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From Antitrust Law Daily, October 5, 2018

Suits alleging conspiracies to fix chemical prices, TV advertising rates consolidated

By E. Darius Sturmer, J.D.

The Judicial Panel on Multidistrict Litigation issued orders on October 3 to centralize groups of cases alleging conspiracies to artificially inflate local television advertising prices throughout the United States and to fix prices of certain chemicals used in the manufacture of foam insulation and thermoplastic polyurethanes into two consolidated multidistrict litigations (In re Diisocyanates Antitrust Litigation ;In re Local TV Advertising Antitrust Litigation, October 3, 2018, Vance, S.).

None of the responding parties in any of the cases opposed centralization, the court noted, and all of the actions alleging the respective conspiracies were based upon common, complex factual questions. As to each of the consolidated litigations, the court decided, centralization would eliminate duplicative discovery, prevent inconsistent trial rulings, and conserve the resources of the parties, the counsel, and the judiciary, the court said.

Chemicals. The panel consolidated three cases alleging the price fixing of diisocyanates by chemical manufacturers including BASF Corp. and Bayer A.G. in the Western District of Pennsylvania. The cases—filed in Michigan, New Jersey, and Pennsylvania—all claim that the numerous defending manufacturers conspired to fix, raise, maintain, or stabilize the price of methylene diphenyl diisocyanate (MDI) and toluene diisocyanate (TDI) sold in the United States, from early 2015 or 2016 through the present. The alleged conspiracy included allegations of three agreements to limit supply of MDI and TDI through planned manufacturing shutdowns at plants worldwide and implementing coordinated price increases.

MDIs and TDIs are precursor ingredients for the manufacture of polyurethane foams and thermoplastic polyurethanes. Flexible polyurethane foam is used in products such as mattresses, upholstered furniture, and car seats. Rigid polyurethane foam is used mostly as an efficient insulating material for buildings and refrigeration appliances. Thermoplastic polyurethanes are used in diverse product groups such as clothing, mobile electronic devices and sports equipment.

The Western District of Pennsylvania, home to one of the original lawsuits, was an appropriate transferee forum because defendant resided within it and five others were headquartered nearby. Thus, relevant documents and witnesses were likely to be located in or near the area. Nearly all respondents favored the venue, as did the plaintiffs in one action involved in the motion and another potential tag-along suit, the panel explained.

Local television advertising. The panel also combined two lawsuits alleging that Sinclair Broadcast Group, Inc., Tribune Media Company, and other broadcasters making up more than 80 percent of the market conspired to artificially inflate the prices for local television advertisement time throughout the United States since some time in 2014 or 2016. The actions commonly allege that the conspiracy was effectuated by sharing competitively sensitive information through defendants’ advertising sales teams in order to raise advertising prices to supracompetitive levels, and that the alleged scheme was facilitated by certain industry associations, the panel observed.

The most fitting district for this litigation, in the panel’s view, is the Northern District of Illinois, where common defendant Tribune Media is headquartered. All the defendants and plaintiffs in six actions agreed that the district provides a geographically central and convenient location for the parties and witnesses. Moreover, one action on the motion and eight potential tag-along actions are already pending there, the court remarked.

The cases are MDL No. 2862 and MDL No. 2867.

Attorneys: Anthony D. Shapiro (Hagens Berman Sobol Shapiro LLP) for Isaac Industries, Inc. David B. Spear (Minto Law Group, LLC) for Utah Foam Products, Inc. Peter S. Pearlman (Cohn, Lifland, Pearlman, Herrmann & Knopf, LLP) for C.U.E., Inc. Andrew Marovitz (Mayer Brown LLP) and Thomas L. Allen (Reed Smith LLP) for BASF Corp. John Terzaken (Simpson Thacher & Bartlett LLP) for Bayer Corp. and Bayer A.G. Alicia Leigh Shelton (Zuckerman Spaeder LLP) for Law Offices of Peter Miller, P.A. Hollis L. Salzman (Robins Kaplan LLP) for Clay, Massey & Associates, PC. Jonathan Lee Greenblatt (Shearman and Sterling LLP) for Sinclair Broadcast Group, Inc. Mazda K. Antia (Cooley Godward Kronish LLP) for Gray Television, Inc.

Companies: Isaac Industries, Inc.; Utah Foam Products, Inc.; C.U.E., Inc.; BASF Corp.; Bayer Corp.; Bayer A.G.; Law Offices of Peter Miller, P.A.; Clay, Massey & Associates, PC; Sinclair Broadcast Group, Inc.; Gray Television, Inc.

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