Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Homebuilders’ denied interlocutory appeal in drywall price fixing suit, (Aug 22, 2016)

The federal district court in Philadelphia denied certification of an order for interlocutory appeal of its dismissal of homebuilders’ claim that at an alleged price fixing conspiracy by drywall manufacturers continued after January 1, 2013. In denying the motion, the court determined that the statutory prerequisites for interlocutory appeal had not been satisfied (In re Domestic Drywall Antitrust Litigation, August 18, 2016, Baylson, M.).

After their claim that an alleged price fixing conspiracy between certain drywall manufacturers continued past January 1, 2013, through a price increase that went into effect in January 2015, was dismissed, homebuilder plaintiffs moved to certify their June 22, 2016, Order for Interlocutory appeal.

The homebuilder plaintiffs argued that the court relied on two questions of law in its decision granting the defendants’ motion to dismiss. The court, however, disagreed with their characterization of its decision.

The court agreed with the homebuilder plaintiffs’ first assertion that a court must analyze a plaintiffs’ allegations of an antitrust conspiracy as a whole. However, it found that it had done so when, in viewing the homebuilder plaintiffs’ assertion as a whole, it determined that they failed to plausibly allege that a conspiracy continued after 2013.

The court determined that the homebuilder plaintiff’s second assertion was also not implicated by the court’s decision because, rather than deciding that the filing of a single class action rendered the post-2013 allegations implausible, it concluded that the homebuilder plaintiffs’ sparse contentions were insufficient to allege a continuing conspiracy.

The court noted that, even if the statutory prerequisites for interlocutory appeal had been satisfied, it would decline to exercise its discretion to certify the homebuilder plaintiffs’ interlocutory appeal order because its February 2016 summary judgment order in the direct and indirect purchaser actions of the case was a much stronger candidate for interlocutory appeal and the Third Circuit still declined review.

The case is No. 2:15-cv-1712.

Attorneys: Brian Russell Strange (Strange & Butler) for Ashton Woods Holdings LLC, Beazer Homes Holdings Corp. and D.R. Horton Los Angeles Holding Co., Inc. Steven E. Bizar (Dechert LLP) for USG Corp. and New NGC, Inc. Jeffrey A. Jaeckel (Morrison Foerster LLP) for Continental Building Products, Inc.

Companies: Ashton Woods Holdings LLC; Beazer Homes Holdings Corp; D.R. Horton Los Angeles Holding Co., Inc.; USG Corp.; New NGC, Inc.; Continental Building Products, Inc.

Cases: Antitrust PennsylvaniaNews