Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D. Mass.: Massachusetts state law claim dismissed over jurisdictional deficiency, (Jan 29, 2014)

By Jeffrey May, J.D.

In an action against polystyrene packaging producers for conspiring to boycott a recycling business method for polystyrene food service products, a claim for violations of the Massachusetts Consumer Protection Act (Mass. Gen. Laws Chapter 93A) that was “primarily derivative of the Sherman Act claim” was dismissed on jurisdictional grounds. The federal district court in Boston dismissed the claim without prejudice because the plaintiff, Evergreen Partnering Group, Inc., failed to set out sufficient facts to surpass the threshold of the “primarily and substantially” jurisdictional requirement of Chapter 93A (Evergreen Partnering Group, Inc. v. Pactiv Corp., January 28, 2014, Stearns, R.).

To maintain a Chapter 93A action, the actions constituting the alleged unfair method of competition or the unfair or deceptive act or practice had to have occurred “primarily and substantially” within Massachusetts, the court explained. The defendants pointed out that, in over 30 pages and 75 paragraphs, the Second Amended Complaint (SAC) barely mentioned Massachusetts and failed to identify a single deceptive act or practice or “dominant event” that was alleged to have occurred in Massachusetts.

Further, while Evergreen was incorporated in and maintained its principal place of business in Massachusetts, its only functioning commercial facility was located in Georgia, and the brunt of the acts that Evergreen identifies as having been anticompetitive were alleged to have been felt primarily in the southeastern United States and in California.

Evergreen failed to identify a cluster of facts that might in their totality pin the center of gravity of the Chapter 93A claim in Massachusetts or to point to a dominant event that occurred within the state. The dominant event underlying the SAC was the hatching of the alleged antitrust conspiracy at a trade association subsidiary meeting; however, Evergreen did not allege that the meeting occurred in Massachusetts, the court noted. Moreover, the fact that Evergreen ultimately suffered financial losses in Massachusetts would not support jurisdiction.

The case is No. 1:11-cv-10807-RGS.

Attorneys: Maxwell M. Blecher, Donald R. Pepperman, and Jordan L. Ludwig (Blecher & Collins, P.C.) for Evergreen Partnering Group, Inc. Richard E. Bennett (Michienzie & Sawin LLC) for Pactiv Corp. Danielle M. McLaughlin (Nixon Peabody LLP) for Genpak, LLC. Jennifer Janeira Nagle (K & L Gates LLP) for Solo Cup Co.

Companies: Evergreen Partnering Group, Inc.; Pactiv Corp.; Genpak, LLC; Solo Cup Co.

Cases: Antitrust StateUnfairTradePractices MassachusettsNews