 19-21. Acquisition was then completed on October 24, 2012. Id. Following the CMI in Chicago, plants, and merger, closed the head structure. doorskin manufacturing addition to those CMI's JELD-WEN plants broader sales in staff also Iowa changes, and into shut down North JELD-WEN one ^ 15. office of hundred obsolete dies, doorskin designs from 31 to 19. Id. and H reduced 33-41. JELD-WEN's its Carolina. consolidated JELD-WEN and CMI doorskin dies into one portfolio, than The as well as two of CMI's four door manufacturing transitioned organizational JELD-WEN it closed having Id. that own In the retired more the number of JELD-WEN also acquired subsequently constructed a building, and this disputed. MiraTec and the Towanda plant. consolidation JELD-WEN of Towanda plant. JELD-WEN $1.6 million paint plant inside that JELD-WEN's manufactured at CMI's Id. SS operations contends that Extira at it products 42-43. the cannot are now The effect of Towanda plant physically is separate the manufacturing lines for the MiraTec and Extira products from the doorskin plant, not id. manufacturing H 44, conducted lines that are also at the Towanda but Steves points to evidence that JELD-WEN has an extensive analysis of divestiture order with respect to the plant, the effects of PI. SAMF SISI 37, a 39. 4. Post-Merger Interactions Between Steves and JELD-WEN After the merger, have continued to do JELD-WEN's so in most key input costs declined, years since then. The disagree about whether these declining costs are the JELD-WEN having acquired the low-cost Towanda plant, the input declined costs for notwithstanding these declining costs, increased under JELD-WEN's the the prices Supply the however, it indicating increases for certain that plants Acquisition. Id. Id. Steves i JELD-WEN doorskins 7. to might that have JELD-WEN outside the scope of the Supply Agreement. of or whether would have Despite JELD-WEN has purchase Steves parties result SI 5. Steves claims that charges Agreement. documents CMI "legacy" and also doorskins highlights imposed believed price were Some with JELD-WEN employees also acknowledged quality problems the company's doorskins after the CMI Acquisition, and Steves complained to JELD-WEN about the declining quality of the doorskins. Id. JELD-WEN made customers, unclear, SISI 10-11. it more such as however, Acquisition. doorskins Acquisition difficult Steves, 2014 early was agree 2012, between according to a new including a "capital doorskins. evidence the merger for that external to return defective products. and consummated acrimony when, after cites It is JELD-WEN began internal testing of thinner thickness of i t s doorskins. The Steves whether these problems were caused by the CMI Indeed, in Moreover, to that Def. it Steves before reduced had and the JELD-WEN JELD-WEN structure charge"—an asserts Steves the target SUMF SISI 10-11. Steves, pricing JELD-WEN informed for 11% that demanded the never in made in that Supply increase it peaked July Steves Agreement, the price this of demand, noting that Steves has never paid any capital charge under the Agreement. September Id. 10, SI 8. 2014, In any JELD-WEN event, shortly provided thereafter, with Steves on of termination of the Supply Agreement. Consequently, will terminate on September 10, Id. The interest date. parties in present continuing conflicting to Steves claims that 2021. sell JELD-WEN has 7 the Agreement 3-4. evidence doorskins notice to about Steves JELD-WEN's after that refused to provide Steves with any proposal for terms of a new long-term supply agreement, but JELD-WEN insists that it has told Steves it is interested in negotiating this future dispute, doorskin after parties the sales agree that 2021. Notwithstanding JELD-WEN has supplied doorskins to Steves since giving notice of termination. Id. ^ 5. 5. Steves' Efforts to Obtain Alternative Doorskin Supply After JELD-WEN notified Steves Supply Agreement, that i t would terminate the Steves began to explore ways to produce or acquire interior molded doorskins without relying on JELD-WEN. Id. SI 32. One Masonite. would other supplier However, no Masonite in longer sell is, or ever July that 2014, doorskins was, Steves Masonite to amenable announced third to considered parties. selling that was it Whether doorskins to Steves at reasonable prices is highly disputed. Steves points to documents entered indicating into that, after long-term supply the merger, agreements Masonite with any has not third-party customers; will not negotiate the price of its doorskins; limits external sales of doorskins to customers or products with which Masonite does not compete; to meet Steves' prices much needs; higher cannot sell Steves enough doorskins and has only offered Steves doorskins at than prices Masonite offered in 2012, prices JELD-WEN charged under the Supply Agreement in 2015. SAMF SISI 16-22. indicates that JELD-WEN, Masonite however, would claims sell that doorskins some to or PI. evidence Steves at standard prices; that Masonite has sold doorskins to external customers from 2010 to 2016; and that Steves has not determined whether the 2015 prices that Masonite quoted to Steves would be unprofitable for Steves. Def. SUMF if 27-31. Steves has also pursued relationships with foreign doorskin suppliers like Teverpan, unclear whether quantity and Negotiations those range with SAMF Slf 24-27. those Some Kastamonu, suppliers of and Yildiz, can provide doorskins suppliers that are evidence indicates although it is Steves Steves at various that Steves with the requires. stages. Pi. could obtain doorskins from Teverpan at prices more than 3% lower than those JELD-WEN charges under the Supply Agreement, but other evidence suggests that the quality of doorskins from foreign suppliers is inadequate to satisfy Steves. Finally, Steves has considered becoming vertically integrated by building its own doorskin manufacturing plant. The parties disagree about WEN highlights evidence to and two years, how long this process might take. indicating that the timeline Steves has presented evidence JELD- is closer showing that three to four years is a more realistic estimate. In any event, Steves it has not yet identified manufacturing facility. Id. a SI 29. partner to help build any 6. Initiation of Alternative Dispute Resolution Process In January requested Steves 2015, an consistent affidavit with from the Supply JELD-WEN Agreement, supporting its announced price increases. Id. SI 33. Then, in March 2015, Steves demanded an internal conference JELD-WEN over doorskin pricing resolution was reached, the parties participated in mediation, and then entered into a to resolve and its quality standstill agreement dispute issues. with When no regarding Steves' claims under the Supply Agreement and ^^the antitrust laws." Even after mediation, and agreed to the parties continued settlement discussions, four extensions of the standstill agreement between September 2015 and April 2016. Id. SISl 34-36.^ However, that agreement did not at any point explicitly prevent Steves from filing an antitrust claim. Def. SUMF SI 26. ^ JELD-WEN disputes these facts solely on the basis that they are inadmissible settlement at trial communications. because they See R. Fed. reflect Evid. confidential 408(a)(2). But even if this evidence concerns a "disputed claim" within the scope of Rule 408, Steves may offer this evidence at trial for purposes other than "prov[ing] or disprov[ing] the validity or amount" of that claim, or impeaching one of JELD-WEN's witnesses. Id. 408(a). The Court already recognized as much in denying JELDWEN' s related motion in limine. ECF No. 779. true that this evidence "cannot be presented would be admissible in evidence," Fed. R. Civ. the Court can consider those facts 10 here. Thus, in P. it is not a form that 56(c) (2), so B. Procedural Background Following the failure resolution process, 2016, of Steves the parties' initiated this required action on dispute June asserting antitrust and contract claims against 29, JELD-WEN related to the CMI Acquisition and JELD-WEN's alleged breach of the Supply Agreement. Complaint Complaint contained the under Clayton Act, the Breach of Contract; (ECF No. following Section claims: 7, COUNT THREE, 5) 15 (Under Seal). COUNT U.S.C. § ONE, 18; Breach of Warranty; a The claim COUNT TWO, COUNT FOUR, Declaratory Judgment, concerning certain rights under the Supply Agreement and the putative termination of that contract; FIVE, Specific Performance, COUNT SIX, sought two relief Trespass forms to: of pursuant 15 U.S.C. § 26, (1) a regarding the Supply Agreement; Chattels.^ relief. to to create to It 16 JELD-WEN doorskin Id. SISI 175-206. Count of to the divest manufacturer Clayton assets interior molded doorskin before the CMI Acquisition. damages pursuant to One with the market to Alternatively, Section 4 of its Act, sufficient same market (2) restore significance that CMI had before the Acquisition; or the and primarily requested injunctive Section force COUNT competitive state Steves sought treble the Clayton Act, ^ On October 2, 2017, the Court dismissed Count Six as moot after Steves claim. notified ECF No. the 409. Court All that it other claims 11 would not persist remain here. with that 15 U.S.C. § 15, for injuries suffered by Steves as a result of the anticompetitive effects of the CMI Acquisition, JELD-WEN's refusal to sell doorskins to Steves including at prices consistent with the Supply Agreement and JELD-WEN's termination of the contract. Id. On August 5, failure motion to 2016, JELD-WEN moved to dismiss Count One for state on SISI 177-78. a claim. October 21, ECF No. 2016, 20. The concluding Court that denied the that Complaint plausibly alleged that the CMI Acquisition violated Section 7 by causing higher doorskin prices, lower doorskin quality, reduced doorskin output, and increased coordination between JELD-WEN and Masonite, Steves and that these anticompetitive effects impacted both and the broader doorskin market. ECF No. 64. At a pretrial conference on October 19, 2016, the matter was set for trial to begin on June 12, 2017, and a detailed schedule for the conduct of pretrial proceedings was thereafter implemented. No. 65. Pursuant to that schedule, the parties engaged ECF in extensive discovery. On Answer March 27, and to add 2017, counterclaims WEN' s recent detection, discovery, confidential the of JELD-WEN ^^Steves' against leave Steves to amend based on its JELD- from documents produced by Steves during theft of information." ECF No. counterclaims sought alleged that JELD-WEN 101 at 1-2. Steves 12 trade and two secrets and In relevant part, former JELD-WEN employees, John Pierce and John Ambruz ("Ambruz"), had engaged in a conspiracy to steal trade secrets from JELD-WEN concerning how to build and operate a doorskin plant that could produce the type of doorskins that Steves was buying from JELD-WEN under the Supply Agreement. Although the Court granted JELD-WEN leave to assert the counterclaims, the Court also ordered that they be tried separately from the antitrust and contract claims. Nos. 239-240. April 9, pretrial Trial 2018, for counterclaims is set to begin on and the parties are proceeding on a separate schedule counterclaims the ECF are for that relevant not case. to ECF the No. 374. Court's Those decision on summary judgment here. After completing discovery, Steves and JELD-WEN both moved for summary judgment on September 22, 2017. Steves sought a ruling from the Court that it had established its prima facie case under Count One that the CMI Acquisition is likely to have anticompetitive effects in the interior molded doorskin market. ECF No. 2017, 381. The Court denied Steves' motion on November 21, based on the Court's finding at oral argument that there were genuine disputes of material fact as to whether Steves had satisfied the elements of its prima facie case. ECF No. 575. JELD-WEN sought summary judgment on Count One, the divestiture damages caused claim by the and CMI the claim for Acquisition, 13 future and as to both lost Count profits Four. On November 27, 2017, the Court denied JELD—WEN's motion to the extent it sought summary judgment on Count One's divestiture claim and Count Four, for reasons to be explained in a forthcoming memorandum opinion. ECF No. 578. However, the Court ordered the parties to submit supplemental briefs on the question of whether JELD-WEN was entitled to summary judgment on Steves' Nos. future lost profits damages claim under Count One. 574, ECF 578. Shortly thereafter, on December 1, 2017, JELD-WEN notified the Court that Steves had recently produced to JELD-WEN more than two hundred pages of handwritten notes of Gregory Wysock (^^Wysock") , a Steves employee whose certain aspects of Steves' JELD-WEN to conduct a testimony is relevant to claims. ECF No. 603. After allowing supplemental deposition of Wysock, the Court granted JELD-WEN's request to conduct limited additional discovery information of Wysock, obtained Sam Steves during that II, and deposition. Ambruz The based Court on also amended the briefing schedule for the supplemental briefs as to Steves' future lost profits damages claim under Section 7, to allow the parties to include evidence from Wysock's deposition and recently-produced notes. WEN's motion for summary ECF No. judgment 732. did As not a result, become ripe decision on all issues contained therein until January 9, 14 JELDfor 2018. The Court then heard further argument on the profits damages claim January 22 and 26, at lost Final Pretrial Conference It did not, 2018. the future on however, decide whether summary judgment should be granted on that claim before trial commenced. Instead, the Court allowed Steves to present evidence at trial to attempt to establish a factual predicate upon which the jury could determine the fact and amount of the future lost profits damages with reasonable certainty. On February 6, 2018, after Steves had introduced that evidence but before its damages expert presented JELD-WEN his moved for 50(a) on Procedure future a the lost judgment future profits under lost damages Federal profits estimates, Rule of Civil claim-effectively converting its motion for summary judgment on that issue to a motion for judgment as a matter of law. The Court denied that motion, but its reasons for doing so are irrelevant here. In any event, future lost having profits entertained damages, Steves' the trial Court will evidence not about consider in this opinion whether summary judgment on that claim would have been appropriate. DISCUSSION I. Legal Standard Under Fed. R. Civ. P. 56, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 15 matter of law." Fed. R. Civ. P. 56(a). Rule 56 requires 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 party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). For a court to enter summary judgment, "there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Id. at 323 (internal quotations omitted). When reviewing a motion for summary judgment, a court must interpret the facts and any inferences drawn therefrom in the light most Elec. Indus. (1986); favorable Co. Lee v. to v. the Zenith nonmoving Radio Town of Seaboard, party. Corp., 863 475 See Matsushita U.S. F.3d 323, 327 574, 587 (4th Cir. 2017). To successfully oppose a motion for summary judgment, the nonmoving party must demonstrate to the court that there are specific facts that would create a genuine issue for trial. See Anderson v. Liberty Lobby, However, "Mc]onclusory suffice' to judgment, Andrews, oppose a Inc., or 477 U.S. speculative properly supported 242, 250 allegations motion for (1986). do not summary ^nor does a mere scintilla of evidence.'" Matherly v. 859 F.3d 264, 280 (4th Cir. 16 2017) (quoting Thompson v. Potomac Elec. Power Co., "Where . . . the rational trier record of 312 taken fact to F.3d 645, as find a 649 whole for {4th Cir. could the 2002) ) . not lead non-moving a party, disposition by summary judgment is appropriate." United States V. Lee, II. 943 F.2d 366, 368 (4th Cir. 1991). Count One JELD-WEN grounds. seeks First, summary judgment on Count One on three it contends that Steves has not suffered any antitrust injury from the CMI Acquisition that is separate from the contract injury caused by JELD-WEN's alleged breach of the Supply Agreement. Moreover, JELD-WEN says, even if its breach of contract could have caused cognizable antitrust harm, not shown that any anticompetitive effects Steves has of the Acquisition impacted Steves by forcing it to pay higher prices or receive lower quality doorskins. Second, JELD-WEN asserts that Steves' claim for future lost profits damages is not ripe because those damages are based on speculation about future antitrust injury. Alternatively, those future damages depend on the occurrence of certain future events and are thus entirely speculative. Third, Steves' laches divestiture claim is barred by the doctrine of and because Steves cannot show a significant threat of antitrust injury. 17 A. Antitrust Injury and Impact 'MA]ny person . . . injured in his business or property by reason of anything forbidden in the antitrust laws" can assert a private damages claim under Section 4 of the Clayton Act. 15 U.S.C. § 15(a). To prevail on that claim, the plaintiff must demonstrate three elements: (1) violation of the antitrust law, (2) direct injury to the plaintiff from such violation, and (3) damages sustained by the plaintiff. Windham v. Am. Brands, Inc., 565 F.2d 59, claim is 65 (4th Cir. 1977). The ''gravamen" of a Section 4 not subsequent the antitrust ^'individual violation injury." Id. itself, but Furthermore, rather the the injury proven must be "of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' unlawful." Brunswick Corp. 477, 489 (1977). the anticompetitive v. Pueblo Bowl-Q-Mat, In other words, effect Inc., acts 429 U.S. 'Mt]he injury should reflect either of the violation or of anticompetitive acts made possible by the violation." Id. 1. Existence of Antitrust Injury JELD-WEN's first satisfy the argument is that Steves' Brunswick definition of injuries do not antitrust injury because those harms arose under the Supply Agreement, not because of any reduced competition from the CMI Acquisition. this case to others in which courts JELD-WEN compares rejected Section 4 claims based on injuries that were linked to defendant's breach of an 18 existing contract between the parties. See/ e.g.^ Orion Pictures Distribution Corp. v. Syufy Enters., 829 F.2d 946, 949 {9th Cir. 1987) (movie theater owner's repudiation of guarantees owed to film distributor by contract, after owner acquired competitor, was because not antitrust [distributor] were guarantees," so injury fixed by its ''competition ''[owner]'s duties to contractual commitment to pay was no longer a factor in determining [owner]'s obligation to [distributor]"). Noting that the parties entered into the Supply Agreement five months before the CMI Acquisition closed, cases, Steves' injuries JELD-WEN argues that, (JELD-WEN's price as in those increases under the Supply Agreement and its refusal to reimburse Steves for claims of defective doorskins) stem from the contract rather than as a consequence of the lessening of competition as a result of the CMI Acquisition. This argument mischaracterizes Steves' ignores key differences JELD-WEN. As constitute this JELD-WEN acknowledges, antitrust bound by a contract. contract between injury even case Section 4 claim and and those cited by contractual harm can still if the parties' actions are The relevant question is not whether the itself predated the anticompetitive effects at issue, but instead whether '^the only competition alleged to be injured predated" the anticompetitive activity. Z Channel Ltd. P'ship v. Home Box Office, Inc., 931 F.2d 19 1338, 1342 {9th Cir. 1991) (emphasis in original). In Orion Pictures, there was no antitrust injury because ""^the injury to competition in that case (allegedly acquiring the . . . injury occurred." monopoly (loss of power) revenue at 1345 n.lO. Here, had from the ended broken by contrast, before contract) competition was not eliminated by the time that the doorskin pricing and quality injuries Supply occurred. Agreement To the contrary, contained Steves provisions asserts intended that the to preserve competition: for instance, the requirement that Steves purchase only 80% of its doorskins from JELD-WEN, or the allowance of purchases from other suppliers if JELD-WEN could not match their low prices. also be Consequently, breaches of the Supply Agreement can considered antitrust injuries to the extent that they resulted from the reduced competition under that contract that was facilitated by the CMI Acquisition. Steves has produced sufficient evidence to create a genuine dispute of fact on this issue. It has shown at least that the Acquisition may have allowed JELD-WEN to raise prices under the Supply Agreement or provide lower quality doorskins because the merger undercut Steves' higher-quality doorskins that there post-merger is no ability Teverpan or Masonite, seek favorable from other suppliers. evidence availability to to support of these alternate both of which 20 prices JELD-WEN claims theories, supply—from JELD-WEN or focuses but the either on—is a subject of intense dispute. In addition, Steves has presented evidence indicating that the merger permitted JELD-WEN to raise prices on Madison and Monroe Masonite to terminate limit the JELD-WEN's doorskin doorskins, supply Supply Agreement enhanced market to to the market, in September power. coordinate with 2014 A jury could and to because of conclude that these steps were ''anticompetitive acts made possible by the [CMI Acquisition]." See Brunswick, 429 U.S. at 489. As a result, even if is not extensive, this evidence raises a genuine dispute about whether Steves has suffered an antitrust injury. 2. Impact from Anticompetitive Effects JELD-WEN further contends that, even if JELD-WEN's breaches of the Supply Agreement could establish antitrust injury, Steves has not shown that those injuries are causally linked to the CMI Acquisition. In the antitrust context, the injury element "is often referred to as impact or fact of damage. It is the causal link between the antitrust plaintiffs [,] [and] thus showing the violation and the injury that activity." Litig. , In re New 522 F.3d 6, quotations omitted). 19 requires Motor is the both {1st Cir. 2008) sought by injury-in-fact result Vehicles damages and a of the antitrust Canadian Exp. Antitrust (internal citations and To show ''fact of damage" or impact, "[i]t is enough that the illegality is shown to be a material cause of the injury; a plaintiff need 21 not exhaust all possible alternative sources of injury in fulfilling his burden proving compensable injury." Zenith Radio Corp. v. Research, Inc., 395 U.S. 100, 114 n.9 (1969) of Hazeltine ("Zenith Radio I"). Thus, for example, proof of impact in a Section 4 case can be shown by proof of what price the plaintiff would have paid had the merger never occurred. See Robinson v. Ass^n, 387 F.3d 416, 422 {5th Cir. 2004) simply by proof competitive of rate." purchase (internal at a Tex. Auto. Dealers {"[Ijmpact may be shown price quotations higher than omitted)); In the re Graphics Processing Units Antitrust Litig., 253 F.R.D. 478, 507 (N.D. Cal. 2008) the Clayton Act, higher price for ("GPU") CMHn order to satisfy Section 4 of plaintiffs must demonstrate that they paid a their graphics card or computer than they otherwise would have paid in the absence of a conspiracy.").^ JELD-WEN argues that Steves has not met its burden because it has not shown what doorskin prices or quality would have been without the CMI Acquisition. ^ As Steves notes, both Robinson and GPU discussed impact at the class certification stage, so evidence of a higher price that every class member would have had to pay would be the only way to satisfy the commonality and predominance requirements under Rule 23. Therefore, Robinson, 387 F.3d at 422; GPU, 253 F.R.D. at 507. these cases do not necessarily indicate that an individual plaintiff must demonstrate a precise competitive benchmark to show impact, as causation could be shown through other individualized proof of harm. 22 Here too, however, JELD-WEN fails to account for certain that supports Steves' asserts that evidence Steves its theory liability of antitrust expert, Carl injury. Shapiro ("Shapiro"), did not conduct an empirical analysis of the prices that JELD-WEN would have charged absent the Acquisition because he did not need to: the Supply Agreement set the competitive benchmark of prevailing doorskin prices before the merger. JELDWEN certainly benchmark, disagrees that the Agreement an accurate but the weight of Shapiro's analysis is a question for the jury, not the Court. Moreover, JELD-WEN increased doorskin prices as is key input costs at evidence indicates that from pre-merger levels even JELD-WEN's legacy plants declined.^ Similarly, there is genuine evidence that the decrease in JELDWEN' s doorskin quality was exacerbated by the CMI Acquisitioneven if JELD-WEN merger—and that quality issues. create a had begun customers This dispute to thin other than circumstantial about its whether doorskins Steves evidence the 395 U.S. at 114 suffered the from sufficient Acquisition anticompetitive effects that impacted Steves. I, is before to caused See Zenith Radio (circumstantial evidence was sufficient to ® This evidence can therefore show antitrust impact even without considering the cost reductions allowed by JELD-WEN's acquisition of CMI's Towanda plant because JELD-WEN still would have owned the legacy plants in the absence of the merger. 23 "sustain the inference" of impact). Consequently, summary judgment on Count One cannot be granted on this basis. B. Future Lost Profits Damages Claim JELD-WEN makes two separate arguments as to Steves' Section 4 claim for future lost profits damages.'' First, it asserts that the claim is not ripe, as Steves' future damages relate to an antitrust injury that Steves may never suffer. Second, JELD-WEN contends that even if those damages antitrust injury, are based on an existing Steves cannot recover them because they are unreasonably speculative. decision on the evidence at trial, second so As noted, argument the the until validity of Court Steves reserved had Steves' its presented future lost profits damages claim is not discussed in this opinion. However, because the ripeness contention calls into question the Court's jurisdiction over that claim at trial, the Court will address it here. Article III of the Constitution limits federal deciding actual '^''cases'' and "controversies." Doe v. courts Obama, to 631 F.3d 157, 160 (4th Cir. 2011). JELD-WEN's motion pertains to two intertwined aspects of the justiciability requirement, standing ^ Steves seeks these damages only under Count One because it concedes that JELD-WEN's September 2014 notice of termination of the Supply Agreement did not breach the contract. 24 and ripeness.® See Miller v. Brown^ 462 F. 3d 312, 319 {4th Cir. 2006) {''Analyzing ripeness is similar to determining whether a party has standing."). Although a plaintiff must satisfy three requirements to establish standing to seek particular relief, the only one relevant here is that the plaintiff must have suffered an injury in fact-"an invasion of a legally protected interest which is (a) actual or imminent, Defs. of Wildlife, concrete and particularized, and (b) not conjectural or hypothetical." Lujan v. 504 U.S. 555, and quotations omitted). 560 However, (1992) (internal citations "the standing doctrine only answers the question of who may sue, not the question of when a party may sue, ripeness." Common, added) which properly is addressed by the doctrine of Hispanic 897 F. Leadership Supp. 2d 424 Inc. (E.D. v. Va. Fed. Election 2012) (emphasis {citing Miller, 462 F.3d at 319). The issues ripeness until a doctrine Mun. inquiry, Ct. a ® JELD-WEN of L.A., court must does ''prevents controversy concrete form.'" Miller, v. 407, Fund, not is judicial consideration of presented 462 F.3d at 318-19 331 U.S. 549, "balance the assert that 584 fitness Steves in ^clean-cut and (quoting Rescue Army (1947)). of the lacks Under issues standing to that for seek future lost profits damages. However, the elements of Article III standing provide helpful context for JELD-WEN's ripeness argument; indeed, JELD-WEN referenced those elements when introducing the ripeness challenge in its supplemental brief. 25 judicial decision withholding with court the hardship consideration." to Id. the at parties 319 of (internal quotations omitted) . "A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not other words, rests upon dependent "Ma] on future claim is not contingent future uncertainties." events In for adjudication if ripe Id. it that may not occur as anticipated, or indeed may not occur at all.'" Scoqgins v. Lee's Crossing Homeowners Ass'n, (alteration in original) U.S. 296, ''is 300 measured 718 F.3d 262, 270 (quoting Texas v. (4th Cir. 2013) United States, 523 (1998)). "The hardship prong," on the other hand, by the immediacy of the threat and the burden imposed on the [plaintiff]," including "the cost to the parties of delaying judicial review." Miller, 462 F.3d at 319 (internal quotations omitted). The plaintiff bears the burden of proving ripeness. Id. The parties' arguments focus almost entirely on the first element—the fitness of Steves' future damages claim for judicial review. this The disagreement on issue concerns whether to characterize the injury causing the future damages as a present injury or a stem That from future injury. JELD-WEN's injury, Acquisition, says which 2014 Steves contends termination Steves, enhanced is a of the Supply Agreement. consequence JELD-WEN's 26 that those damages power in of the CMI the interior molded doorskin decisions market that would and limit manufacturers to obtain a whatever damages terminates in allowed to make ability the it of competing stable doorskin supply. Steves incurs September 2021 when As the to a Supply relate will long-term door result, Agreement a previous anticompetitive act that impacted Steves long before 2021. JELD-WEN, on the other hand, injuries from presumably, Steves the CMI concedes that claims for some Acquisition may be ripe—such increased door prices. Nonetheless, will only incur lost profits as, it insists that damages if it suffers another antitrust injury in 2021, when JELD-WEN stops providing Steves with doorskins doorskin supply. be linked requires to and Steves cannot obtain the CMI will come to pass. Acquisition, about whether its occurrence certain supply terms, Steves substantial This events Specifically, the parties must fail to enter doorskins must doorskin supply, necessarily intervening into another long-term doorskin supply agreement, to alternate JELD-WEN asserts that even if that harm could speculation refuse an be to unable Steves to on find JELD-WEN must commercially any other viable source of and Steves must go out of business or suffer a loss. framing of the injury relies on the Supreme Court's discussion of antitrust injury and damages in Zenith Radio Corp. V. Hazeltine Research, Inc., 401 U.S. 27 321 (1971) (^'Zenith Radio II'') . In that case, the court noted that, for purposes of the statute of limitations for Section 4 damages claims, the general rule is that ''a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business." Id. at 338; see also 15 U.S.C. § 15. In the specific context of ''a continuing conspiracy to violate the antitrust laws . . . this [rule] has usually been understood to mean" that each injury suffered gives rise to a separate cause of action that is subject to its own limitations period. Zenith Radio II, 521 U.S. 401 U.S. 179, 189 at 338; see also Klehr v. A.O. (1997) Smith Corp., (''Antitrust law provides that, case of a continuing violation, say, in the a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years, each overt act that is part of the violation and that injures the plaintiff . . . starts the statutory period running again . . . ." (internal quotations omitted)). In those circumstances, damages must be connected to discrete injuries that caused them: [E]ach separate cause accrues entitles a of plaintiff action to that so recover not only those damages which he has suffered at the date of accrual, will suffer in but also those which he the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all 28 the damages incurred provable damages future that acts of the all the conspirators on date. Zenith Radio II, citations from the by that date and that will flow in 401 U.S. at 338-39 (emphasis added) omitted). By extension, then, (internal ^^refus[ing] to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered." Id. the ^'particular damages relate at 339. Applying this rationale here, invasion" to is, that in Steves' JELD-WEN's future lost view, the profits eventual expiration of the Supply Agreement in 2021. To the extent that such damages are linked to an antitrust injury that has already occurred, they are too speculative because so many intervening acts could change Steves' Consequently, doorskin supply by that future date. if Steves can obtain those damages at all, it can only do so when it actually loses JELD-WEN's doorskin supply and goes out of business in 2021.^ ^ To preserve the viability of this potential claim, JELD-WEN reiterates its earlier representation to the Court that—should Steves actually go out of business in 2021—JELD-WEN will not seek dismissal of a Section 4 damages claim on the basis that the claim accrued earlier and is barred by the statute of limitations. Nor, says JELD-WEN, will it assert any time-related defense. 29 JELD-WEN's reading of Zenith Radio II misunderstands the scope of that case. Other courts have held that the "continuing violations doctrine" described in Zenith Radio II and Klehr can only be applied in ''conspiracy and monopolization cases not involving mergers or acquisitions." Z Techs. Corp. v. Lubrizol Corp. , 753 F.3d 594, Klehr, 521 U.S. 599 at 189 (6th Cir. 2014) (citing, inter alia, (emphasizing that the case involved "a price fixing conspiracy"); Zenith Radio II, 401 U.S. at 338-39 (discussion confined to "the context of a continuing conspiracy to violate the antitrust laws")); Brunswick Corp., 207 F.3d see also Concord Boat Corp. 1039, 1052 {8th Cir. v. 2000) ("Continuing violations have not been found outside the RICO or Sherman Act conspiracy context . . . because acts that simply reflect or implement a prior refusal to deal or acts that are merely unabated inertial consequences restart the statute of (of a single act) limitations." (internal do not quotations omitted)) . This action Acquisition, to Steves decrease predicated that—based on by allowing on a and give without JELD-WEN notice concern "single act," the CMI the disputed evidence—caused injury to the quality of its doorskins customers, Agreement is of that 30 raise with no termination Steves doorskin could prices, risk of losing for the obtain a Supply steady doorskin supply elsewhere/® Those injuries appear to be the very ''unabated inertial consequences (of a single act)" that do not implicate the continuing violations doctrine underlying JELDWEN's argument. Concord Boat, 207 F.3d at 1052. JELD-WEN does not explain why that doctrine applies in this situation, that Steves' such future damages are necessarily separate from the injury suffered when JELD-WEN gave notice of termination for the Supply Agreement in 2014.^^ Therefore, JELD-WEN's claim that the Court must assess ripeness injury-by-injury is irrelevant here. 12 Steves has shown that whether it suffered antitrust injury when JELD-WEN's counsel claimed at the Final Pretrial Conference that its notice of termination could not be considered an antitrust injury because the parties had so stipulated. However, JELD-WEN provided no evidence of that stipulation, and Steves' counsel indicated that the stipulation likely reflected that JELD-WEN's notice could not give rise to contractual liabilitywhich Steves has agreed is not the case. It may well be true that Steves could suffer some other future antitrust injury from the CMI Acquisition that the parties have not identified, and that the act causing that injury could be of the type that implicates the continuing violations doctrine. However, the Court cannot resolve that hypothetical issue here. The only cases that JELD-WEN cites as purportedly establishing this principle involved challenges to rules or standards that were either completed and being enforced, and thus ripe for review, or were in "early stages of development," and thereby unripe. See Volvo N. Am. Corp. v. Men's Int'l Prof'1 Tennis Council, 857 F.2d 55, 64-65 (2d Cir. 1988); Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 801 F. Supp. 2d 1163, 1183-84 (D.N.M. 2011). The harms that Steves suffered because of the CMI Acquisition are not as easily separable in a temporal or causal sense. As a result, it is uncertain whether the rationale of those cases would hold for Steves' injuries. 31 JELD-WEN provided that notice is a triable factual issue, and it is clear that a claim based on an existing injury is ripe. Miller, 462 F.3d at 319. Moreover, the only other relevant case cited by JELD-WEN, SureShot Golf Ventures, 17-127, 2017 inapposite. antitrust party See WL Inc. 3658948 There, v. Topqolf Int'l, (S.D. plaintiff Tex. Aug. alleged that Inc., No. 24, CV H- is suffered it 2017), an injury following defendant's acquisition of a third because defendant refused to give plaintiff assurances that it would exercise its option to renew the parties' contract for plaintiff's license to proprietary technology developed by the third party when that contract expired in five years. Id. at *3-4. The court dismissed plaintiff's Section 4 damages claim as unripe because defendant's "perceived threats behavior [we]re speculative and d[id] at *4. But, of monopolistic not confer standing." Id. in reaching that conclusion, the court specifically noted that plaintiff had not pled that defendant had ''denied it access to the of the [proprietary technology]." Id. antitrust actually competitors occurred (i.e. from access personnel for technology actions which [plaintiff] controlling to technology, installation and service only to companies outside centers)." Id. 32 In addition, allege[d] prices, sending requests, of golf ''none ha[d] foreclosing less qualified licensing the entertainment In contrast, this case has advanced well past the pleading stage, and the record demonstrates that JELD-WEN's conduct after the CMI Acquisition amounts to considerably more than just ^^threats of monopolistic behavior." Indeed, Steves has presented evidence creating a genuine dispute of fact as to whether it suffered antitrust injury when JELD-WEN gave notice of termination of the Supply Agreement. Accordingly, Steves might have injury the suffered the present antitrust Golf plaintiff could not even plead. that SureShot Steves has therefore met its burden in proving that its future damages claim is ripe for presentation to the jury. C. Divestiture Claim Section 16 of the Clayton Act allows private parties to obtain injunctive relief ''against threatened loss or damage by a violation of the antitrust laws." 15 U.S.C. seek injunctive relief under [Section] 16, § 26. "[I]n order to a private plaintiff must allege threatened loss or damage 'of the type the antitrust laws were designed to prevent makes defendants' Colorado, U.S. at Inc., 489). acts 479 U.S. and that unlawful.'" 104, 113 flows Carqill, (1986) from that which Inc. v. Monfort (quoting Brunswick, of 429 The injunctive relief authorized by this statute may include an order requiring the acquiring company to divest the assets of the acquired firm, private party. even when the plaintiff is a See California v. Am. 33 Stores Co., 495 U.S. 271, 295-96 (1990) . However, ^^equitable defenses laches . . . may protect consummated transactions attacks by private parties." Id. at 296. Steves' divestiture claim under because laches applies here, Count such as from belated JELD-WEN argues that One must be dismissed and because Steves has failed to show any threatened antitrust injury from the CMI Acquisition. 1. Laches ^^Laches proving imposes '^(1) defense is on the defendant lack of diligence by the party against whom the asserted, and (2) prejudice to the party asserting the defense.'" White v. Daniel, (quoting Costello v. The defense 909 F.2d 99, United States, "generally applies plaintiff who has unreasonably ''claims the ultimate burden of where a defendant 365 U.S. to (4th Cir. 1990) 265, preclude 'slept' is 102 282 (1961)). relief for a on his rights," barring prejudiced by a plaintiff's unreasonable delay in bringing suit after the plaintiff knew of the Co. , defendant's 639 F.3d Microsoft Corp., laches violation." 111, 121 PBM (4th 444 F.3d 312, Prods., Cir. 325 LLC 2011); v. see (4th Cir. defendant" (internal also 2006) involves an "equitable balancing of a with prejudice to a Mead Johnson Kloth & v. (noting that plaintiff s quotations delay omitted)). JELD-WEN contends that the undisputed evidence establishes that Steves unreasonably delayed suit after it became aware that the CMI Acquisition might violate Section 34 7, and that the delay harmed JELD-WEN because it completely integrated CMI's operations into its own business following the merger. As the defense Court of laches circuits." Steves 3d 537, NV/SA, Co., 545 623 Inc. has has F.3d Taleff v. (N.D. Cal. Supp. 2d 1235 2017) Cir. Inc., 392 1172-73 those cases Cal. Ginsburg v. InBev Midwestern Mach. 265, Cir. 1122-25 Corp., JELD-WEN that (8th 116 F. relies on of extreme remedy, Rather, the relevant question is whether JELD-WEN has shown that JELD-WEN points fact 277 2d 1118, Tech. 2000)). the Supp. several as But F. Supp. Autonomous (C.D. here. 828 F. in other 252 2010); F.3d equitable claims Inc., (citing (8th v. ''the antitrust JELD-WEN, Sw. Airlines Co., Garabet recognized, bar v. Va. Airlines, 2011); 1159, Inc. (E.D. 1229, Nw. 2004); been used to & Sons, & n.7 V. previously out, is divestiture not pertinent is an here. there is no genuine dispute about the reasonableness of Steves' delay or the prejudice to JELD-WEN. The that evidence burden. intensive The in the record application analysis. See shows of White, that laches 909 JELD-WEN is F.2d has generally at 102 not a met fact- (''[WJhether laches bars an action depends upon the particular circumstances of the case."). And here, to of both Steves' prongs delay, Acquisition it would the is unresolved factual questions remain as laches unclear have inquiry. when First, Steves anticompetitive 35 with respect believed that effects, the given to CMI the possibility that doorskin prices and protected by the Supply Agreement. 121. Moreover, quality might See PBM Prods., Second, dispute resolution delay, procedure see White, of prejudice is uncertain, integrating these 639 F.3d at under initiating the that Agreement. even assuming JELD-WEN's burden is lower in light of the length of Steves' of been evidence suggests that Steves acted promptly once it learned of JELD-WEN's anticompetitive conduct, requisite have issues the degree as the parties dispute the costliness JELD-WEN's are 909 F.2d at 102, and unresolved, CMI's summary operations. judgment on Given the that basis of laches is inappropriate. 2. Threat of Antitrust Injury Of still course, must be to able prevail to on its demonstrate divestiture "a claim, significant Steves threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.'' Zenith Steves argues that its filing suit within the Clayton Act's four-year statute of limitations for damages actions is relevant to this factor. It cites a recent Supreme Court case, Petrella V. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), as holding that laches cannot be applied when a plaintiff has filed suit within the limitations period imposed by a statute. Id. at 1977. Even if that holding applies to Clayton Act claims, the fouryear statute of limitations applies to Section 4 damages claims, not Section 16 divestiture claims. See 15 U.S.C. § 15(b). Although JELD-WEN may be right that the consummation of the merger is sufficient prejudice to implicate laches, the cost of any divestiture order is still relevant to the Court's balancing of the equities. See Ginsburg, 623 F.3d at 1235-36. 36 Radio I, 395 U.S. 1170 ("Section cognizable in antitrust future requires equity . . a threatened . proximately {internal This doorskin assertions supply fails regarding that once for its the Steves' potential itself is CMI that are Just as Acquisition likely with to by has that from Steves contractual same reasons injury because an JELD-WEN can obtain relationship as JELD-WEN's claim. could already or Section summary the JELD-WEN's be prevented evidence by of Steves' a genuine sides—about whether anticompetitive effects Moreover, evidence continue Steves' preclude divestiture on both caused recur. 4 See damages judgment on there is supra Section claim, these Steves' II.A. factual Section 16 claim. Count Four JELD-WEN also moves for summary arguing that it does not present a by injury omitted)). damages future mistaken, disagreement—supported III. or loss resulting quotations ability to do either is disputed. disputes 2d at efforts to find another doorskin supplier or manufacture doorskins the Supp. ends. argument contention 116 F. Steves cannot do so because its speculative claims JELD-WEN Steves' see also Garabet, injury are belied by evidence alternative with 16 violation.'' asserts that of at 130; Article III because the judgment Count Four, case or controversy required termination 37 on date of the Supply Agreement is Declaratory the facts having not show Ross V. Reed, is judgment U.S.C. § 2201, is 28 substantial legal warrant Zwickler, A declaratory Act, ""'^a adverse to there dispute. Judgment reality V. in the issuance 719 F.2d 689, 394 no U.S. 694 103, controversy Agreement because, of a {1969)). about the 1983) if parties immediacy declaratory {4th Cir. 108 between sufficient of the only proper controversy, interests, under and judgment.'" {quoting Golden JELD-WEN contends termination date of notwithstanding its previous position, agrees that the termination date is September 10, that 2021, the it now and that it will supply Steves with doorskins until that date. However, current recently disputes stance as about prevent March the summary 2015, credibility judgment JELD-WEN termination date under the on asserted of JELD-WEN's Count that Supply Agreement was Four. the As proper ambiguous, and reserved the right to argue that the Agreement terminated on the original December 31, 2019 date, rather than seven years after JELD-WEN gave notice of termination—that is, ECF No. position 452-64 has (Under changed Seal) and it f 13. JELD-WEN believes that September 10, now the claims later 2021. that date its is correct. But where a defendant seeks to moot a claim through its voluntary conduct, it absolutely clear it bears the '''heavy burden'" of "'ma [king] [to the court] that the allegedly wrongful behavior could not reasonably be expected to recur.'" Friends of 38 the Earth, Inc. v. 167, 189 (2000) Export Ass^n, Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. (quoting United States v. Concentrated Phosphate 393 U.S. 199, 203 (1968)). JELD-WEN has done nothing to convince the Court that its apparent change of heart is genuine beyond uncontroverted insufficient fact to Accordingly, listing in the its satisfy termination motion. This JELD-WEN's date minimal as an step is substantial burden. JELD-WEN's motion will be denied to the extent that it seeks summary judgment on Count Four. CONCLUSION For MOTION the FOR foregoing PARTIAL reasons, SUMMARY PLAINTIFF STEVES AND SONS, denied, except as to Steves' under Count trial in the matter of One, the DEFENDANT JUDGMENT INC.'S ON JELD-WEN, COUNTS COMPLAINT I INC.'S AND (ECF No. IV 375) was future lost profits damages claim validity of which the context of JELD-WEN's motion Court for decided judgment as law. I t is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: February OF 2018 39 at a

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