MMA Opp to MTD (Redacted)

7/30/2019 MMA Opp to MTD (Redacted)

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FILED UNDER SEAL

CIVIL ACTION NO. 06-md-1768

THIS DOCUMENT CONTAINS CONFIDENTIAL AND HIGHLY CONFIDENTIAL INFORMATION

SUBJECT TO THE PROTECTIVE ORDER APPROVED BY THE COURT BY ORDER DATED

JANUARY 10, 2007

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_______________________________________

)

IN RE: )

METHYL METHACRYLATE (MMA) ) Judge Timothy J. Savage

ANTITRUST LITIGATION )

) 06-md-1768

_______________________________________ ))

THIS DOCUMENT RELATES TO: )

ALL DIRECT PURCHASER ACTIONS )

_______________________________________ )

DIRECT PURCHASER PLAINTIFFS MEMORANDUM

OF LAW IN OPPOSITION TO DEFENDANTS

MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

Anthony J. Bolognese H. Laddie Montague, Jr.Joshua H. Grabar Ruthanne GordonJohn G. Narkin Charles P. GoodwinBOLOGNESE & ASSOCIATES LLC Candice J. Enders1500 JFK Blvd., Suite 320 BERGER & MONTAGUE, P.C.Philadelphia, PA 19102 1622 Locust StreetTelephone: (215) 814-6750 Philadelphia, PA 19103Facsimile: (215) 814-6764 TELEPHONE: (215) 875-3000

FACSIMILE: (215) 875-4604Michael D. HausfeldRobert G. Eisler Steven A. KannerSeth R. Gassman William H. LondonCOHEN MILSTEIN Douglas A. Millen

HAUSFELD & TOLL, PLLC FREED KANNER1100 New York Avenue, N.W. LONDON & MILLEN, LLCWest Tower, Suite 500 2201 Waukegan Road, Suite 130Washington, DC 20005 Bannockburn, IL 60015Telephone: (202) 408-4600 Telephone: (224) 632-4500Facsimile: (202) 408-4699 Facsimile: (224) 632-4521

Interim Co-Lead Counsel for Direct Purchaser Plaintiffs


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TABLE OF CONTENTS

I. ARGUMENT OVERVIEW.................................................................................................2

II. FACTUAL SUMMARY .....................................................................................................7

III. ARGUMENT.......................................................................................................................9

A. The Legal Standard for Assessing the Sufficiency of a Price-Fixing Complaint ....9

B. The SAC Satisfies Twombly ..................................................................................13

C. Plaintiffs Have Adequately Alleged A Conspiracy To Fix MMA Prices..............17

1. Parallel Price Increases ..............................................................................17

2. Collusive Communications Among Defendants........................................18

a. Defendants Unlawful Communications Concerning Price...........20

b. Defendants Improper Communications ConcerningProduction, Capacity and Other Proprietary Matters.....................23

D. Plaintiffs Have Adequately Alleged A Conspiracy To Fix Prices ofAcrylic Products.....................................................................................................25

E. The Complaint Adequately Alleges A Conspiracy Throughout TheClass Period ...........................................................................................................28

F. Plaintiffs Adequately Alleged Fraudulent Concealment .......................................29

G. ICIs Separate Motion to Dismiss Should be Denied ............................................30

IV. CONCLUSION..................................................................................................................35

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TABLE OF AUTHORITIES

CASES PAGE(S)

American Copper and Brass, Inc. v. Halcor S.A.,

494 F. Supp.2d 873 (W.D. Tenn. 2007).......................................................................19

Apex Oil v. Di Mauro,822 F.2d 246 (2d Cir. 1987)...................................................................................20, 25

Armco Steel Co., LP v. CSX Corp.,790 F. Supp. 311 (D.D.C. 1991)..................................................................................32

In re Aspartame Antitrust Litig.,2007 U.S. Dist. LEXIS 16995 (E.D. Pa. Jan. 18, 2007)..............................................30

In re Automotive Refinishing Paint Antitrust Litig.,2004 U.S. Dist. LEXIS 29160 (E.D. Pa. Oct. 29, 2004)..............................................28

Bell Atlantic Corp. v. Twombly,127 S. Ct. 1955 (2007).........................................................................................passim

Behrend v. Comcast Corp.,2007 WL 2221415 (E.D. Pa. July 31, 2007)12

Big Apple BMW v. BMW of N. Am.,974 F.2d 1358 (3d Cir. 1992).......................................................................................14

Biovail Corp. Int'l v. Hoechst Aktiengesellschaft,49 F. Supp.2d 750 (D.N.J. 1999).................................................................................17

In re Bulk Popcorn Antitrust Litig.,783 F. Supp. 1194 (D. Minn. 1991).............................................................................19

In re Catfish Antitrust Litig.,908 F. Supp. 400 (N.D. Miss. 1995)................................................................31, 32, 34

Continental Ore Co. v. Union Carbide & Carbon Corp.,370 U.S. 690 (1962)...........................................................................................6, 17, 29

Davis v. Grusemeyer,996 F.2d 617 (3d Cir. 1993).........................................................................................35

In re Elec. Carbon Prods. Antitrust Litig.,333 F. Supp.2d 303 (D.N.J. 2004)...............................................................................34

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In re Elevator Antitrust Litig.,502 F.3d 47 (2d Cir. 2007)...........................................................................................28

Emerson Elec. Co. v. Le Carbone Lorraine, S.A.,500 F. Supp.2d 437 (D.N.J. 2007).........................................................................30, 34

Fears v. Wilhelmina Model Agency, Inc.,2004 U.S. Dist. LEXIS 4502 (S.D.N.Y. March 23, 2004) ...................................24, 25

In re Flat Glass Antitrust Litig.,385 F.3d 350 (3d Cir. 2004).......................................................................15, 18, 20, 21

Flying J Inc. v. TA Operating Corp.,2007 WL 4253765 (D. Utah Nov. 2, 2007).................................................................12

General Leaseways, Inc. v. Natl Truck Leasing Assn.,

744 F.2d 588 (7th Cir. 1984)... 23

General Refractories Co. v. Stone Container Corp.1999 WL 14498 (N.D. Ill. Jan. 8, 1999)..26

In re High Fructose Corn Syrup Antitrust Litig.,295 F.3d 651 (7th Cir. 2002) .................................................................................16, 18

Hyde v. United States,225 U.S. 347 (1912).....................................................................................................32

Hyland v. Homeservices of America, Inc.,2007 WL 2407233 (W.D. Ky. Aug. 17, 2007) ............................................................12

In re Hypodermic Prods. Antitrust Litig.,2007 WL 1959225 (D.N.J. June 29, 2007)..................................................................12

In re Intel Corp. Microprocessor Antitrust Litig.,496 F. Supp. 2d 404 (D. Del. 2007).............................................................................12

Keystone Res., Inc. v. AT&T,646 F. Supp. 1355 (W.D. Pa. 1986).............................................................................33

Krehl v. Baskin-Robbins Ice Cream Co.,664 F.2d 1348 (9th Cir. 1982) .....................................................................................19

In re Linerboard Antitrust Litig.,203 F.R.D. 197 (E.D. Pa. 2001)...................................................................................23

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In re Linerboard Antitrust Litig.,305 F.3d 145 (3d Cir. 2002)...................................................................................25, 26

In re Linerboard Antitrust Litig.,504 F. Supp. 2d 38 (E.D. Pa. 2007) .......................................................................12, 23

Monsanto Co. v. Spray-Rite Serv. Corp.,465 U.S. 752 (1984).....................................................................................................16

Morton's Market, Inc. v. Gustafson's Dairy, Inc.,198 F.3d 823 (11th Cir. 1999) .....................................................................................33

Nat'l Music Ctrs. of Am., Inc. v. Kimball Int'l, Inc.,1990 U.S. Dist. LEXIS 17910 (M.D. Pa. Aug. 28, 1990) ...........................................33

Neitzke v. Williams,

490 U.S. 319 (1989).....................................................................................................10

In re OSB Antitrust Litig.,2007 WL 2253419 (E.D. Pa. Aug. 3, 2007) .12, 14, 24

Phillips v. County of Allegheny,515 F.3d 224 (3d Cir. 2008).....................................................................5, 6, 10, 11, 16

Pinker v. Roche Holdings Ltd.,292 F.3d 361 (3d Cir. 2002).........................................................................................12

Pinkerton v. United States,328 U.S. 640 (1946).....................................................................................................31

Rosefielde v. Falcon Jet Corp.,701 F. Supp. 1053 (D.N.J. 1988).................................................................................25

In re Rubber Chemicals Antitrust Litig.,504 F. Supp.2d 777 (N.D. Cal. 2007) ..........................................................................34

SmithKline Beecham Corp. v. Apotex Corp.,383 F. Supp.2d 686 (E.D. Pa. 2004) ............................................................................17

Smith v. Berg,247 F.3d 532 (3d Cir. 2001).........................................................................................31

Stand Energy Corp. v. Columbia Gas Transmission Corp.,380 F. Supp. 2d 748 (S.D. W. Va. 2005).....................................................................33

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United States v. Swiss Valley Farms Co.,912 F. Supp. 401 (C.D. Ill. 1995) ..........................................................................33, 34

United States v. Waldrop,786 F. Supp. 1194 (M.D. Pa. 1991).............................................................................32

In re Uranium Antitrust Litig.,480 F. Supp. 1138 (N.D. Ill. 1979) ..............................................................................28

UtiliMed, Inc. v. Becton, Dickinson & Co.,2007 WL 2914462 (D. Minn. Oct. 3, 2007) ................................................................12

In re Vitamins Antitrust Litig.,2001 WL 1049433 (D.D.C. June 20, 2001).................................................................28

STATUTES & MISCELLANEOUS

15 U.S.C. 1........................................................................................................................7

Fed.R.Civ.P. 8(a)(2).......................................................................................................... 10

Fed.R.Civ.P. 12(b)(6).....................................................................................................5, 10

Phillip E. Areeda,Antitrust Law, 1407 (2006) ...............................................................24

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Plaintiffs Borden & Remington Corporation, ConMed Corporation, Dental Models &

Designs, Inc., Innovative Hightech Lighting Corporation (f/k/a Inhee Lighting Corporation), Just

Hardware, Inc., and Plastics Color & Compounding, Inc. (collectively, Plaintiffs) respectfully

submit this memorandum in opposition to the Motion to Dismiss the Direct Purchasers Plaintiffs

Second Amended Class Action Complaint (SAC) and the Indirect Purchaser Plaintiffs Second

Amended Consolidated Complaint, filed by the Arkema defendants (Arkema),1 the Degussa

defendants (Degussa)2 and the Lucite defendants (Lucite)3 (collectively, Defendants) and

the Motion to Dismiss Plantiffs Second Amended Complaint for Failure to State a Claim,

submitted by Defendant Imperial Chemical Industries plc. (together with its American subsidiary

ICI Acrylics, Inc., ICI).

1The Arkema defendants are Arkema Inc. (f/k/a Atofina Chemicals, Inc.) and its French parent

corporation, Arkema France. Plaintiffs have submitted a separate response in opposition to theSupplemental Memorandum of Arkema Inc. and Arkema France in Support of DefendantsMotion to Dismiss the Direct Purchaser Plaintiffs Second Consolidated Amended Class ActionComplaint and the Indirect Purchaser Plaintiffs Second Amended Consolidated Complaint.

2The Degussa defendants are Evonik Degussa Corporation, its German parent, Evonik Degussa

GmbH, two United States manufacturing subsidiaries, Rhm Americas LLC and CYROIndustries, a German manufacturing subsidiary selling into the United States, Rhm GmbH &Co. KG, and its former joint-venture partner, Cytec Industries Inc.

3 The Lucite Defendants are Lucite International Inc., Lucite International Ltd. (British parent ofLucite International, Inc.), ICI Acrylics, Inc. (a former corporation which maintained itsprincipal place of business at the same location where Lucite International, Inc. now maintainsits primary facility), and Imperial Chemical Industries plc (ICI) (former British parent of ICIAcrylics, Inc.). Lucite International Ltd. is alleged to have dominated and controlled LuciteInternational Inc. (SAC 43-44). Imperial Chemical Industries plc is alleged to havedominated and controlled ICI Acrylics, Inc. (SAC 37-39). To the extent that ICI and ICIAcrylics have raised separate arguments, based on their sale of the Lucite operations in 1999,they will be referred to as the ICI Defendants. Plaintiffs have submitted a separate response inopposition to Defendant Lucite International Limiteds Motion to Dismiss the Complaints forLack of Personal Jurisdiction and Defendant Imperial Chemical Industries plcs Motion toDismiss Plaintiffs Second Amended Consolidated Class Action Complaints for Lack ofPersonal Jurisdiction.


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I. ARGUMENT OVERVIEW

On December 19, 2007, the Court entered an Order granting in part and denying in part

Defendants motion to dismiss Plaintiffs first Amended Class Action Complaint. The Court

held:

After the Amended Complaint was filed and after briefing on themotion to dismiss concluded, the Supreme Court issued itsTwombly decision, which clarified the standard for pleading aconspiracy in a claim that the defendants parallel business conductviolated 1 of the Sherman Act. Bell Atlantic Corp. v. Twombly,127 S. Ct. 1955, 1965-66 (2007). There is no longer any doubt thata mere allegation of parallel conduct is insufficient to allege aconspiracy to fix prices. The complaint must allege enough facts to

suggest the plausibility of an illegal agreement.Id. at 1965.

The Direct Purchaser Plaintiffs (DPPs) Amended Complaintdoes not allege enough facts to state a claim that is plausible on itsface.Id. at 1974. For example, it does not allege facts sufficient tosuggest: (1) collusive conduct concerning methyl methacrylate(MMA) other than an industry-wide parallel price increase; (2)any collusive conduct on the part of the defendants not named andimplicated by the European Commissions finding of collusion inthe European polymethyl methacrylate (PMMA) market; (3)industry-wide price increases of MMA and PMMA throughout theclass period; and (4) any conspiratorial meetings and/orcommunications regarding actions affecting United States MMAand PMMA prices.

On January 21, 2008, Plaintiffs filed the SAC, which included all of the facts identified

by the Court as necessary to state a claim that is plausible on its face. To accentuate the

additional facts provided in the SAC (which included confidential information that required its

filing under seal), Plaintiffs also submitted a Statement dated January 21, 2008 (Plaintiffs

Statement, Docket No. 131) that (1) specifically correlated the subject matter of the

amendments required by the Court with the SAC paragraphs satisfying the Courts requirements;

and (2) was accompanied by a highlighted, annotated copy of the SAC that also called special

attention to the additional facts furnished by Plaintiffs in response to the Courts December 19,

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2007 Order. A copy of Plaintiffs Statement is attached here as Exhibit A; a copy of the key

conspiracy-related allegations in the SAC is attached here as Exhibit B.

As Exhibits A and B attest, Plaintiffs have furnished the additional facts required by the

Court:

To satisfy the Courts demand for additional facts plausibly suggesting collusive

conduct concerning MMA other than an industry-wide parallel price increase, Plaintiffs alleged

that senior-level executives of Defendants engaged in frequent, private communications among

themselves concerning future pricing plans in the United States. These communications resulted

in understandings among Defendants about pricing, which were then implemented through

parallel price increase announcements. Defendants parallel price increase announcements were

issued in close temporal proximity to Defendants illicit communications regarding pricing.

(SAC 89) Plaintiffs also pleaded numerous instances in which Defendants exchanged

commercially sensitive, proprietary information regarding capacity (including capacity

utilization), production and future shutdowns. (SAC 90)

To satisfy the Courts demand for additional facts suggesting collusive conduct by

the Defendants not named in the European Commissions (E.C.) adjudication,4 Plaintiffs have

alleged detailed communications throughout the Class Period among the United States

Defendants regarding future pricing plans and other sensitive, proprietary information. (SAC

89, 90) Plaintiffs also pleaded several specific instances in which Defendants European-based

executives were integrally involved in meetings and communications where Defendants

4The SAC names as Defendants both European entities implicated in the E.C.s adjudication

finding collusion in the European market for PMMA and their United States affiliates. (Toeliminate any question raised by Defendants about the meaning of the term PMMA, theSAC employs the alternate expression Acrylic Products as a shorthand reference to the specificend-use applications at issue in this litigation. See SAC 7.c.)

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exchanged internal, confidential information relating to both the U.S. and European markets.

(SAC 84.a.-e.; 90.c., d. and f.)

To satisfy the Courts demand for additional facts plausibly suggesting industry-

wide price increases of MMA and Acrylic Products throughout the class period, Plaintiffs

identified (1) twelve coordinated and parallel MMA price increase announcements during the

period from early 1995 through late 2003 and (2) five coordinated and parallel Acrylic Products

price increase announcements between 1999 and 2003. (SAC 89.f., 92) Plaintiffs also

explicitly alleged that Defendants price-fixing conspiracy relating to MMA was intended to

and did have the effect of artificially inflating prices charged by defendants for Acrylic Products

because MMA is the key and essential ingredient for Acrylic Products, and it is the primary cost

driver for the price of Acrylic Products. (SAC 67, 87)

To satisfy the Courts demand for additional facts plausibly suggesting

conspiratorial meetings and/or communications regarding actions affecting United States MMA

and Acrylic Products prices, as discussed above, Plaintiffs alleged that senior-level executives of

Defendants engaged in numerous private communications among themselves concerning future

price increases. (SAC 89.a.-g.) Plaintiffs pleaded specific details regarding these

communications, including particular identification of the participants, their job titles, and the

date and method of communication. These communications facilitated understandings among

Defendants regarding pricing, which were effectuated through the lockstep price increase

announcements identified in paragraphs 89 and 92 of the SAC. (Id.)

UnderTwombly, allegations of parallel conduct, without more than a bare assertion of

conspiracy, do not supply facts adequate to show illegality under Section 1 of the Sherman

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Act.5 127 S. Ct. at 1966. To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a

complaint alleging price-fixing must contain (1) enough factual matter (taken as true) to suggest

that an [anticompetitive] agreement was made; (2) enough fact to raise a reasonable

expectation that discovery will reveal evidence of an illegal agreement; and (3) allegations

plausibly suggesting an unlawful agreement. Twombly, 127 S. Ct. at 1965-66;Phillips v. County

of Allegheny, 515 F.3d 224, 246 (3d Cir. 2008) (interpreting plausibility under Twombly).

Under this standard, a well-pleaded complaint may proceed even if it strikes a savvy judge that

actual proof of [facts necessary to prove an illegal agreement] is improbable, and that a recovery

is very remote and unlikely. Twombly, 127 S. Ct. at 1965 (citation omitted). As the Supreme

Court explained, we do not require heightened fact pleading of specifics, but only enough facts

to state a claim to relief that is plausible on its face.Id. at 1974.

By identifying specific communications in which Defendants privately discussed future

pricing of their products (as well as other proprietary production and supply information that

directly influence prices), the SAC alleges far more than merely parallel conduct that could just

as well be independent action (id. at 1966). It not only provides vastly more than the further

factual enhancement necessary to successfully nudge allegations of parallel conduct across

the line from conceivable to plausible (id. at 1974), it pleads particularized examples of

5 Plaintiffs detailed allegations in the SAC identifying specific communications amongDefendants about future price increases and related matters stand in glaring contrast to theallegations in Twombly itself, where the Supreme Court found that nothing contained in thecomplaint invests either the action or inaction alleged with a plausible suggestion of conspiracy,among other reasons, because the pleadings mentioned no specific time, place, or personsinvolved in the alleged conspiracies and the complaint furnishes no clue as to which of thefour [defendants] (much less which of their employees) supposedly agreed, or when and wherethe illicit agreement took place.Id. at 1970-71 and n.10.

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claims out of hand before this litigation has progressed beyond the point of threshold motions.

Because that is unfair and inconsistent with Twombly, the Court should enter an Order denying

Defendants motion and directing Defendants to proceed without further delay with merits

discovery.

II. FACTUAL SUMMARY

This case involves two closely related products: MMA and Acrylic Products. (See SAC

63, 64.) Defendants dominate and control the market for MMA, selling in excess of 87% of

the MMA sold in the United States merchant market. (SAC 65.c.) Defendants are also the

dominant manufacturers of Acrylic Products. (SAC 66.c.) MMA is the key ingredient used in

the production of Acrylic Products, and the price of MMA drives the price of Acrylic Products.

(SAC 67)

Plaintiffs allege that Defendants violated Section 1 of the Sherman Act, 15 U.S.C. 1, by

engaging in a conspiracy to artificially set prices, control output, and/or allocate markets and

customers for MMA and Acrylic Products. (SAC 103) Throughout the Class Period,

Defendants communicated with one another regarding future pricing plans in the United States

and these communications were followed in close temporal proximity by Defendants parallel

price increase announcements. For example:

A May 12, 1997 internal Degussa memorandum evidences knowledge of ICIs futureprice increase. It states, Our price increase on MMA will go out soon. ICI will alsoincrease by $0.03 per pound. Two days later, Defendant ICI issued a $0.03 priceincrease, and Defendant Degussa followed with its $0.03 price increase. (SAC 89.a.)

On December 1, 2000, Jim King of Defendant CYRO had a ten minute conversation withKevin Burgason of INEOS (predecessor to Defendant Lucite) to discuss INEOS recentprice increase of $0.04 per pound on MMA. Immediately after the conversation withBurgason, CYRO issued its own $0.07 MMA price increase. INEOS promptly amended

testimonial discovery has been taken on the merits of Plaintiffs claims. See SAC 84, PlaintiffsStatement at 2 n.2.

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its increase to correspond with CYROs $0.07 per pound. Atofina (predecessor toDefendant Arkema) issued its MMA price increase announcement shortly thereafter.(SAC 89.b.)

On March 4, 2002, CYRO MMA Manager Charles Walby had a telephone call with his

counterpart at Lucite, Jess Willard. During their conversation, they discussed their futurepricing plans. Lucites Willard confided to CYROs Walby that Lucite was thinking ofincreasing MMA prices by $0.06 per pound that quarter, and asked whether CYROwould support such an increase. Walby agreed that CYRO would support the priceincrease. Before CYRO and Lucite could implement their agreement, Rohm and Haasannounced an intervening $0.04 per pound MMA price increase, causing Defendants torevise their plan. Four days later, CYRO representatives spoke with Atofinarepresentatives about the same yet-to-be-announced price increase. Within days,Defendants CYRO, Atofina, and Lucite announced identical $0.04 per pound priceincreases on MMA, effective March 31, 2002 or April 1, 2002. (SAC 89.c.)

On August 1, 2002, Atofina met with CYRO executive Gene Gellman to discuss MMApricing plans. Soon thereafter, Atofina and CYRO announced that they were increasingMMA prices by either $0.05 or $0.06 per pound, respectively, each effective October 1,2002. Lucite also announced a $0.06 per pound increase in MMA prices, effectiveOctober 1, 2002. (SAC 89.e.)

On December 5, 2002, CYROs Jim King had a discussion with Lucites Kevin Burgasonregarding Lucites $0.06 per pound MMA price increase effective January 1, 2003.Burgason faxed King a copy of Lucites MMA price increase announcement. Withindays of this conversation, CYRO announced an MMA price increase that was identical inamount ($0.06 per pound), effective January 6, 2003. Atofina also issued a $0.06 per

pound MMA price increase effective January 1, 2003. (SAC 89.f.) Shortly afterDefendants MMA price increases took effect, Defendants announced parallel priceincreases for Acrylic Products effective March 3, 2003. The announcements for AcrylicProducts attributed the price increases to higher raw material costs (i.e., theconspiratorially imposed price increase for MMA, which is the key ingredient in AcrylicProducts). (Id.)

In addition to communications about pricing, Defendants exchanged other sensitive,

confidential information regarding capacity (including capacity utilization), production, and

future shutdowns. This is further evidence of a culture of collaboration among ostensible

competitors in the MMA and Acrylic Products industries in the United States.

For example, at a March 23, 1999 meeting, senior executives of ICI and CYRO revealed

information about their internal capacity utilization and agreed to exchange future shutdown

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information. (SAC 90.b.) Similarly, on September 27, 1999 CYRO executives Mitchell

Bowyer and Charles Walby met with ICI executives from the United States (Jess Willard) and

Europe (David Douglas) at a meeting of the European Petrochemical Association (EPCA). ICI

reported that it had plenty of capacity and suggested operating at reduced capacity until the

market is healthy. (SAC 90.c.)

Defendants Arkema and Lucite also participated in the exchange of confidential

information. CYRO and Elf Atochem (predecessor to Arkema) shared proprietary production

data at an April 4, 2000 meeting. (SAC 90.d.) In October 2002, Nicolas de Warren of Atofina

(another Arkema predecessor) attended a meeting with CYRO General Manager Mitchell

Bowyer and Thomas Mueller, head of Degussas German Methacrylates division, where de

Warren revealed that Atofinas European plant would be taking a major shutdown in May 2003.

(SAC 90.f.) On April 2, 2001, personnel from CYRO and INEOS (predecessor to Lucite)

discussed current capacity, plans to expand capacity, and INEOS scheduled shutdowns in late

April and September of 2001. (SAC 90.e.)

The foregoing allegations demonstrate that Defendants engaged in frequent

communications, reached understandings among themselves about pricing, implemented those

understandings through coordinated price increases, and discussed other sensitive, internal,

proprietary information regarding capacity (including capacity utilization), production, and

future shutdowns.

III. ARGUMENT

A. The Legal Standard for Assessing

the Sufficiency of a Price-Fixing Complaint

In Twombly, the Supreme Court granted certiorari to address the proper standard for

pleading an antitrust conspiracy through allegations of parallel conduct. 127 S. Ct. at 1963. The

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precise issue presented to the Court was whether a complaint that alleges certain parallel

conduct unfavorable to competition, absent some factual context suggesting agreement, as

distinct from identical, independent action may survive a motion to dismiss. Id. at 1961

(emphasis supplied).7

In considering this question, the Court disavowed any intent to create a heightened

pleading standard that requires detailed factual allegations in price-fixing cases. Id. at 1964,

1973 n. 14, 1974. As the Court explained, any such heightened pleading requirement must be

attained by the process of amending the Federal Rules and not by judicial interpretation. Id. at

1973 n.14 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).

The Supreme Court in Twombly also explicitly reaffirmed the continuing viability of

established standards for assessing the sufficiency of a complaint under Rules 8 and 12 of the

Federal Rules of Civil Procedure. The Court held that (1) Federal Rule of Civil Procedure

8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled

to relief, in order to give the defendant fair notice of what theclaim is and the grounds upon

which it rests (id. at 1964) and (2) Rule 12(b)(6) does not countenancedismissals based on

a judges disbelief of a complaints factual allegations. Id. at 1965 (quoting Neitzke v.

Williams, 490 U.S. 319, 327 (1989)).

Twombly expressly does not require heightened pleading for conspiracy cases. 127 S. Ct.

at 1974;Phillips, 515 F.3d at 233-34. Twombly does not require that reasonable inferences not

be drawn in the pleaders favor. 127 S. Ct. at 1965; Phillips, 515 F.3d at 231. In sum, Twombly

did not rewrite Rule 8 of the Federal Rules of Civil Procedure.

7 Here, Plaintiffs have not merely supplied a factual context, they have pleaded evidence ofagreement, complete with dates of communications and specific identification of participants.See SAC 89-90.

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The relevant standard adopted in Twombly is whether a claim for relief is plausible. Id.

at 1965-1966, 1968. That means there must be a factual context suggesting a right to relief

above the speculative level (id. at 1961, 1965) or a reasonable expectation that discovery will

reveal evidence of an illegal agreement.Id. at 1965. See alsoPhillips, 515 F.3d at 231-32, 234.8

The Third Circuit inPhillips distilled Twomblys teachings into three benchmarks against

which complaints are to be measured:

1. Plaintiffs must provide some factual allegations. Twombly prohibits a blanket

assertion of an entitlement to relief or a formulaic recitation of the elements of a cause of

action; these prohibitions are not violated if plaintiffs provide some factual allegation in the

complaint that affords defendants fair notice of the grounds on which the claim rests.

Phillips, 515 F.3d at 231, 233 (emphasis supplied).

2. Allegations are plausible if they suggest required elements of a cause of action.

[A] complaint may not be dismissed merely because it appears unlikely that the plaintiff can

prove those facts or will ultimately prevail on the merits. Id. at 231. Factual allegations of a

complaint, taken as true, raise a right to relief above the speculative level if they suggestthe

required elements of plaintiffs claim. Id. at 234-35 (emphasis supplied).

3. Plaintiffs are entitled to all reasonable inferences. [T]he notice pleading standard

of Rule 8(a)(2) remains intact. Id. at 233. Thus, [i]t remains an acceptable statement of the

[Rule 8(a) notice pleading] standard to say that the court must accept all factual allegations as

8 Under the Third Circuits interpretation ofTwombly, allegations are plausible and suggesta required element of a claim if, taking plaintiffs allegations as true and affording plaintiffs thebenefit of all reasonable inferences, the court finds that plaintiffs may well be able to provefacts that would satisfy elements of their claim. Id. at 237. Defendants contrary assertion thatPlaintiffs must demonstrate a reasonable likelihood that [they are] entitled to relief (Def. Mem.at 8) is refuted by the plain text of both Twombly andPhillips. (References to Def. Mem. are tothe Memorandum of Law in Support of Defendants Motion to Dismiss Direct PurchaserPlaintiffs Second Amended Consolidated Complaint, filed on March 7, 2008.)

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true, construe the complaint in the light most favorable to the plaintiff, and determine whether,

underany reasonable readingof the complaint, the plaintiff may be entitled to relief. Id. at

231 (emphasis supplied) (quotingPinker v. Roche Holdings Ltd., 292 F.3d 361, 374, n. 7 (3d Cir.

2002)).

Many district courts considering motions to dismiss antitrust claims subsequent to

Twombly have held that (1) allegations of parallel conduct remain significant in evaluating the

sufficiency of a price-fixing complaint and (2) in addition to allegations of parallel conduct,

plaintiffs must provide a factual context suggesting an unlawful agreement.9

By its explicit

9See, e.g., In re Linerboard Antitrust Litig., 504 F. Supp.2d 38, 60 (E.D. Pa. 2007) (Linerboard

II) (parallel conduct can be considered along with other conduct after Twombly;case arose inthe context of a summary judgment motion); In re OSB Antitrust Litig., No. 06-826, 2007 WL2253419, at *3 (E.D. Pa. Aug. 3, 2007) (OSB) (in alleging a price-fixing conspiracy,[p]laintiffs situate these allegations of parallel conduct in a context that suggests precedingagreement.); Behrend v. Comcast Corp., No. 03-6604, 2007 WL 2221415, at *2 (E.D. Pa. July31, 2007) (Twombly does not impose a probability requirement at the pleading stage; it simplycalls for enough fact to raise a reasonable expectation that discovery will reveal evidence ofillegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes asavvy judge that actual proof of those facts is improbable and that a recovery is very remote andunlikely.); see alsoIn re Intel Corp. Microprocessor Antitrust Litig., 496 F. Supp.2d 404, 408n.2 (D. Del. 2007) (Twombly requires application of a flexible plausibility standard); In reStatic Random Access Memory (SRAM) Litig., 2008 WL 426522, at *3 (N.D. Cal. Feb. 14, 2008)(complaint need only present a short and plain statement of the claim; detailed factual recitationsare unnecessary); Flying J, Inc. v. TA Operating Corp., No. 06-0030, 2007 WL 3254765, at *1(D. Utah Nov. 2, 2007), interlocutory appeal denied, 2007 WL 4165749, at *2 (D. Utah Nov.20, 2007) (Twombly imposed no heightened pleading standard; a short and plain statement of aclaim is still all that is needed); Trans World Technologies, Inc. v. Raytheon Co., No. 06-5012,2007 WL 5243941, at * 4 (D.N.J. Nov. 1, 2007) ([a]s long as the complaint alleges that thealleged co-conspirators had a plausible reason to participate in the conspiracy, the complaint issufficient); UtiliMed, Inc. v. Becton, Dickinson & Co., No. 06-2266, 2007 WL 2914462, at *1(D. Minn. Oct. 3, 2007) (Court in Twombly took issue with plaintiffs who alleged parallelconduct or conspiracy and little more); Hyland v. Homeservices of America, Inc., No. 05-0612, 2007 WL 2407233, at *3 (W.D. Ky. Aug. 17, 2007) (complaint suffices if [p]laintiffs hadalleged more than parallel business conduct and a bare assertion of a belief of a conspiracy);In re Hypodermic Prods. Antitrust Litig., No. 05-1602, 2007 WL 1959225, at *6, *8 (D.N.J.June 29, 2007) (liberal antitrust pleading standards apply after Twombly; allegations ofanticompetitive exclusive dealing arrangements stated a claim under Section One of the ShermanAct).

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terms, all that Twombly requires is that allegations of parallel conduct are placed in a context

that raises a suggestion of a preceding agreement. . . . 127 S. Ct. at 1966. The SAC more than

meets that standard.

B. The SAC Satisfies Twombly

As shown above in the Argument Overview, Factual Summary and in Exhibits A and B,

the SAC identifies many examples of anticompetitive communications in which Defendants

exchanged proprietary business information (1) for the purpose of coordinating future pricing of

their products; (2) concerning current and planned production levels, capacity, capacity

utilization and (3) concerning their internal organizational structure, including their sales staff.

10

The SAC also contains other allegations of fact that buttress the already strong

allegations evidencing that Defendants pricing for MMA and Acrylic Products was the result of

collusion. The SAC identifies specific economic characteristics of the MMA and Acrylic Product

markets that make them susceptible to anticompetitive coordination among ostensibly

competing producers, including: (1) the fungibility of the products; (2) Defendants collective

dominant share of the markets; (3) high barriers preventing new producers from entering the

markets; (4) lack of effective substitutes for the products; and (5) inelasticity of demand for the

products under normal competitive conditions. (SAC 65, 66) The SAC further alleges that

10 The SAC alleges that these improper anticompetitive communications in the United Stateswere consistent with the pattern of misconduct demonstrated by Defendants in Europe, where theE.C. adjudicated that Defendants effectuated an unlawful conspiracy to fix the prices of AcrylicProducts, inter alia, through the exchange of confidential market information which wascapable of influencing independent commercial decisions taken by competitors, such aschanges in production capacities and capacity utilization. See SAC 88, quoting the E.C.sMay 31, 2006 adjudication at 19-20. As other specific allegations of the SAC confirm,Defendants European personnel were themselves directly involved in the collusivecommunications occurring among their U.S. counterparts. See SAC 84; 90.c., d., and f.

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the MMA and Acrylic Products markets are globally integrated and that European and American

prices for the products are linked by the potential for arbitrage. (SAC 68)

Given these precise and factually explicit allegations, the SAC cannot be fairly described

as consisting of only an allegation of parallel conduct and a bare assertion of conspiracy.

Twombly, 127 S. Ct. at 1966. On the contrary, Plaintiffs vivid allegations provide much more

than the minimal further factual enhancement needed to nudge allegations of parallel

conduct across the line from conceivable to plausible.Id. at 1974. Indeed, it is hard to imagine

any more certain indication of a price-fixing conspiracy than systematic furtive discussions in

which competing producers exchange their most confidential pricing and production plans.

Discovery will confirm the existence of this conspiracy and reveal its salient details.

Left with no legitimate means of evading the consequences of their wrongdoing,

Defendants now attempt to use their Rule 12(b)(6) motion as a backdoor way to try this case on

the pleadings, without affording Plaintiffs any chance to obtain discovery. But Twombly does not

require Plaintiffs to prove the existence of the alleged conspiracy at this stage of the litigation,

nor does it require Plaintiffs to demonstrate that the existence of the conspiracy is probable.

Twombly, 127 S. Ct.at 1966. See also OSB, 2007 WL 2253419, at *5 (Twombly does not require

plaintiffs to prove their allegations before trial). On the other hand, Twombly does obligate the

Court to accept the allegations of the SAC as true and to consider them in their totality within the

factual context alleged by Plaintiffs. Twombly,127 S. Ct. at 1973 n.14. Yet, unaccountably,

Defendants overarching objection to the SAC is that Plaintiffs allegations do not exclude the

possibility that Defendants parallel price increases were the result of lawful independent

conduct an impossibly elevated standard of proof foreign even to the summary judgment stage

of litigation. See, e.g., Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1365 (3d Cir. 1992)

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(reversing summary judgment for defendant even though the quantity and balance of evidence

was in defendants favor because a plaintiff need not eliminate all possible independent

justifications by the [defendant] [so that] only evidence of concerted action would be left in the

record).

Even in a Rule 56 context in which plaintiffs evidence, after the conclusion of

discovery, is scrutinized closely for the existence of a material fact that can be presented to a jury

at trial, evidence of a price-fixing conspiracy that precludes summary judgment may involve

customary indications of traditional conspiracy, or proof that the defendants got together and

exchanged assurances of common action or otherwise adopted a common plan even though no

meetings, conversations, or exchanged documents are shown. In re Flat Glass Antitrust

Litig., 385 F.3d 350, 361 (3d Cir. 2004) (citation omitted, emphasis supplied). In this case,

Plaintiffs have identified specific anticompetitive meetings, conversations, or exchanged

documents by participant, date, subject matter and location, in many cases in close temporal

relation to Defendants coordinated price-increase announcements. Evidence of these meetings,

combined with other relevant economic evidence demonstrating that the MMA and Acrylic

Products industries are conducive to oligopolistic price fixing (id. at 360), is so substantial that

it could survive any motion for summary judgment that Defendants may eventually file.

As it is now, Defendants ignore the pleading standards articulated in Twombly and

ensuing cases. Defendants improperly debate the meaning of facts presented in the SAC, and

they ask the Court to reject those well-pleaded allegations solely on the basis of their self-serving

interpretations of some of the underlying documents supporting these allegations. For example,

Defendants urge this Court to disregard the pricing communication allegations set forth in the

SAC and to accept their own whitewashed construction of the facts, which they inaccurately

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contend show only that a few defendants on a few occasions had bilateral discussions about

MMA price announcements that were already public and in the marketplace. Def. Mem. at 3.

Similarly, Defendants try to justify their unlawful exchanges of confidential proprietary

information about proposed supply cutbacks and plant shutdowns by mischaracterizing them as

communications about legal, pro-competitive purchase, sale and swap transactions among

Defendants. Def. Mem. at 21. Not only is there no credible basis for Defendants assertions, it

is indisputable that these kinds of arguments are entirely inappropriate in the context of a motion

to dismiss, where all reasonable inferences must be drawn in favor of the non-moving party.

Phillips, 515 F.3d at 231, 237.

Leaving aside Defendants attempt to avoid damaging facts by mischaracterizing them as

benign, the SAC alleges something far more than a few bilateral discussions about already

public MMA price increases. See Def. Mem. at 3. Notwithstanding the paucity of discovery to

date, the SAC describes (with evidentiary detail unnecessary under Twombly) many private

discussions about pricing among high-level executives, both immediately before and

immediately after Defendants announced lockstep parallel price increases. SAC 89.11

Another tactic employed by Defendants one more commonly found in summary

judgment motions rejected by the courts12

is to urge the Court to parse each pleaded fact

11 These pricing discussions strongly suggest, if not outright prove, that Defendants had aconscious commitment to a common scheme designed to achieve an unlawful objective. SeeUnited States v. Beaver, 515 F.3d 730, 738 (7th Cir. 2008) (quotingMonsanto Co. v. Spray-RiteServ. Corp., 465 U.S. 752, 764 (1984)).

12 See, e.g., In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655, 661 (7th Cir.

2002) (The second trap to be avoided in evaluating evidence of an antitrust conspiracy forpurposes of ruling on the defendants motion for summary judgment is to suppose that if nosingle item of evidence presented by the plaintiff points unequivocally to conspiracy, theevidence as a whole cannot defeat summary judgment . . . . The question is simply whether this

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separately and to reject such fact if, in Defendants jaundiced estimation, it is insufficient in

isolation to support an inference of conspiracy. Defendants skewed method of analysis is

impermissible under the Supreme Courts decision in Continental Ore Co. v. Union Carbide &

Carbon Corp., 370 U.S. 690, 699 (1962), which held:

[P]laintiffs should be given the full benefit of their proof withouttightly compartmentalizing the various factual components and wipingthe slate clean after scrutiny of each. The character and effect of aconspiracy are not to be judged by dismembering it and viewing itsseparate parts, but only by looking at it as a whole.

This authoritative statement of the law should guide this Courts consideration of

Defendants motion to dismiss. SeeSmithKline Beecham Corp. v. Apotex Corp., 383 F. Supp.2d

686, 699-700 (E.D. Pa. 2004) (Although Continental Ore was decided in the context of a

motion for a directed verdict after trial, courts have applied the same reasoning when considering

motions to dismiss antitrust complaints); Biovail Corp. Intl v. Hoechst Aktiengesellschaft, 49 F.

Supp.2d 750, 759-60 (D.N.J. 1999) (finding defendants factual analysis troubling in light of

Continental Ore and denying defendants motion to dismiss plaintiffs antitrust claims).

C. Plaintiffs Have Adequately Alleged A Conspiracy To Fix MMA Prices

1. Parallel Price Increases

In non-sequitur fashion, Defendants argue that parallel price announcements alone

provide no basis to infer a price-fixing conspiracy among the defendants. Def. Mem. at 16

(emphasis added). As shown above, Plaintiffs claim of conspiracy is based on far more than

mere parallel price increase announcements. Plaintiffs claim of conspiracy is based on the

allegations of Defendants parallel price increases, considered in the context of their collusive

evidence, considered as a whole and in combination with the economic evidence, is sufficient todefeat summary judgment.).

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communications and other evidence. These allegations, taken together, are more than sufficient

to support an inference of conspiracy.13

Based only on the limited discovery conducted to date, Plaintiffs have identified twelve

parallel MMA price increases. These price increases span the entire class period from early 1995

through late 2003. (SAC 92) Plaintiffs also pleaded detailed evidence of conspiratorial

communications preceding six of the twelve parallel MMA price increases. (SAC 89.b.-g.)

The parallel MMA price increases announced in December 2002 were followed by a parallel

price increase for Acrylic Products announced by Defendants in February 2003. Defendants

attributed the price increase for Acrylic Products to higher raw material costs, i.e., the collusive

MMA price increase announced in December 2002 that was effective January 1, 2003. (SAC

89.f.) Plaintiffs identified four additional parallel price increases for Acrylic Products. (SAC

92.a.-d.)

2. Collusive Communications Among Defendants

Despite the black-letter law commanding courts to give plaintiffs the benefit of all

reasonable inferences in a motion to dismiss, Defendants try to explain away the facts alleged in

13 In similar non-sequitur fashion, Defendants argue that Plaintiffs have not alleged howDefendants price announcements affected actual prices. Def. Mem. at 16. However, whenplaintiffs allege a conspiracy to fix listprices, they are not required to make such a showing. SeeFlat Glass, 385 F.3d at 362-63 (Sellers would not bother to fix list prices if they thought therewould be no effect on transaction prices) (quoting High Fructose Corn Syrup, 295 F.3d at656); see also SRAM, 2008 WL 426522 at *4-5 (rejecting defendants argument that thecomplaint was deficient for failure to allege the manner in which the information exchangeimpacted prices). Moreover, the SAC specifically alleges that Defendants conspiracy to fix,maintain and stabilize the prices of MMA and Acrylic Products was carried out by, among otherthings, industry-wide price increases announced throughout the class period. SAC at 86. Seealso SAC 87, 91, 93 (specifically alleging that Defendants price increase announcementswere intended to and did artificially inflate the prices charged by Defendants). It is more thanplausible that lockstep price increase announcements resulted in increased transaction pricesand that Defendants intention in coordinating these price increase announcements was to fixtransaction prices.

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the SAC regarding Defendants collusive communications about MMA pricing and production

plans. Defendants say that none of these communications involved all three Defendants at the

same time and that bilateral communications, standing alone, are unlikely to facilitate a

multilateral conspiracy ... Def. Mem. at 17 n.15.14 Defendants suggestion that all three

conspirators had to jointly participate in the same communication for it to facilitate or be

evidence of a price-fixing conspiracy is simply not the law, and is belied by the facts alleged in

the SAC.

Here, Plaintiffs pleaded that all Defendants have communicated unlawfully about pricing.

For example, in SAC 89.c., Plaintiffs allege that representatives of CYRO spoke with

representatives of Lucite regarding a future price increase and then, four days later, CYRO

representatives spoke with Atofina representatives about the same yet-to-be-announced price

increase. Following these communications, all three Defendants issued identical price increase

announcements. Even in instances where, to date, evidence adduced through discovery has yet to

illuminate the exact parameters of Defendants anticompetitive communications, Plaintiffs allege

that all three Defendants issued parallel price increases. See SAC 89.b., d., e. and f. Plaintiffs

have thus pleaded substantially more than the slight evidence needed to link all Defendants to

the price-fixing conspiracy. See In re Bulk Popcorn Antitrust Litig., 783 F. Supp. 1194, 1197 (D.

14Defendants cite two cases, neither of which supports their proposition:American Copper and

Brass, Inc. v. Halcor S.A., 494 F. Supp. 2d 873, 879 (W.D. Tenn. 2007); and Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1357-58 (9th Cir. 1982). InAmerican Copper, the courtobserved merely that a successful conspiracy requires the participation of all of the major marketparticipants.American Copper, 494 F. Supp.2d at 879. Such participation is alleged here and issupported with specific examples of each participants conduct. In Krehl, the Ninth Circuitrefused to disturb the district courts findings (aftera full bench trial) that evidence of isolatedprice communications by persons with no pricing authority failed to support the claim thatdefendants conspired to fix wholesale prices. Krehl, 664 F.2d at 1357. That case has norelevance to this litigation, which involves wholly different facts in a radically differentprocedural posture.

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Minn. 1991) (Once a conspiracy is established, even slight evidence connecting a defendant to

the conspiracy may be sufficient to prove the defendants involvement); Apex Oil v. Di Mauro,

822 F.2d 246, 257 (2d Cir. 1987) (same). See also In re Flat Glass Antitrust Litig., 385 F.3d at

363 (If six firms act in parallel fashion and there is evidence that five of the firms entered into

an agreement it is reasonable to infer that the sixth firm acted consistent with the other five

firms actions because it was also a party to the agreement).

a. Defendants Unlawful Communications Concerning Price

Defendants contend that [a]lmost all of the conversations Plaintiffs allege concerning

price announcements occurred after these announcements were made public. Def. Mem. at 18

(emphasis added). Defendants characterization of Plaintiffs allegations is inaccurate, as is the

strained and contrived spin that they try to place on their internal documents.15

Acceptance of

Defendants overwrought explanation of the evidence requires that inferences be impermissibly

and consistently drawn against Plaintiffs. As but a few examples:

Paragraph 89.a. of the SAC identifies a May 12, 1997 Degussa memorandum

that contains a handwritten note stating: Our price increase on MMA will goout soon. ICI will also increase by $0.03 per lb. (CYR 0076259, Ex. 2 toDirect Purchaser Plaintiffs Reply Memorandum in Further Support of theirMotion for Class Certification, filed on November 5, 2007 (Class Reply);16Ex. 10 to Everett Decl.) (emphasis supplied). Defendants claim that Plaintiffsdescription of CYR 0076259 in 89.a. is misleading because the documentcontains two dates a typed date of May 12, 1997 and handwritten initials

15Given Defendants repeated mischaracterizations of Plaintiffs allegations, it is beyond

imagination how they could have accused Plaintiffs of making misleading references to recentlyproduced documents that support many of the new allegations in the SAC. See, e.g., Def. Mem.at 3.

16 Again treating the SAC as if it were evidence submitted on a motion for summary judgment,Defendants complain that Plaintiffs did not provide Bates number references in the SAC. (Def.Mem. at 22) However, many of the communications identified in the SAC were described indocuments that were already attached as exhibits to Plaintiffs Class Reply. Plaintiffs will bepleased to supply a full set of these documents to the Court upon request.

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with a handwritten date of June 2, 1997, which is in different handwriting thanthe note on which Plaintiffs rely. Defendants assert that the entire document,as opposed to the separate handwritten initials, was written on June 2, 1997,three weeks after the price increases were announced. (Def. Mem. at 19-20)However, the note on which Plaintiffs rely refers to knowledge of a future ICI

price increase, which was announced on May 14, 1997, weeks before the dateon which Defendants claim that the document was written. (LII 085085-86,Class Reply Ex. 3).

17

Paragraphs 89.b. and f. of the SAC allege two separate instances (inDecember 2000 and December 2002) in which Lucite issued a price increaseannouncement and then, within days, employees of Lucite and CYRO had aconversation regarding Lucites price increase announcement. (DGMMA00040598-99, Class Reply Ex. 12); (DGMMA 00040601, Class Reply Ex. 17)In each instance, immediately after its conversations with Lucite, CYROissued its own price increase. In the case of the December 2002 increase,

CYRO announced an increase that was identical in amount to Lucitesincrease immediately following its conversation with Lucite. In the case ofthe December 2000 increase, CYRO issued a larger price increase thanLucites initial increase, and Lucite promptly amended its originalannouncement to match CYROs increase. Defendants try to discount thesignificance of these communications by mischaracterizing them asdiscussions of published price increase announcements (Def. Mem. at 19), butCYROs price increase announcements and Lucites amended December 2000price increase had not yet been disseminated at the time of theseconversations. Plaintiffs are entitled to the more-than-reasonable inferencethat CYROs decisions to issue price increase announcements in December

2000 and December 2002 and Lucites decision to amend its December 2000price increase to conform with CYROs were the direct result of these illicitcommunications.

Paragraph 89.e. of the SAC alleges that, on August 1, 2002, employees ofArkema (then Atofina) and CYRO met face-to-face. At this meeting, CYROdeclared its support for an announced $0.06/lb. increase, and it volunteered toArkema that CYROs MMA supply remained very tight. (AI 010515-16,Class Reply Ex. 9, Everett Decl. Ex. 4) Soon thereafter, all Defendants issuedidentical $0.06/lb. increases. (AI 0380383; CYR 0214733-38, Class ReplyEx. 10; LII 026330) Defendants try to discount the significance of this

communication between officials of two Defendants by claiming that it relatessolely to a prior price increase issued in June 2002 (Def. Mem. at 19).

17 See Flat Glass,385 F.3d at 364, n. 17 (ruling on a motion for summary judgment, the Third

Circuit refused to accept defendants conclusion that a statement evidencing collusion was madein a document after price increase announcements were published when the opposite conclusionwas also reasonable).

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However, CYROs support for the $0.06/lb. price increase and its revelationof its own tight capacity situation can more plausibly be interpreted astelegraphing to Arkema that it would support a future $0.06/lb. price increase.Even if the finder of fact were ultimately to conclude that this document didrelate to the prior price increase, it would have been actionable misconduct in

any event because CYRO improperly assured Arkema about (1) its adherenceto the price increase announced in June 200218 and (2) the fact that thisannouncement would have an actual affect on prices in the marketplace.Either interpretation demonstrates that Defendants communicated unlawfullyabout prices.19

In addition to the above, the preposterous conclusion that Defendants draw from the

allegations in SAC 89.c. further illustrates their penchant for conjuring implausible inferences

from straightforward price-fixing allegations. There, Plaintiffs allege that two Defendants,

CYRO and Lucite, disclosed to each other their respective pricing plans and that CYRO assured

Lucite that it would support Lucites planned MMA price increase at $.06 per pound. Plaintiffs

allege that, after this meeting but before CYRO and Lucite went public with their price increases,

non-defendant Rohm & Haas issued an intervening price increase announcement of $.04 per

pound; when this occurred, Defendants again talked and agreed instead to announce a $.04 per

pound increase. Within days of this meeting, all Defendants announced identical $.04 per pound

price increases. Defendants argue that the exclusive inference to be drawn from these facts is

that they had no meeting of the minds concerning a price increase. But a less farfetched and

unquestionably plausible inference is not only more believable, but inescapable: After a non-

18

See United States v. Beaver, 515 F.3d at 738 (defendant assented to a conspiracy when hereassured his co-conspirators that he was abiding by a conspiratorial agreement).

19 Again improperly disputing the significance of Plaintiffs evidence in their motion addressedto the sufficiency of the pleadings, Defendants also launch an attack on the allegations in SAC 89.g., which describes a communication between Lucite and CYRO on June 16, 2003.Defendants claim that CYRO announced its price increase on June 12, 2003, before itscommunication with Lucite. Def. Mem. at 18. However, CYRO produced a price increaseannouncement dated June 19, 2003, three days after its communication with Lucite(CYR00021476, Class Reply Ex. 21). Whatever the evidence ultimately shows, there is a factualquestion as to the propriety of this price-related communication among competitors.

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defendant disturbed their plans, Defendants revised their conspiratorial agreement to a lockstep

and coordinated $.04 per pound price increase.20

b. Defendants Improper Communications Concerning

Production, Capacity and Other Proprietary Matters

The SAC also specifically alleges that Defendants discussed current and planned

production levels, capacity levels, and capacity utilization, all in order to coordinate their

respective production levels and restrict supply of MMA and Acrylic Products. (SAC 86)

Included among these allegations are particular examples of communications concerning

coordination of shutdowns and proposals to restrict supply, common methods used to raise

market prices. (SAC 89-90) Although Defendants urge the Court to accept their all-too-

forgiving and conclusory characterization of these exchanges of information as legal, pro-

competitive purchase, sale and swap transactions among Defendants (Def. Mem. at 21), that

would be highly improper in the context of a motion to dismiss. Moreover, such characterization

cannot be reconciled with the unlawful nature of the communications alleged by Plaintiffs.

Defendants communicated regarding planned shutdowns. (SAC 89.d., and 90.b., e. and

f.) Horizontal coordination to restrict output is tantamount to a horizontal price-fixing

agreement.Linerboard II, 504 F. Supp.2d at 49. See also In re Linerboard Antitrust Litig., 203

F.R.D. 197, 215-16 (E.D. Pa. 2001) (An agreement on output equates to a price-fixing

agreement. If firms raise price, the markets demand for their product will fall, so the amount

supplied will fall too in other words, output will be restricted. If instead the firms restrict

output directly, price will as mentioned rise in order to limit demand to the reduced supply)

(quoting General Leaseways, Inc. v. Natl Truck Leasing Assn., 744 F.2d 588,594 (7th Cir.

20See SRAM, 2008 WL 426522 (N.D. Cal. Feb. 14, 2008) (rejecting defendants efforts to put aninnocent, pro-competitive spin on an e-mail when there was a plausible inference that the e-mailevinced an exchange of pricing and/or product information).

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1984)); OSB, 2007 WL 2253419 (denying defendants motion to dismiss where plaintiffs alleged

a conspiracy to manipulate supply levels through coordinated shutdowns).

Moreover, contrary to Defendants assertion, the allegations in SAC 90 involve

communications that are completely unrelated to Defendants purchases of MMA from one

another. (Def. Mem. 21) For instance, in SAC 90.a. and d., Plaintiffs allege that Defendant

ICI gave CYRO a copy of its global and U.S. organizational charts and that Arkema (then Elf

Atochem) shared its sales staff information with CYRO. Likewise, in SAC 90.d., Plaintiffs

allege that Elf Atochem assured CYRO that it had no plans to produce MMA in the U.S. These

communications had nothing to do with arguably legitimate MMA purchases and swaps among

Defendants. On the ultimate merits of Plaintiffs claims (again, not an appropriate matter for

consideration on a Rule 12(b)(6) motion challenging the sufficiency of pleadings), private

discussions concerning sensitive, non-price information may constitute indirect evidence of a

price-fixing conspiracy, especially when, as here, the discussants are few in number and

dominate their industry. Phillip E. Areeda, Antitrust Law, 1407 (2006). See also Fears v.

Wilhelmina Model Agency, Inc., 2004 U.S. Dist. LEXIS 4502, at *47-*49 (S.D.N.Y. March 23,

2004) (defendants communications on issues other than the direct subject of an alleged price-

fixing conspiracy may reasonably be inferred to demonstrate an industry inundated with

collusion).

Defendants frequent conversations concerning confidential business information (SAC

90), coupled with their communications relating directly to pricing (SAC 89), demonstrate an

extremely high level of inter-firm communication among Defendants. Although it is again an

issue relating to the ultimate merits of Plaintiffs claims, [a] high level of inter-firm

communications is one of the plus factors which may indicate the defendants were engaged in

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collusive anticompetitive behavior. Rosefielde v. Falcon Jet Corp., 701 F. Supp. 1053, 1074

(D.N.J. 1988). See alsoApex Oil Co., 822 F.2d at 254;Fears, 2004 U.S. Dist. LEXIS 4502, at

*22 (evidence of a high level of inter-firm communication can serve to bolster the inference of a

conspiracy drawn from parallel acts). For pleading purposes underTwombly, the facts alleged in

the SAC suggest, if not demonstrate as a matter ofevidence, that the coordinated parallel price

increases identified by Plaintiffs were the unlawful byproduct of conspiracy.

D. Plaintiffs Have Adequately Alleged A Conspiracy

To Fix Prices of Acrylic Products

If Plaintiffs here have successfully alleged a Sherman Act claim on behalf of MMA

purchasers (and they have), it necessarily follows that they have also stated a claim for relief on

behalf of purchasers of Acrylic Products. Defendants price fixing with respect to MMA

therefore exposes them to liability for price-fixing with respect to the downstream Acrylic

Products they sold throughout the Class Period. As vertically integrated producers (SAC 67),

Defendants make MMA, and then use MMA to make Acrylic Products. (Id.) Defendants sell

MMA. (SAC 65) Defendants sell Acrylic Products. (SAC 66) MMA is the principal

ingredient of Acrylic Products (SAC 67), and the manufacture of Acrylic Products is a

principal use of MMA. (SAC 63) The price of MMA drives the price of Acrylic Products.

(SAC 67) Defendants conspiratorial meetings and communications relating to MMA pricing

and supply were intended to and did affect pricing and supply of Acrylic Products, the principal

input component of which is MMA. (SAC 67; 87; 89.f.; 92.a.-d.)

For thirty years, the Third Circuit and other courts have recognized antitrust claims of

plaintiffs who purchase products from vertically integrated producers that fixed the price of the

principal input to the product purchased by plaintiffs. See, e.g., In re Linerboard Antitrust Litig.,

305 F.3d 145, 158-60 (3d Cir. 2002); In re Sugar Industry Antitrust Litig., 579 F.2d 13, 16-17

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(3d Cir. 1978));see alsoGeneral Refractories Co. v. Stone Container Corp., No. 98-3543, 1999

WL 14498, at *3 (N.D. Ill. Jan. 8, 1999). In Linerboard, defendants were integrated

manufacturers of linerboard, corrugated sheet and corrugated boxes. Defendants conspired to

inflate the price of linerboard by reducing supply. Plaintiffs were purchasers of either corrugated

sheet or corrugated boxes. None of them purchased linerboard. 305 F.3d at 148-49. In reviewing

the district courts order certifying the class, the Third Circuit rejected defendants merits-based

argument characterizing plaintiffs as indirect purchasers who lacked standing to assert a Sherman

Act claim alleging price-fixing in the linerboard market. The Court observed that class plaintiffs

purchased corrugated sheets or boxes directly from Appellants, and, like the candy in In re

Sugar, which contained allegedly price-fixed sugar, the corrugated sheets and boxes contain

linerboard that was subject to an agreement on output, which is equivalent to a price-fixing

agreement. 305 F.3d at 160.21

In In re Sugar, defendants were sugar refiners, two of which also manufactured hard

candy. 579 F.2d at 15. Defendants allegedly conspired to fix the price of refined sugar.Id. at 15-

16. Plaintiffs purchased hard candy from defendants made from defendants price-fixed sugar.

Id. In vacating the district courts grant of summary judgment against plaintiffs, the Third Circuit

rejected defendants argument that plaintiffs claims were indirect. The Court held that

plaintiff[s] did purchase directly from the alleged violator. True, the price-fixed commodity had

been combined with other ingredients to form a different product. But just as the sugar

21 Similarly, in General Refractories, plaintiffs purchased corrugated sheets made from price-fixed linerboard. 1999 WL 14498, at *3. In denying a motion to dismiss, the court was just assuccinct as the Third Circuit: If the plaintiffs had alleged a conspiracy to fix the price oflinerboard by itself, then [plaintiffs] would be out of luck. However, the corrugated sheet priceinflation was a derivative of linerboard manipulation. That is, linerboard is a component part ofthe corrugated sheet. Hence, manipulation of the former allegedly caused the plaintiffs to sufferthe tangible harm of paying increased prices for the ultimate product corrugated sheets. Id.

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sweetened the candy, the price-fixing enhanced the profits of the candy manufacturers. Id. at

17-18.

Vertically integrated producers do not fix prices on themselves only to give away their

gains in downstream competition. Rather, they realize the gains of price fixing at both levels in

the market. They take price-fixing gains at the upstream level by overcharging unaffiliated

upstream purchasers, and at the downstream level by overcharging downstream purchasers. This

is as true here as it was inLinerboard, General Refractories and Sugar, where by virtue of their

joint control of an upstream market, conspirators injected supra-competitive pricing directly into

a downstream market in which they participated. The conspirators were able to do this because

they could increase input costs to any actual or potential downstream rivals by raising the price

of the input. In short, upstream conspirators increase prices in the downstream market and then,

by selling into that market, directly enjoy the benefits of their price-fixing.

Other allegations provide further notice of the facts supporting Plaintiffs claim that

Defendants conspired with respect to Acrylic Products. Plaintiffs allege that there were at least

five parallel price increases for Acrylic Products. (SAC 89.f.; 92.a.-d.) The SAC alleges that

the economic structure of the market for Acrylic Products is susceptible to collusion. (SAC

63-67) Defendants also marketed and priced Acrylic Products in a single global market with

centrally managed, worldwide marketing and pricing strategies. (See SAC 68-83.)

Defendants European-based personnel were involved in meetings and communications with

U.S.-based personnel. (SAC 84.a.-e.; 88; 90.c., d., and f.) Meetings at which MMA capacity,

supply and other market conditions were discussed took place both in the United States and in

Europe, and such meetings were attended by both United States and European-based personnel.

Id. Meetings in the United States at which proprietary and confidential information was

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exchanged followed the same pattern as the meetings identified in the E.C. adjudication (SAC

88; 101) in which Defendants European entities were fined for conspiring to fix prices for

Acrylic Products in Europe (SAC 97-98). The timing of at least two known conspiratorial

meetings in Europe coincides with coordinated price increases in the United States. (SAC 94)22

Considered in context and taken as a whole, the allegations in the SAC suggest the

required element of conspiracy with respect to Acrylic Products as well as MMA.

E. The Complaint Adequately Alleges

A Conspiracy Throughout The Class Period

Despite the lack of merits discovery, the SAC adequately alleges anticompetitive

behavior throughout the Class Period. (SAC 89, 90, 92). In arguing that Plaintiffs fail to

allege any facts relating to the period from 1995 through 1999 (Def. Mem. at 23-24),

Defendants again improperly invite the Court to examine each piece of evidence in a vacuum

and to view it in a light most favorable to Defendants.

22Defendants argue that the E.C.s adjudicated findings are irrelevant to the claims in the case

and that this Court has already so held. Def. Mem. at 11. Apart from the fact that the CourtsDecember 19, 2007 Order said no such thing, numerous cases recognize that foreign conduct isrelevant to whether a defendant engages in anticompetitive conduct in the United States. SeeInre Automotive Refinishing Paint Antitrust Litig., 2004 U.S. Dist. LEXIS 29160, at *16 (E.D. Pa.Oct. 29, 2004); In re Vitamins Antitrust Litig., No. 99-197, 2001 WL 1049433, at *11-14(D.D.C. June 20, 2001); Union Carbide Corp. v. Montell N.V., 28 F. Supp.2d 833, 842 (S.D.N.Y.1998); In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1154-56 (N.D. Ill. 1979). WhileDefendants maintain thatIn re Elevator Antitrust Litig., 502 F.3d 47 (2d Cir. 2007), requires theCourt to draw a different conclusion (Def. Mem. 9-10), the Second Circuit in that case merelydeclined to attach significance to European conspiracy allegations absent any linkage betweensuch foreign conduct and conduct here. Id. 51-52 ([t]here are no allegations of globalmarketing or fungible products and no indication that participants monitored prices in othermarkets.). The factual allegations absentinElevators are specifically alleged here. See, e.g.,SAC 68-83 (completely integrated global market for MMA and Acrylic Products, including aunified global marketing strategy covering Europe and the United States) and SAC 63-67(product fungibility).

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Plaintiffs allege that the first parallel price increase occurred in April 1995, which is

consistent with their allegation that Defendants conspiracy began in January 1995. (SAC 92)

Plaintiffs identified specific conspiratorial communications between Defendants relating to a

future price increase as early as May 1997. (SAC 89.a.) The E.C. also found that Defendants

conspiracy to fix the price of Acrylic Products in Europe began in January 1997, which, given

the Plaintiffs identification of numerous interrelationships between the United States and

European markets for MMA and Acrylic Products, suggests strongly that Defendants conspiracy

to fix prices was ongoing in the United States at least as early as that time. (See SAC 68-84.)

The allegations relating to the period before 1999 cannot be properly analyzed in

isolation from allegations relevant to the period after 1999. Although Plaintiffs have pleaded

highly specific facts supporting allegations of an international conspiracy throughout the entire

Class Period, Defendants ask this Court to conclusively determine the proper scope of the Class

Period on the pleadings, without benefit of appropriate discovery.23

This request is both

unreasonable and legally unsupportable. See, e.g., Continental Ore, 370 U.S. at 709-710 (trial

court erred in excluding evidence that a conspiracy to exclude a plaintiff from the market began

before plaintiffs arrival in the U.S.).

F. Plaintiffs Adequately Alleged Fraudulent Concealment

The Courts December 21, 2007 Order did not address the sufficiency of Plaintiffs

allegations concerning fraudulent concealment because it ruled exclusively that additional facts

23 During the negotiations concerning the scope of discovery that took place in late 2006through early 2007, Defendants represented to Plaintiffs that they possessed a limited number ofdocuments dating back to 1995. Apart from their blanket refusal to provide merits discoverybefore the Courts class certification determination, Defendants now try to take unfair advantagetheir own discovery limitations by seeking dismissal of Plaintiffs claims due to a purportedlack of evidence relating to the period from 1995 through 1999. The Court should reject thisargument out of hand.

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were necessary to suggest the plausibility of Plaintiffs conspiracy allegations. Defendants

renewed arguments concerning fraudulent concealment are essentially unchanged from their

previous motion to dismiss (Def. Mem. 26-35; Docket No. 49 at pages 31-46).24

The allegations

relating to fraudulent concealment in the SAC are identical to the corresponding allegations in

the superseded Complaint, except for paragraph numbers. Therefore, Plaintiffs respectfully refer

the Court to their earlier analysis set forth at pages 32-44 of Direct Purchaser Plaintiffs

Memorandum of Law in Opposition to Defendants Motions to Dismiss Consolidated Amended

Class Action Complaint, filed Dec. 21, 2006 (Docket No. 54), which is reproduced here

(annotated with paragraph references to the SAC) at Exhibit C.

25

G. ICIs Separate Motion to Dismiss Should be Denied

Defendant ICI seeks dismissal of the SAC based on the proposition that, as a matter of

law, the sale of its MMA and Acrylics Products business to Defendant Lucite in late 1999 (the

1999 Sale) constitutes a withdrawal from the conspiracy. See ICI Mem.26

at 4-5, 5 n.6. ICI is

24 Defendants have cited no cases that have construed Twombly in a way that alters thetraditional analysis of the sufficiency of fraudulent concealment allegations. On the other hand,courts considering fraudulent concealment pleading issues after Twombly have not seen fit toaddress application of Twombly in this context. See, e.g., Emerson Elec. Co. v. Le CarboneLorraine, S.A., 500 F. Supp. 2d 437, 448-49 (D.N.J. 2007).

25 After Plaintiffs submitted their opposition to Defendants first motion to dismiss onDecember 21, 2006, the Honorable Legrome D. Davis decided In re Aspartame Antitrust Litig.,2007 U.S. Dist. LEXIS 16995 (E.D. Pa. Jan. 18, 2007) (Davis, J.). InAspartame, Judge Davisrejected defendants argument that plaintiffs had not adequately pleaded fraudulent concealmentin a case alleging a price fixing conspiracy, finding that the conspiracy was self-concealing andthat plaintiffs were not required to plead affirmative acts of concealment. Id. at *13-*21. JudgeDavis concluded, Plaintiffs were unable, and thus not required, to provide the inner workings ofthe conspiracy because, according to the complaint, that information was deliberately concealedfrom plaintiffs and the public. Id. at *20.

26 ICI Mem. refers to Defendant Imperial Chemical Industries plcs Memorandum in Supportof Its Motion to Dismiss Plaintiffs Second Consolidated Amended Class Action Complaints forFailure to State a Claim.

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asserting an affirmative defense of withdrawal, which cannot be established based on Plaintiffs

allegations. Therefore, the motion to dismiss must fail, regardless of whatever facts extrinsic to

the pleadings ICI may be able to establish later in the litigation. As it is now, ICIs affirmative

defense is intensely fact-bound, and it requires discovery before the issue can be addressed.

The 1999 Sale alone does not demonstrate that ICI has met its burden of establishing that

it withdrew from the conspiracy. Indeed, such a finding would turn the doctrine of withdrawal

on its head. United States v. Sax, 39 F.3d 1380, 1387 (7th Cir. 1994). ICI remains liable for the

action of its co-conspirators unless it can demonstrate that it took affirmative and unequivocal

steps to withdraw from the conspiracy. See United States v. Kushner, 305 F.3d 194, 198 (3d Cir.

2002);see also Pinkerton v. United States, 328 U.S. 640, 646 (1946).

Determining whether a party has withdrawn from a conspiracy is a question of fact that

should rarely be resolved on a motion to dismiss. United States v. Lowell, 649 F.2d 950, 955 (3d

Cir. 1981); In re Catfish Antitrust Litig., 908 F. Supp. 400, 415 (N.D. Miss. 1995) (assessing

whether a genuine issue of material fact existed regarding defendants claim of withdrawal from

antitrust conspiracy); accordUnited States v. Bafia, 949 F.2d 1465, 1480 (7th Cir. 1991); 15A

C.J.S. CONSPIRACY 193 (Resignation . . . does not, in and of itself, constitute withdrawal from

the conspiracy as a matter of law. . . . The determination of whether a party has withdrawn from

the conspiracy is a question of fact). The [m]ere cessation of activity in furtherance of an

alleged conspiracy does not necessarily constitute withdrawal. United States v. Antar, 53 F.3d

568, 582 (3d Cir. 1995) (citations omitted), abrogated on other grounds, Smith v. Berg, 247 F.3d

532 (3d Cir. 2001); see also United States v. Berger, 224 F.3d 107, 118-19 (2d Cir. 2000)

([R]esignation from a criminal enterprise, standing alone, does not constitute withdrawal as a

matter of law; more is required.).

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It is ICIs burden to prove withdrawal. United States v. Waldrop, 786 F. Supp. 1194,

1200 (M.D. Pa. 1991). An allegedly withdrawn conspirator must satisfy a rigorous standard

to meet its burden, Antar, 53 F.3d at 582 (citing Hyde v. United States, 225 U.S. 347 (1912)).

The burden of showing withdrawal is heavy, for the defendant cannot set in motion a criminal

scheme and then limit its responsibility for the harm caused by the scheme by simply ceasing to

participate in the scheme. In re Catfish Antitrust Litig., 908 F. Supp. at 414 (citing Armco Steel

Co., LP v. CSX Corp., 790 F. Supp. 311, 322 (D.D.C. 1991)). A defendant must completely sever

its ties to the conspiracy.Antar, 53 F.3d at 583. Even with a complete severance from a business

engaged in the conspiracy, a defendant is still liable if it continues to benefit from the conspiracy.

Id. at 583-84; see also Lowell, 649 F.2d at 955 (withdrawal requires the defendant to show its

severance of all ties to the conspiracy and the consequent deprivation of defendants services

to the conspiracy).

Because the 1999 Sale alone is insufficient in and of itself to demonstrate a severance of

all ties between ICI and its co-conspirators, ICI has failed to meet its burden to establish

withdrawal.

ICI received the full emoluments of the conspiracy with the sale of its business. The

market value of any business, on sale, is the present discounted value of the expected net income

flow from the business. In simple terms, buying an ongoing business is buying a stream of

profits: a rational buyer pays no more (and a rational seller accepts no less) than the present

discounted value of the expected stream of profits from the business. The alleged price-fixing

enhanced the expected net income flow from ICIs United States acrylics unit and thus enhanced

the price that ICI received. ICI is attempting to have its cake and eat it too it cashed in on its

(future) price fixing gains while claiming that its sale of its business constituted a renunciation of

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the price-fixing conspiracy in which it participated.27

Beyond this, the 1999 Sale does nothing more than suggest that ICI ceased its production

and perhaps distribution and sale of MMA or Acrylic Products. At minimum, ICI must come

forth with complete details of the 1999 Sale, which may reveal that ICI had an ongoing

relationship with or received a benefit from the conspiracy. To give just a few relevant examples,

ICI may have acquired stock from Lucite, received royalty payments, or obtained fees for

licensing, technology or patents as result of or in consideration for the 1999 Sale. Any of these

would confer a benefit to ICI from the ongoing conspiracy to fix the prices for MMA and

Acrylic Products. When a co-conspirator continues to benefit from or otherwise aid a business

that is engaged in the conspiracy, there is no withdrawal. See, e.g., Antar, 53 F.3d at 583-84; Sax,

39 F.3d at 1387; United States v. Eisen, 974 F.2d 246, 269 (2d Cir. 1992); United States v. Swiss

27 ICIs reliance on Mortons Market, Inc. v. Gustafsons Dairy, Inc., 198 F.3d 823 (11th Cir.1999), amended by 211 F.3d 1224 (11th Cir.

MMA Opp to MTD (Redacted)

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Transcript of MMA Opp to MTD (Redacted)