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In Re: Flat Glass Antitrust Litigation (Ii v. Agc America

November 1, 2012


The opinion of the court was delivered by: Donetta W. Ambrose Senior Judge, U.S. District Court

This document relates to:



This action followed Plaintiff's opt-out of a class action against flat glass manufacturers, which in turn followed a European Commission investigation against flat glass manufacturers in Europe. Here, Plaintiff brings suit for violation of the Sherman Act, 15 U.S.C. § 1. The action surrounds conspiracy to fix prices, and allocate business, in restraint of trade. Defendants have filed a Motion for Summary Judgment, contending that Plaintiff has failed to produce evidence of conspiracy, as opposed to lawful parallel conduct, between 2002 and 2005.*fn1 In turn, Plaintiff contends that they have adduced sufficient evidence to overcome summary judgment. Also pending is Plaintiff's Rule 56(d) declaration, seeking an opportunity to depose one of Defendant's affiants.

I have carefully reviewed the parties' voluminous evidentiary submissions, the history of this and related legal proceedings, and both parties' well-researched and thorough briefs. Upon such review, I conclude that Defendants' Motion for Summary Judgment must be denied. Accordingly, Plaintiff's Motions for oral argument and Rule 56(d) discovery will be denied as moot.




Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. V. Stauffer Chem . Co., 898 F. 2d 946, 949 (3d Cir. 1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States v. Onmicare, Inc., 382 F. 3d 432 (3d Cir. 2004). Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party=s case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 265 (1986).


In addition to applying traditional summary judgment principles, courts have developed particular approaches to Rule 56 motions in antitrust cases. To survive a motion for a summary judgment in this context, a plaintiff must produce evidence "'that tends to exclude the possibility' that the alleged conspirators acted independently." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (U.S. 1986). "Another and equivalent way to put this is that [plaintiff] must present evidence that would enable a reasonable jury to reject the hypothesis that the defendants foreswore price competition without actually agreeing to do so." In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 661 (7th Cir. 2002). These formulations, in this case, thus place squarely before the Court what has been termed "the oligopoly problem" -- which, generally speaking, refers to the difficulties inherent in legal evaluation of tacit coordination in an oligopoly.*fn2

Moreover, in cases such as the one at bar, certain inferences may not be drawn from circumstantial evidence. Nelson v. Pilkington PLC, 385 F. 3d 350, 357 (3d Cir. 2004) ("Flat Glass I"). What constitutes a "reasonable inference" in an antitrust case, sufficient to overcome summary judgment, is limited. Superior Offshore Int'l, Inc. v. Bristow Group, No. 11-3010, 2012 U.S. App. LEXIS 15539, at **10-11 (3d Cir. July 27, 2012). Courts, however, face a gray area in determining what inferences are appropriate, as acceptability varies with the plausibility of plaintiff's theory, and the danger associated with the inferences. Id. at *11. Therefore, "[i]f the factual context renders [the plaintiff's] claim implausible--if the claim is one that simply makes no economic sense--[a plaintiff] must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary." Matsushita, 475 U.S. at 587.

Moreover, I must be mindful that "Matsushita . . . did not introduce a special burden on plaintiffs facing summary judgment in antitrust cases." Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (1992). Instead, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." Id. at 468. As one court explained:

Fundamentally, "tends to exclude" does not mean "excludes." Matsushita requires only that, construing the plaintiff's evidence in the light most favorable to it as the nonmoving party, a reasonable fact-finder could find that the defendants could not have also been engaging in independent, permissible conduct. .Where the plaintiff's theory is "plausible," . then the task of weighing "competing permissible inferences remains within the province of the fact-finder at a trial." Although "summary judgment is a valuable means for avoiding unnecessary trials . . . it should not be regarded as a substitute for trial." At most, the court's role in examining the factual ...

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