Glass Manufacturers Motion for Court to Compel Plaintiffs to Produce Sales Data in Antitrust Suit
December 8, 2009

Several glass manufacturers who are the defendants in an on-going antitrust suit filed by several glass shops across the United States filed a motion yesterday seeking that the court compel some of the glass shops involved to provide their own sales data for the period of time in question. AGC Flat Glass North America, Guardian Industries, Pilkington North America and PPG Industries are the defendants in the suit, in which a range of glass businesses across the United States have alleged that they engaged in a conspiracy to fix prices. (CLICK HERE for related story.)

Among the items plaintiffs claim was the result of price-fixing were fuel surcharges they faced "from at least July 1, 2002, and continuing through at least December 31, 2006." However, in their brief in support of the latest motion, the defendants argue that "plaintiffs' sales prices may, in some or all instances, be based on a 'cost-plus' model, such that the plaintiff may actually profit from the prices or surcharges about which they complain in this case."

The data they're requesting the plaintiffs supply includes documents that show the date of each sale, the type of product sold, the quantity purchased, the gross and net price, the type and amount of any surcharges, the identity of the manufacturer and distributor, and the corporate entity that made the purchase, according to court documents.

In addition, the defendants are requesting "all documents relating to any energy or natural gas surcharges" charged to their customers.

Though they'd previously requested this information through discovery, it has not yet been provided, according to court documents, and several plaintiffs (Gilkey Window Co., Girard Glass Corp., Jackson Glass Co. and Thermo-Twin Industries Inc.) have objected to the request, "to the extent that it seeks downstream information regarding Plaintiffs' sales ... "

"Such information is neither relevant to claims or defenses of either party nor reasonably calculated to lead to discovery of admissible evidence with respect to such claims or defenses," continues the objection to the original request, filed this July.

In addition, the manufacturers claim that by requesting the "named plaintiffs'" data, "it will shed light both on whether the Named Plaintiffs can adequately represent the class and on whether the Named Plaintiffs can show impact common to the class."

"Here, any of the Named Plaintiffs who were able to successfully mark up, or at least pass on, Defendants' price increases or energy surcharges to their customers may actually have benefits from Defendants' allegedly wrongful conducts-or at least have been unharmed," reads this week's motion. "While this may not be a defense to liability in an individual suit under the Sherman Act, it raises the key question of whether a Named Plaintiff who benefited from the Defendants' price increase can represent the interests of an absent class member who did not."

The motion to compel was filed by the defendants' attorneys in the U.S. District Court for the Western District of Pennsylvania yesterday.

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