Antitrust Law Daily Wrap Up, ANTITRUST—E.D. La.: Late request to depose pool product manufacturer executive denied, (Mar 24, 2014)

By Jeffrey May, J.D.

Plaintiffs in an antitrust action against the country’s largest pool products distributor and the three largest pool product manufacturers were not entitled to take the deposition of an officer of one of the defending manufacturers after the deadline for completing all fact and class certification discovery. The federal district court in New Orleans concluded that the direct purchaser plaintiffs (DPPs) did not show good cause for their request to modify the court’s scheduling order to take the executive’s deposition after the discovery deadline (In re: Pool Products Distribution Market Antitrust Litigation, March 21, 2014, Vance, S.).

The DPPs claimed that the testimony of Scott Ferguson—an officer of defendant manufacturer Zodiac Pool Systems, Inc.—was highly relevant to the “core issue” of whether the defending manufacturers refused to deal with distributors other than defendant distributor Pool Corporation. Ferguson had purportedly circulated a memo about the distributor application process that conflicted with the company’s prior assertions that there were no formal processes or requirements to purchase products from or become a customer of Zodiac. According to the DPPs, they did not become aware of the significance of Ferguson’s testimony until after they deposed another Zodiac employee who was Vice President of Sales about the distributor-selection process. That was shortly after the discovery deadline.

The DPPs did not provide a convincing explanation for their failure to notice Ferguson’s deposition before the discovery deadline, in the court’s view. This failure weighed heavily on the court’s determination, it was noted. Moreover, the testimony sought was of moderate importance. The potential for prejudice to Zodiac if Ferguson’s deposition was allowed to proceed also weighed against modification of the scheduling order.

The case is MDL No. 2328.

Attorneys: Russ M. Herman (Herman, Herman, Katz & Cotlar, LLP) for Direct Purchaser Plaintiffs’ Liaison Counsel. Thomas J. H. Brill (Law Office of Thomas H. Brill) for Indirect Purchaser Plaintiffs’ Liaison Counsel. Arnold Levin (Levin, Fishbein, Sedran & Berman), Daniel W. Krasner (Wolf, Haldenstein, Adler, Freeman & Herz, LLP), Matthew B. Moreland (Becnel Law Firm, LLC) and Robert N. Kaplan (Kaplan Fox & Kilsheimer LLP) for Plaintiffs’ Steering Committee. William Bernard Gaudet (Adams & Reese, LLP) for Defendants’ Liaison Counsel. David H. Bamberger (DLA Piper, LLP) for Defendants’ Lead Counsel. Wayne J. Lee (Stone, Pigman, Walther, Wittmann, LLC) for Manufacturer Defendants’ Liaison Counsel.

Companies: Pool Corp.; Zodiac Pool Systems, Inc.

Cases: Antitrust LouisianaNews