Glass Manufacturers' Motion for Plaintiffs to Produce Sales Data
in Anti-Trust Suit Denied
January 29, 2010
The U.S. District Court for the Western District of Pennsylvania
has denied a motion made by several glass manufacturers who are
the defendants in an ongoing anti-trust suit. They had filed a motion
in early December seeking for the court to compel some of the glass
shops who filed the suit to provide their own sales data for the
period of time covered by the suit (July 2002-December 2006). (CLICK
HERE for related story.)
The judge who made the ruling, Donetta W. Ambrose, wrote the following
in his denial of the motion.
"I am not persuaded
that such information is relevant
or necessary to determine class certification," Ambrose says.
AGC Flat Glass North America, Guardian Industries, Pilkington North
America and PPG Industries are the defendants in the suit, in which
a range of glass businesses across the United States have alleged
that they engaged in a conspiracy to fix prices; a great deal of
the suit focuses on fuel and energy surcharges set forth by the
manufacturers during the period of July 2002 through December 2006.
The manufacturers in question had argued that by requesting the
"named plaintiffs'" sales data, "it [would] shed
light both on whether the Named Plaintiffs can adequately represent
the class and on whether the Named Plaintiffs can show impact common
to the class."
"Here, any of the Named Plaintiffs who were able to successfully
mark up, or at least pass on, Defendants' price increases or energy
surcharges to their customers may actually have benefits from Defendants'
allegedly wrongful conducts-or at least have been unharmed,"
read this original motion. "While this may not be a defense
to liability in an individual suit under the Sherman Act, it raises
the key question of whether a Named Plaintiff who benefited from
the Defendants' price increase can represent the interests of an
absent class member who did not."
Among the items plaintiffs claim was the result of price-fixing
were fuel surcharges they faced "from at least July 1, 2002,
and continuing through at least December 31, 2006."
However, in their brief in support of the denied motion seeking
the plaintiffs' sales data, the defendants had argued that "plaintiffs'
sales prices may, in some or all instances, be based on a 'cost-plus'
model, such that the plaintiff may actually profit from the prices
or surcharges about which they complain in this case."
The data they had requested included documents that showed the date
of each sale, the type of product sold, the quantity purchased,
the gross and net price, the type and amount of any surcharges,
the identity of the manufacturer and distributor, and the corporate
entity that made the purchase, according to court documents.
In addition, the defendants had requested "all documents relating
to any energy or natural gas surcharges" charged to their customers.
The original motion was made on December 7, and the denial was filed
on January 6.
This particular suit is the result of the consolidation of several
others, the first of which was filed in December 2007, shortly after
the European Union levied fines on several European glass manufacturers
and European subsidiaries of glass manufacturers for allegedly engaging
in a conspiracy to fix prices. (CLICK
HERE for related story.)
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