In Re Publication Paper Antitrust Litigation
2012 U.S. App. LEXIS 16330
2d Cir.2012Background
- SEO acquired Consolidated Papers, Inc. in Aug 2000; Consolidated Papers became SENA, SEO’s subsidiary, with Korhonen as SENA President who had final pricing authority.
- UPM’s Markku Tynkkynen became President of UPM’s Magazine Paper Division in Jan 2002 and had final authority over US publication paper pricing; he and Korhonen met privately before price actions.
- Publication paper (grades 3–5) is a commodity in an oligopolistic North American market dominated by IP, SENA, and UPM, with combined market share around 60%.
- In Aug 2002, Nov 2002, and Feb 2003, rival price increases were announced; SENA and UPM’s increases closely followed competitors’ moves, prompting alleged coordination.
- DOJ investigation followed; SENA’s criminal trial occurred; testimony from Tynkkynen and Korhonen suggested an agreement to follow and implement price increases; district court granted summary judgment to SENA and SEO in part, which is reviewed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there an agreement to fix prices between SENA and UPM? | Tynkkynen/Korhonen testimony shows an agreement to follow and implement IP’s increases. | Prices could reflect independent, competitive decisions within industry dynamics; no verifiable agreement. | A jury could reasonably find an agreement. |
| Did the agreement to fix prices cause the price increases that plaintiffs paid? | Strong evidence that the agreement was a material and but-for cause of higher prices. | Lower-level pricing decisions could have driven increases independently of any agreement. | Causation is a jury question; genuine fact dispute exists. |
| Did SEO have direct involvement in US pricing/marketing decisions for publication paper? | SEO’s European price actions and coordination with SENA imply influence over US pricing. | No concrete evidence of SEO’s direct involvement in US decisions. | District court properly granted SEO summary judgment. |
Key Cases Cited
- United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) (price-fixing unlawful per se; need for conspiracy and injury proof)
- Apex Oil Co. v. DiMauro, 822 F.2d 246 (2d Cir. 1987) (tends to exclude standard; what evidence suffices under Matsushita)
- Texaco Inc. v. Dagher, 547 U.S. 1 (U.S. 2006) (per se price-fixing and illegal restraints considerations)
- In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir. 2004) (plus factors and conscious parallelism standards)
- In re Corn Syrup Antitrust Litig., 295 F.3d 656 (3d Cir. 2002) (economic context and conspiratorial behavior considerations)
- Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (tends to exclude standard; burden to show plausible conspiracy)
- Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (U.S. 1984) (causation and evidence standards for antitrust injury)