Evergreen Partnering Group, Inc. v. Pactiv Corp.
865 F. Supp. 2d 133
D. Mass.2012Background
- Evergreen sues to enjoin a conspiracy by producer defendants (Pactiv, Genpak, Dolco, Solo, Dart) and ACC under Sherman Act §1 and Massachusetts Chapter 93A.
- Evergreen’s closed-loop polystyrene recycling model collects and recycles post-consumer PS resin to remanufacture into new PS products for schools and institutions.
- Evergreen alleged three revenue streams: royalties on Poly-Sty-Recycle products, sale of PC-PSR at prime pricing, and environmental fees based on school savings.
- Defendants allegedly controlled about 90% of the market for single-use PS food service packaging and are PFPG members.
- Evergreen sought funding from PFPG and ACC; PFPG denied funding, but some defendants later funded Evergreen’s Norcross facility, then retreated, and Evergreen shut down in 2008.
- The SAC alleges various refusals to deal, testing of Evergreen’s resin, and divergent actions by defendants that allegedly reflect a boycott, not independent business decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SAC plausibly alleges a Sherman Act §1 conspiracy | Evergreen contends parallel actions and PFPG ties show agreement. | Defendants contend conduct can be explained by independent business reasons; no plausible agreement. | Dismissal with prejudice; no plausible conspiracy pleaded. |
| Whether members of a trade association can form a §1 conspiracy through the association | PFPG/ACC ties suggest coordination facilitating conspiracy. | Trade association membership alone not enough; no express agreement. | Not plausibly alleged; association membership insufficient. |
| Whether the SAC plausibly alleges an actual agreement rather than unilateral refusals to deal | Allegations of meeting disparagement and later decision blocking Evergreen show connection. | Refusals to deal can be independent decisions; no agreement. | Insufficient to plead a conspiracy under §1. |
| Whether the Massachusetts 93A claim is viable | Defendants’ refusal-to-deal harms alleged unfair competition. | Refusal-to-deal alone not actionable; limitations and jurisdiction issues. | 93A claim dismissed as to all claims.” |
| Whether the claims are time-barred under the four-year statute for §93A | Genpak’s 2007 decision within four years; other acts outside the period. | Most alleged harms outside the statute; insufficient within penumbra of unfairness. | 93A claim barred; limitations prejudice granted. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must show plausible entitlement to relief; mere parallel conduct not enough)
- Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452 (6th Cir. 2011) (plausible conspiracy requires more than conclusory allegations; connection between agreement and actions examined)
- In re Delta/AirTran Baggage Fee Antitrust Litig., 733 F. Supp. 2d 1348 (N.D. Ga. 2010) (plausible allegations of concerted action and following conduct support §1 claim in some cases)
- In re Flash Memory Antitrust Litig., 643 F. Supp. 2d 1133 (N.D. Cal. 2009) (plausible evidence of price/production data exchange to restrain competition)
- Standard Iron Works v. ArcelorMittal, 639 F. Supp. 2d 877 (N.D. Ill. 2009) (post-association endorsement of industry strategy can support plausibility of conspiracy when allegations specific)