District Judge Denies Motion to Dismiss Anti-Trust Suit Filed Against Glass Manufacturers

A U.S. District Court judge today denied several glass manufacturers' motion to dismiss a class-action anti-trust suit filed against them alleging that they agreed to raise and fix prices "through a combination of collusive energy surcharges and price increases." The glass manufacturers included in the suit are AGC America Inc., AGC Flat Glass North America Inc., Guardian Industries Corp., Pilkington North America Inc., Pilkington Holding Inc. and PPG Industries.

According to court documents, the manufacturers involved argued that the complaint should be dismissed "because the various allegations therein are insufficient under the pleading standard … to infer the existence of an agreement or conspiracy to restrain trade."

Specifically, today's motion notes, the defendants argue that they did not make any sort of agreement, that the allegations of parallel energy surcharges are "insufficient"; that the allegations of parallel price increases by some defendants are insufficient; that the allegations of participation in trade associations are insufficient; that the allegations of defendants' profitability are insufficient; that the allegations of miscellaneous suspicious statements are insufficient; and that the allegations regarding "European misconduct" are insufficient.

In addition, PPG specifically argues that it should be removed from the case, as it was not named in the 2007 EU report.

The judge points out however, that the complaint alleges that "there was a history of inability to raise and maintain prices" prior to the period covered by the complaint, July 1, 2002, through December 2006. He also notes that the complaint alleges that there was a history of varying surcharges by region up until June 2002, but afterwards this variation ceased.

"Rather, the CAC [Consolidated Amended Complaint] alleges an agreement that existed for over thirty months beginning in June of 2002, by raising prices by identical percentages and charging energy surcharges in virtual lockstep while providing customers with identical charts and justifications for the same, until February of 2005, when the European Commission launched raids upon the European construction flat glass market. Thereafter, the Defendants did not engage in lockstep parallel conduct," the judge writes. "Thus, contrary to Defendants' position, this is not a case where Plaintiffs rely solely on the decision of the European Commission to assert a domestic conspiracy or a solely parallel conduct case. Therefore, dismissal of the CAC is not warranted based on Defendants' EC allegation arguments and arguments of parallel conduct."

The judge also notes that while membership in trade associations does not necessarily suggest conspiracy, that "the meeting dates provide the Defendants with notice of specific time frames and manner of the alleged agreement."

Finally, as to PPG's request to be removed from the case, the judge writes, "It is of no moment that PPG did not participate in the European conspiracy. The CAC is not simply asserting a theory of 'since it happened there, it happened here.' To the contrary, as set forth above, the CAC sets forth sufficient allegations, when read in toto, to set forth a claim."

Named plaintiffs in the case include Colonial Glass Solutions, Burhans Glass, John Draper (of Draper's Auto Glass), Perilstein Glass Corp., Diversified Glass Services, Gilkey Window Co., Maran-Wurzell Glass & Mirror, E & G Auto Parts Inc., Superior Glass Inc., Frank's Glass Inc., Greenwood Glass Co., Public Supply Co., Raymond's Glass Inc., Bailes Granite & Marble, Thermo Twin Industries Inc., Sellmore Industries Inc., Interstate Building Materials, Wally's Glass Service Inc., Head West Inc., D & S Glass Services Inc., G&C Auto Body Inc., Girard Glass Corp., Fast Glass Service, Century Bathworks Inc. and No Job Too Small Inc.

Several similar suits were filed in late 2007 and early 2008, after the European Union (EU) levied fines on several glass manufacturers for alleged price-fixing practices (CLICK HERE for related story). In June 2008, pproximately 20 of these suits were consolidated in the Western District, where today's decision was made (CLICK HERE for related story).

A status conference regarding the case is scheduled for March 9. Chief District judge Donetta Ambrose is presiding over the case.

CLICK HERE for full text of today's order.

Need more info and analysis about the issues?
CLICK HERE to subscribe to USGlass magazine.