Antitrust Law Daily Wrap Up, TOP STORY—WDPa: Flat Glass Purchasers’ Evidence Suggesting Price Fixing Conspiracy Suffices to Send Suit to Trial, (Nov 2, 2012)

By E. Darius Sturmer, J.D.

A group of flat glass purchasers that opted out of a class action antitrust suit against manufacturers of the products sufficiently established that the manufacturers conspired to fix prices and allocate business in restraint of trade, the federal district court in Pittsburgh has ruled (In re: Flat Glass Antitrust Litigation (II), November 1, 2012, Ambrose, D.). Although the circumstantial evidence of conspiracy that the purchasers proffered was “weak,” the court remarked, finding for the defendants as a matter of law would “impermissibly invade the province of the jury.” Therefore, the defendants’ motion for summary judgment was denied.

Taken together, the complaining purchasers’ showing of conscious parallelism, coupled with several “plus factors” purportedly tending to exclude the possibility that the alleged anticompetitive conduct was undertaken independently, was enough to support an inference of antitrust conspiracy, the court found. This was so even though “much of [the] evidence, and the inferences arising there from, [were] weak.” This evidence included communications with customers and isolated instances of purported predictions of price increases that, particularly when analyzed piecemeal, did not tend to exclude independent behavior.

However, the plaintiffs’ evidence also included the conclusions of an expert witness that the defendants engaged in at least five coordinated supracompetitive price and surcharge increases and that the industry “was in a collusive regime.” Defendants proffered their own expert’s testimony and pointed to other, more supportive testimony from the plaintiffs’ expert. Nevertheless, inconsistencies between an expert’s report and deposition testimony, and evidence discrediting his opinion, were rarely grounds for summary judgment, the court stated.

The court noted that the nature of the flat glass industry made price fixing feasible, and that the defending manufacturers made no assertion that the industry became less susceptible to non-competitive conduct during the time of the conspiracy alleged by the purchasers.

Moreover, several of the defendants’ communications pointed to by the purchasers potentially reflected the defendants’ impressions that pricing was low, and reflected weakening economic indicators, declining glass prices, and overall price reductions. Later communications might suggest oversupply and excess capacity, the court added. Thus, the communications ran contrary to the defendants’ position that prices were driven upward by increased manufacturing costs and the growing economy, as well as increased demand for flat glass and increases in capacity utilitization.

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

Brian D. Clark (Lockridge Grindal Nauen P.L.L.P.) for Diversified Glass Services, Inc. Christopher T. Casamassima (Kirkland & Ellis, LLP) for Guardian Industries Corp.

MainStory: TopStory Antitrust PennsylvaniaNews