DOMESTIC DRYALL ANTITRUST LITIGATION MDL No.

162 Pages·2016·0.68 MB·English

by  Selby Brown

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: DOMESTIC DRYALL MDL No. 2437
ANTITRUST LITIGATION 13-MD-2437
THIS DOCUMENT RELATES TO:
All Direct Purchaser Actions
Judge Michael M. Baylson
All Indirect Purchaser Actions United States District Ct Judge
MEMORANDUM RE: DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
I. Introduction ............................................................................... 1

II. Procedural History ...................................................................... 4

III. Plaintiffs’ Allegations in Amended Complaints ............................. 6

IV. Discovery................................................................................... 8

V. Settling Defendants .................................................................... 9

VI. Motions for Summary Judgment ................................................. 10

A. American ............................................................................. 11

B. National .............................................................................. 13

C. Lafarge................................................................................ 15

D. PABCO. .............................................................................. 16

E. CertainTeed ......................................................................... 17

VII. Summary Judgment Standard ..................................................... 18

VIII. Legal Analysis in Oligopoly Cases ............................................. 20

A. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp. ......... 24

B. Petruzzi’s IGA Supermarkets Inc. v.
Darling-Delaware Co. Inc. ................................................... 25

C. In re Baby Food Antitrust Litig. ............................................ 27

D. In re Flat Glass Antitrust Litig. ............................................ 28

E. In re Chocolate Confectionary Antitrust Litig. ....................... 30

IX. Undisputed Background Facts .................................................... 31

A. Wallboard Industry Background ............................................ 31

1. Market Share .......................................................... 32

2. Demand ................................................................. 33
3. Capacity ................................................................ 34

4. Job Quotes ............................................................. 34

B. Trade Association Membership & Meetings ........................... 35

X. Bourjaily and Application of the Co-Conspirator Hearsay
Exception ................................................................................. 37

A. Brief History of the Co-Conspirator Exception ....................... 38

B. Impact of Federal Rules of Evidence ..................................... 39

C. Bourjaily Ends the Rule Against Bootstrapping ...................... 41

D. Admissibility of Hearsay Statements in Antitrust Suits Under
the Co-Conspirator Exception Post-Bourjaily ......................... 44

1. Big Apple BMW, Inv. v. BMW of N. Am., Inc. ................ 44

2. In re Flat Glass Antitrust Litig. ................................... 47

E. Role of the Co-Conspirator Exception in this Case ................. 49

XI. Chronology of Material Facts .................................................... 50

A. February – October 2011 ...................................................... 51

B. 2012 Activity ....................................................................... 73

XII. Evidentiary Findings Pursuant to Fed. R. Evid. 104 .................... 91

A. Parties’ Statements ............................................................... 92

B. Business Records ................................................................. 92

C. Co-Conspirator Statements & Bourjaily ................................. 93

XIII. Plaintiffs’ Theory of the Drywall Conspiracy.............................. 97

A. Timing and Similarity of Defendants’ Announcements
Related to Elimination of Job Quotes and the 2012 and
2013 Price Increases ............................................................. 98

1. Pricing Practices Prior to Fall 2011 .................................. 99
2. Price Increase and Elimination of Job Quotes
Effective January 2012 .................................................. 100

a. American Announcement ........................................... 100

b. USG Announcement .................................................. 102

c. National Announcement ............................................. 103

d. CertainTeed Announcement ....................................... 103

e. Lafarge Announcement .............................................. 104

f. TIN Announcement ................................................... 104

g. PABCO Announcement .............................................. 104

h. Implementation & Results .......................................... 105

3. Events Leading up to the 2013 Price Increase .................. 106

a. Pricing Guidance Following the Drake Group
Meeting .................................................................... 107

b. Fall 2012 Pricing Announcements .............................. 108

B. Intercorporate Communications ........................................... 110

1. Keith Metcalf’s April and Early September
Communications ............................................................ 111

2. September L&W Phone Calls .......................................... 113

3. PABCO & American Phone Call ..................................... 115

4. National’s Reference to “[V]erbal [A]greements for a
[L]arge [P]rice [I]ncrease in 2013” ................................. 117

C. Communications with Research Analysts ............................. 118

1. Analyst Background Information .................................... 119

2. Legal Viability of Plaintiffs’ Conduit Theory .................. 120

a. Authority Supporting Plaintiffs’ Conduit Theory ......... 121
b. Authority Undermining Plaintiffs’ Conduit Theory ...... 123

3. Evidence Allowing Inferences of Defendants’ Using Analysts As
Conduits ....................................................................... 124

a. National Signaling Through Thompson
and Longbow? .......................................................... 124

b. Lafarge Signaling Through Longbow? ........................ 128

D. Defendants’ Non-Price Conduct ...................................... 131

1. Limiting Supply ................................................... 132

a. Limiting Supply Prior to 2012 Increase ............. 132

b. Limiting Supply Prior to 2013 Increase ............. 134

2. Declining to Compete for Customers ...................... 135

XIV. Analysis – Consideration of Plus Factors .................................. 138

A. Motive ........................................................................... 139

B. Actions Against Self-Interest .............................................. 140

C. Traditional Conspiracy Evidence ......................................... 145

1. American .................................................................. 147

2. National ................................................................... 148

3. PABCO .................................................................... 149

4. Lafarge .................................................................... 150

5. CertainTeed .............................................................. 150

D. Conclusion ........................................................................ 154
I. Introduction
In fall 2011, several U.S. gypsum wallboard manufacturers announced
substantial changes to their pricing, ending a long-standing pricing practice and
scheduling a very large price increase to commence in January 2012 and to be
effective for the entire year. Then, in fall 2012, these manufacturers again
announced similar price increase to take effect in January 2013. In this
multidistrict litigation (“MDL”), Plaintiffs allege that the Defendants’ 2012 and
2013 price increases and other changes in pricing practices were the result of an
agreement, in violation of federal and state antitrust laws.
Currently before the Court are four motions for summary judgment:
Defendants’ Joint Motion for Summary Judgment (ECF 206), Defendant
CertainTeed’s Motion for Summary Judgment (ECF 207-08), Defendant
Lafarge’s Motion for Summary Judgment (ECF 204), and Defendant PABCO’s
Motion for Summary Judgment (ECF 205). For the reasons that follow, the court
GRANTS the Motions for Summary Judgment as to CertainTeed and DENIES
the Motions for Summary Judgment as to American, National, Lafarge, and
PABCO.
At the outset of these consolidated cases, the Court convened a pretrial
conference on September 18, 2013 to discuss pretrial issues including discovery
and initial pleadings. Defendants’ counsel indicated that it was not their
intention to file Rule 12 motions, although their clients strenuously disputed the
truth of the allegations against them. Eventually, a consensus was reached
among counsel and the Court that discovery would be initially limited to
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whether there was an agreement between any Defendants in violation of
Sherman Act § 1. (ECF 64). Thus, the Court postponed discovery on issues such
as class action, damages, antitrust injury, etc.
By and large, discovery proceeded without any need for intervention.
There was substantial production of documents by Defendants, and a deposition
program was initiated and completed.
Following the close of discovery, Defendants, as planned, filed motions
for summary judgment. As detailed below, each Defendant has supported its
motion for summary judgment by declarations and deposition testimony by their
officers and managers involved with the pricing of their drywall products. These
testimonial materials assert that there was no agreement between their employer
and any other Defendant.
Against this forceful show of denial, Plaintiffs have come forward with
detailed facts that Plaintiffs assert show a genuine dispute that would allow a
jury to find that there was an agreement by all of Defendants concerning prices.
Included within the factual material are excerpts from documents and
testimony by the two third-party research organizations that had been
subpoenaed and provided documents and deposition testimony, Longbow
Research (“Longbow”) and Thompson Research Group (“Thompson”).
As required by the Court’s practice order, Defendants have supported
their motions for summary judgment with statements of undisputed facts.
Plaintiffs have come forward with responses to many of these assertions,
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claiming there are disputed facts, and have added additional facts to which
Defendants have responded.
As of result of this mélange of factual materials, the Court believes that
the “core facts” of the case, as contained in documents produced by all of
Defendants, or third parties, along with deposition testimony by their officers
and managers, are largely undisputed. The task of the court is to determine
whether inferences favorable to Plaintiffs can be drawn from these factual
materials.
In proceeding towards the appropriate analysis, the Court believes that
there are three issues that must first be analyzed in detail, as follows:
First, the Court will review the history of the drywall industry in the
United States, which satisfies the accepted definition of an oligopoly, and the
drywall manufacturers’ efforts to raise prices following the well-documented
housing slump in 2008-2010.
Second, the Court will provide the legal analysis of the decision by the
Supreme Court in the Matsushita case and a number of Third Circuit opinions
analyzing antitrust claims involving oligopoly industries such as drywall. The
Court must recognize the unique economic discipline that applies to price fixing
allegations against companies in an oligopoly setting, and the required
hesitation, if not disinclination, to find any type of conspiracy from merely
ambiguous evidence, but also, a duty to consider what courts have called “plus
factors.”
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Third, the Court will review the evidence rules concerning alleged co-
conspirator statements.
In making this review and analysis, the Court recognizes that this is not
an occasion for fact finding. Defendants’ motions assert their innocence;
Plaintiffs assert their liability with equal vigor. The Court’s role is not take
sides, find facts, or determine liability or innocence, but only to determine
what, if any, inferences can be drawn consistent with the governing case law on
antitrust price fixing and the rules of evidence on allegedly co-conspirator
statements.
After laying the groundwork on the industry background and legal
principles, the Court will embark upon a chronological review of the factual
materials, highlighting those facts that Plaintiffs have asserted are the strongest
towards showing an agreement. The Court will then explain its decision as to
admissibility of hearsay evidence, and separately, the ability of the jury to draw
reasonable inferences of agreement based on the record in this case.
II. Procedural History
In April 2013, the Judicial Panel on Multidistrict Litigation ordered
consolidation in this District before the undersigned of various drywall antitrust
cases from this and other Districts for pretrial proceedings. The original
Defendants were U.S. domestic drywall manufacturers, namely CertainTeed
Gypsum (“CertainTeed”), United States Gypsum Company (“USG”) and its
parent USG Corporation (“USG Corp.”), New NGC, Inc. (“National”), LaFarge
North America Inc. (“LaFarge”), American Gypsum Company LLC
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(“American”) and its parent company Eagle Materials Inc. (“Eagle”), TIN, Inc.
(“TIN”), and PABCO Building Products, LLC (“PABCO”).
By May 2013, multiple putative class actions had been consolidated in the
MDL. These actions had been filed on behalf of proposed classes of Plaintiffs
who purchased drywall either directly or indirectly from Defendants.1 The direct
purchaser actions alleged violations of § 1 of the Sherman Act, 15 U.S.C. § 1;
the indirect purchaser actions sought injunctive relief through § 16 of the
Clayton Act, 15 U.S.C. § 26, based on allegations of violations of § 1 of the
Sherman Act, 15 U.S.C. § 1, and sought damages based on alleged violations
various of state laws.2 The Court has jurisdiction over the federal law claims by
virtue of 28 USC §§ 1331, 1337. The Court has jurisdiction over the Indirect
Purchasers’ state-law claims through 28 U.S.C. § 1367 and 28 U.S.C. § 1332
(“CAFA”).
By Order dated May 7, 2013 (ECF 11), this Court consolidated, for
pretrial purposes, (1) all pending indirect purchaser actions and any indirect
purchaser actions filed thereafter (“Indirect Purchaser Action”) and (2) all
pending direct purchaser actions and any direct purchaser actions filed

1 The Direct Purchaser Actions were comprised of those who purchased
wallboard directly from the manufacturers; the Indirect Purchaser Actions were
comprised of those who purchased wallboard through a retailer, contractor, or
other intermediary, and whose claims are based on state laws.

2 At least one case has been consolidated with this MDL but is not at issue
today because it was filed as an individual action as opposed to a class action.
Ashton Woods Holdings LLC v. USG Corp., 15-1712 (E.D. Pa.) (also known as
“Home Builders Action”). The cases at issue today are only those that were filed
as class actions.

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