Antitrust Law Daily Wrap Up, ANTITRUST—WDPa: Decision to Allow Flat Glass Purchasers’ Price Fixing Claims to Proceed Not Certified for Immediate Appeal, (Jan 11, 2013)

By Jeffrey May, J.D.

The federal district court in Pittsburgh has refused to certify for immediate appeal its order denying a motion for summary judgment in favor of defending flat glass manufacturers in an action maintained by a group of flat glass purchasers that opted out of a price fixing class action (In re: Flat Glass Antitrust Litigation (II), January 10, 2013, Ambrose, D.).

In a November 1 decision (2012-2 Trade Cases ¶78,115), the court allowed the claims, which were based on conscious parallelism, coupled with several “plus factors,” to proceed, despite the “weakness” of the plaintiffs' case. The court remarked that finding for the defendants as a matter of law would “impermissibly invade the province of the jury.”

The defendants sought certification for the limited question of whether the correct standard was applied for summary judgment in a horizontal price fixing case that was not based on direct evidence of conspiracy. However, the case did not present the exceptional circumstances necessary to justify certification pursuant to 28 U.S.C. §1292.

The court rejected the assertion that it “came down on the wrong side of the conflicting and confusing precedent, and concluded that the existence of evidence equally consistent with lawful conduct and conspiracy precludes summary judgment.” The law in the Third Circuit was not unsettled. The court went on to say that it “did not merely find evidence equally applicable to lawful and unlawful conduct.” The court explicitly found that the “balance tip[ped] against summary judgment.”

The case is No. 8-180, MDL No. 1942.

Christopher G. Emch (Foster Pepper PLLC) for JELD-WEN, INC. George E. McGrann (Schnader, Harrison, Segal & Lewis) for AGC AMERICA, INC.

Cases: Antitrust PennsylvaniaNews