Florida Antitrust Litigation Defendants Enter Spirited Motion To Dismiss

Defense attorneys in In Re Florida Cement and Concrete Antitrust Litigation have moved to dismiss the prospective class-action case


Sources: CP staff; U.S. District Court for the Southern District of Florida, Miami Division

Defense attorneys in In Re Florida Cement and Concrete Antitrust Litigation have moved to dismiss the prospective class-action case, contending: PlaintiffsÌ claims are based on a fundamental misconception of substantive antitrust law and relevant pleading standards. The case stems from late-2009 complaints alleging a price-fixing conspiracy and market-allocation conspiracy from 2000Ò2009.

Consolidated complaints entered in January on behalf of Direct Purchaser and Indirect Purchaser classes of plaintiffs seek treble damages, injunctive relief and recovery of legal fees. They name as defendants American Cement LLC, Cemex Inc., Eastern Cement Corp., Florida Rock Industries, Lafarge North America, Lehigh Hanson Inc., Oldcastle Inc., Suwannee American Cement, Titan America and Votorantim Cementos North America. Defense attorneys open their 102-page Motion to Dismiss observing, Plaintiffs allege these companies–despite their different economic interests, varying corporate structures and sizes, dissimilar service areas and diverse products–agreed upon and successfully implemented a conspiracy covering every aspect of their business and sustained that conspiracy for at least a decade through changing ownerships and roller-coaster markets, all while maintaining strict secrecy.

Loaded with references to 80 years of Supreme Court and Federal court rulings surrounding Sherman and Clayton acts, the defense motion challenges plaintiffsÌ claims; absence of claims citing damage plaintiffs incurred from alleged violations; and, allegations of activity prior to October 2005, based on federal and state statutes of limitations. The document examines raw material and finished product pricing dynamics, noting that plaintiffs rely on purported consciously parallel behavior, including cement and ready mixed concrete price increases certain defendants instituted in summerÒfall periods of 2006 and 2008, as evidence of anticompetitive actions.

Defense counsel also cites the Supreme Court’s view that conscious parallelism is to be expected in concentrated commodity industries like those alleged by plaintiffs and does not amount to Sherman Act violation. The high court, attorneys add, recently emphasized that allegations of parallel business conduct coupled with bare assertions of conspiracy will not suffice to state a claim under the Sherman Act. That argument is the motion’s first of numerous references to Bell Atlantic Corp. v. Twombly, a 2007 ruling where the Supreme Court set a high threshold of plausibility for plaintiff claims in antitrust cases.

A schedule issued in late-March, including a potential jury trial target of April 2012, suggests ample time for the court’s Motion to Dismiss review. Û Don Marsh