Wednesday, February 17, 2010

Price Fixing Claims Against Urethane Producers Take Shape

This posting was written by Darius Sturmer, Editor of CCH Trade Regulation Reporter.

In multidistrict litigation consisting of numerous putative class action lawsuits alleging a conspiracy among urethane chemical producers to fix prices of polyether polyol products, 56 opt-out plaintiffs sufficiently alleged a federal antitrust claim based on charges of conspiratorial conduct prior to 1999, the federal district court in Kansas City, Kansas, has ruled.

The court declined, however, to exercise supplemental jurisdiction over claims that were brought by European plaintiffs under European law and barred claims against two individual executives under the statute of limitations. The defendants’ motions to dismiss the claims were, therefore, granted in part and denied in part.


The complaining purchasers corrected the pleading deficiencies that led to dismissal of their claims of a conspiracy existing prior to 1999 (2009-2 TRADE CASES ¶76,754), the court decided. In support of these pre-1999 conspiracy allegations, the plaintiffs’ second amended complaints included allegations of meetings and communications, involving specific participants and locations, in furtherance of the alleged conspiracy.

Rejected was an argument that the plaintiffs failed to plead sufficient non-conclusory facts to state a plausible claim for the pre-1999 period because they did not allege the particular dates, participants, products discussed, markets discussed, agreements reached, and actions taken for each meeting or communication alleged for that time period, or the specific way in which all of the meetings and communications were connected. Requiring such allegations would impose an overly strict pleading standard, the court said.

Statute of Limitations

The court refused to dismiss the pre-1999 claims as time-barred on the ground that the complaining purchasers had failed to sufficiently allege affirmative acts of fraudulent concealment for that time period. The plaintiffs could rely on their allegations of false and pretextual announcements and letters by the defendants during that time period—such as a statement that prices were being increased because of rising costs—as acts of fraudulent concealment. They did not have to plead with particularity why the alleged misrepresentations were actually false, such as by alleging facts showing that costs were not in fact rising. Nevertheless, the plaintiffs did so plead by claiming that the price increases actually resulted from the alleged price fixing conspiracy instead of from rising costs.

The plaintiffs’ allegations of secret meetings, communications, and agreements to conceal the conspiracy also sufficed as affirmative acts of concealment, the court said. Claims against two individuals—who were executives for one of the chemical producing companies—were time-barred, however, because fraudulent concealment of the alleged conspiracy could not toll the limitations period sufficiently to render the claims timely, the court found.

The statute of limitations, as it related to the individual defendants, began to run, at the latest, when the plaintiffs admittedly discovered the existence of a claim against the individuals’ employer—November 23, 2004, the date upon which the first polyether polyols class action had been filed. This was approximately four years and four months before the individuals were first made parties to the suit.

The court rejected the plaintiffs’ argument that their claims should have been tolled for more than three more years because they did not discover that they had claims against the individuals until December 2007. Once the plaintiffs discovered in November 2004 that the employer was a member of the alleged conspiracy, their exercise of due diligence should have led them to investigate and discover the identity of additional individual defendants who acted on behalf of the employer, the court explained.

Four years was ample time to conduct that inquiry. As the plaintiffs themselves conceded, they actually did discover that they had claims against the individuals well within that window, the court noted. The plaintiffs offered no explanation for their subsequent failure to add those individuals as defendants to the suit at that time or within the year that followed.

European Law Claims

Finally, the court chose not to exercise supplemental jurisdiction over claims brought by 26 European plaintiffs under European law. Litigation of the claims would raise novel and complex issues of European law, such as the issue of cross-jurisdictional tolling from the filing of a class action complaint and the issue of the effect of some nations’ joining the European Union (EU) only after the defendants’ price fixing conduct, the court said.

The court added that while it could determine any question of European law to the best of its ability, it would do so without the benefit of review by and instruction from the European Court of Justice and the European Commission. Given the state of European antitrust law, such law would be more ably interpreted and applied in Europe, in the court's view.

In addition, resolution of the European law claims in the United States would undermine principles of international comity. Dismissal of the claims would also have been appropriate under the doctrine of forum non conveniens, the court concluded.

The decision is In re: Urethane Antitrust Litigation, 2010-1 Trade Cases ¶76,903.

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