Search metadata Search text contents Search TV news captions Search radio transcripts Search archived web sites Advanced Search. Capsule International Holdings LLC (f/k/a Constar) Case Background On December 19, , Capsule International Holdings LLC (f/k/a Constar International Holdings LLC) and nine affiliated debtors (collectively, the "Debtors") each filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. Thomas Allott. Greater Detroit Area Training and Documentation Coordinator at Dürr Ecoclean, Inc. Marketing and Advertising Education University of Detroit Mercy — Bachelor of Business Administration (BBA), International Business Brighton high school — Brighton high school — Experience Dürr Ecoclean, Inc. May - Present Durr Ecoclean, Inc. June
Plaintiff's counsel argued that most of the defendants' facts were sharply disputed, and started to present plaintiff's version of the "undisputed" facts. Convinced that a swearing match among counsel would not produce a statement of truly undisputed facts, the court adjourned the hearing. In order to facilitate resolution of defendants' summary judgment motion, the court ordered the parties to reduce their contentions to writing and to serve them on the opposing parties pursuant to Fed.
At the end of the hearing, defendant Coke was permitted to file a separate motion for summary judgment, Docket No. On November 13, , the court filed an order setting deadlines for serving requests for admissions and responding to those requests. The November 13 order also directed that, after the requests for admission were answered, defendants file a statement of undisputed facts in support of their motions for summary judgment and plaintiff file a statement of any facts which would warrant denial of defendants' motions.
On December 1, , plaintiff moved pursuant to Fed. Defendants jointly served Sewell with requests for admission; Coke separately served Sewell with requests for admission; and Sewell served defendants with requests for admission.
When the dust settled in mid-February, , the request for admissions process, intended to narrow and clarify the issues for decision, had instead bloated the record with the addition of a stack of paper over three feet thick.
See Sewell Plastics, Inc. The Coca-Cola Company, F. On March 1, , the court tried again. In addition, the court ordered counsel to "meet and make a serious effort to agree on and sign a written agreement on the facts necessary to decide the summary judgment motions. In response to the March 1 order, plaintiff and each group of defendants filed a statement of facts. The parties filed a stipulation.
Plaintiff filed an outline in opposition to defendants' statements of "purportedly undisputed" facts. On April 18, , the court heard: 1 defendants' motion for summary judgment; 2 Coke's separate motion for summary judgment; and 3 plaintiff's motion for declaration of per se illegality. At the hearing, defendants' counsel argued that "whether Sewell had shown an adverse effect on competition is a dispositive point.
Defendants' counsel urged the court "to focus on whether the challenged activity has the actual or probable effect of decreasing market output or increasing market prices. During the April 18, , hearing, plaintiff's counsel did not dispute the above facts as set forth by defendants. Instead, plaintiff assumed the correctness of those facts and argued that: 1 "[e]very fact is consistent with a buyer price-fixing conspiracy, so there is no way you have these facts could [sic] a Defendant be entitled to judgment as a matter of law"; and 2 "these facts are equally consistent with a growing marketplace and a lot of competitiveness that have nothing to do with the activities in question.
When pressed by the court to describe the adverse effects of defendants' conduct on competition, plaintiff's counsel stated that "the principal adverse effect is that the business of the bottler Defendants, of approximately 33 or so bottlers all located in the same geographic area, is not open for competition from Sewell or for anyone else At the end of the April 18, , hearing, the court denied plaintiff's motion for summary judgment on Southeastern's counterclaim and motion to strike Coke's sixth affirmative defense.
The court took the remaining motions under advisement. Given the apparent procompetitive benefits arising from the formation and operation of Southeastern, the court concluded that defendants' activities were not illegal per se under the Sherman Act.
Although the data on price and output were damning to plaintiff's case, the court rejected defendants' attempt to limit consideration of anticompetitive effects to price and output as too narrow. Although plaintiff had not set forth any specific facts demonstrating an adverse impact on competition, the court at that time was willing to assume that plaintiff had produced at least a scintilla of evidence on the subject in a stack of papers over three feet high.
Also, believing that "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles," Poller v. Columbia Broadcasting System, Inc. Approximately nineteen of the twenty pages were devoted to the question of per se illegality. Quoting Broadcast Music, Inc. The remaining one page of text rejected defendants' argument that anti-competitive effects are limited to raising prices or reducing output, and without further discussion held that plaintiff's evidence was sufficient to raise issues of material fact for trial under the Rule of Reason as to the anti-competitive effects of the restraints arising out of the formation and operation of Southeastern.
See id. On May 11, , defendants moved that the court amend the May 6, , order to include findings necessary to certify two questions for immediate appeal pursuant to 28 U. On May 12, , defendant Coke moved that the court reconsider denial of its separate motion for summary judgment or, alternatively, certify the denial of Coke's motion for summary judgment for immediate appeal pursuant to 28 U.
On July 27, , the court amended the May 6, , order to include specific factual findings about Coke's role in the formation and operation of Southeastern.
Also, on July 27, , the court, uncertain that its assumption about the record was correct, certified two questions for immediate appeal pursuant to 28 U. The July 27 order certifying the questions for appeal also provided that this action would be stayed if the Fourth Circuit Court of Appeals granted defendants permission to pursue the discretionary appeal.
On September 6, , the United States Court of Appeals for the Fourth Circuit denied defendants' petition for leave to take an interlocutory appeal. On November 3, , the court held a status conference and ordered: 1 that all motions by the parties be filed not later than January 16, ; 2 that jury selection take place on March 23, ; and 3 that the clerk calendar this action for trial in a six-week jury term beginning on March 28, The clerk calendared all pending motions for hearing on March 1, In preparing to hear those motions, the court was again required to scrutinize plaintiff's theory of the case and the sufficiency of its evidence.
Still concerned about the assumption that plaintiff had produced or could produce evidence demonstrating an adverse effect on competition, the court considered asking for reargument of defendants' motion for summary judgment at the March 1, , hearing.
Also, a letter from defendants' counsel dated February 16, , urged the court to reconsider the May 6, , order. Ultimately, the court decided against asking for reargument at that time. The court heard the motions on March 1, , and on March 3, , filed an order ruling on the motions.
Finally, on March 21, , thinking that "after a long period of sweating over this case it was not unfair to ask the plaintiff again to show [the court] the color of his money," Docket No. Upon obtaining a copy of the order later in the day on March 21, , plaintiff inquired of the court and was informed that the focus of the reargument would be defendants' motion for summary judgment.
On Wednesday, March 22, , the court again heard defendants' motion for summary judgment. At the hearing, the court first addressed plaintiff's motion that the court vacate the March 21, , order and postpone the commencement of the trial for 48 hours or, in the alternative, continue the trial and postpone the rehearing on the motion for summary judgment for at least ten days.
In support of the motion, plaintiff's counsel argued that "it is sort of hard to all of sudden reorient yourself back to a Summary Judgment mode from what you were trying to do to put together the efficient, effective presentation of your case. The following dialogue ensued.
Plaintiff had one other problem with rearguing defendants' motion for summary judgment. Without conceding or even suggesting that the record as of May 6, , was inadequate to support the court's initial decision that plaintiff's claims presented a genuine issue for trial, plaintiff in its motion pointed out that, since the partial denial of defendants' motion for summary judgment, it had amassed "additional" evidence in support of its claims which was not in the record.
Addressing this concern, the court stated that it was not "asking that any evidence be put in the record. Instead, the court emphasized that it simply wanted to be directed to evidence in the already voluminous record which would justify submitting plaintiff's case to the jury. The court specifically stated that it would be content to hear "an argument from each side on the Summary Judgment Motion on the state of the record, as it now stands. However, the court pointed out that if plaintiff intended to rely on its "additional" evidence in order to overcome defendants' motion for summary judgment, Fed.
The focus of reargument was the effect of defendants' activities on competition in the relevant market.
During the hearing the court asked questions regarding the price of plastic bottles; output of plastic bottles; evidence of predatory pricing by Southeastern; whether Southeastern's activities had forced any competitors out of the market; and whether there were other competitors in or seeking to enter the market. In attempting to address those questions, plaintiff's counsel was not able to cite the court to any specific portions of the existing record.
Defendants, on the other hand, tendered the final report of their economist the preliminary version of which was filed on September 12, , Docket No. At the end of the hearing, the court concluded that it had not "heard information that justifies denying the Motion for Summary Judgment. However, since the court has for years avoided summary judgment, and had not heard and seen all of plaintiff's evidence, the court denied defendants' motion for summary judgment without prejudice to renewal and ordered that jury selection and trial go forward as scheduled.
The court noted that it intended to "listen to the opening statements because I will need more clarification than I have on exactly what happened. On Thursday, March 23, , a jury was selected and empanelled. After jury selection, defendants renewed their motion for summary judgment. In response to the renewed motion, plaintiff argued that it would offer evidence at trial of at least 18 kinds of anticompetitive effects. For the first time, plaintiff asserted that there would be some evidence of predatory pricing by defendants.
When defendants' counsel pointed out that they had never heard allegations of predatory pricing previously, plaintiff's counsel responded by stating that "there was no occasion to tell them. Without entertaining extended argument, the court noted that it was "still waiting for the evidence which would support a recovery," and suggested that "if [plaintiff has] evidence which will rebut a Summary Judgment Motion, the time for me to see it is Monday and Tuesday.
In response, plaintiff's counsel asserted that they could present some of their evidence if the court would give them 30 minutes. However, when the court offered to remain available for thirty minutes while counsel gathered the evidence, plaintiff's counsel instead promised "to submit something to [the court] in writing Tuesday morning [the first day of trial].
On Tuesday, March 28, , the trial began with counsel making opening statements to the jury. Consistent with the theory stated in the complaint, plaintiff's counsel argued that "[w]hat this case is about is that [ the Bottlers ] set [Southeastern] up in a way so that no one Plaintiff's counsel argued that the "anticompetitive" effects of Southeastern's formation and operation had been "severe": 1 Some "healthy" suppliers had gone out of business; 2 Southeastern had at times experienced quality problems with its bottles; and 3 Consumers of soft drinks had been unable to purchase Coke products in the plastic bottle they preferred.
After opening statements, defendants again renewed their motion for summary judgment. Defendants argued that "[n]othing in the Plaintiff's opening statement indicated that proof will be forthcoming of an adverse effect on competition. Plaintiff's counsel again argued that evidence of lower prices, put forth by defendants' in their opening statements, was a form of competitive injury consistent with a buyer price fixing conspiracy.
After taking the motion under advisement during the luncheon recess, the court concluded that "I had better vote my conscience on the merits now, instead of going through [a trial] first. The court announced its intention to grant defendants' motion for summary judgment, requested that defendants propose findings of fact in accord with the ruling and asked that plaintiff respond to defendants' proposals.
Plaintiff then, after the decision had been announced, filed what it considered to be its response to the court's questions concerning injury to competition and three volumes of a four volume appendix to its response. On March 31, , plaintiff again filed its response and the complete four volume appendix. On April 4, , defendants filed four volumes of evidentiary material in response to plaintiff's March 31, , submissions. On April 5, , defendants filed proposed findings of fact and conclusions of law, twenty-nine pages long, with a one volume evidentiary appendix.
On April 12, , plaintiff filed 1 page response to defendants' proposed findings, 2 one volume of exhibits to its response and 3 a seven volume appendix to its response. On April 24, , plaintiff filed an eight volume appendix of "additional documents and transcript excerpts previously cited in the record. On May 5, , defendant Coke filed additional evidentiary materials. Thus, all in all, after the court's announced decision to grant defendants' motion for summary judgment, a total of over five feet of paper was filed with the court!
As the Supreme Court has noted, Fed. Liberty Lobby, Inc. By relying almost exclusively on quotations from the complaint, on admissions and stipulations, and on Sewell's own internal documents, the court has tried to cut through what is now an approximately thirteen-foot thick record and produce a statement of material facts which are either undisputed or, where a question is disputed, viewed in the light most favorable to plaintiff.
The "substantive law will identify which facts are material. Thus, in setting forth the facts below, the court will be guided by what the Supreme Court has referred to as "the classic statement of the rule of reason. Chicago Board of Trade v. For purposes of deciding defendants' motion for summary judgment, the court has adopted plaintiff's definition of the relevant market.
PTX 14, The court will use the following short forms of citation in the findings and conclusions: 1 Sewell's answers to defendants' joint requests for admission, Docket No.
A"; 5 documents marked by plaintiff as exhibits for trial will be referred to as "PTX"; 6 documents marked by defendants for trial will be referred to as "DTX"; and 7 plaintiff's response to defendants' proposed findings of fact and conclusions of law, Docket No.
Finally, in calling for reargument of the summary judgment motions, the court was content with the already voluminous record. However, the court naturally wanted to see any additional evidence developed by plaintiff in support of its claims, especially if that evidence was necessary to overcome defendants' motion.
As of Wednesday, March 22, plaintiff was aware of the court's concerns about whether a trial was warranted. Plaintiff failed to file any evidence in response to the questions about the impact of defendants' activities on competition until after the court, on March 28, , announced its intention to grant defendants' summary judgment motion.
Therefore, the court has considered all the materials submitted by plaintiff after March 28, , although most of it is irrelevant to the summary judgment motion and much of it would be inadmissible at trial. That evidence does not change the merits of the case. In or about , Sewell, among others, began manufacturing plastic soft drink bottles made of PET material. During the late 's, Sewell became a leading manufacturer of plastic beverage bottles, which readily gained popularity with bottlers and consumers.
Sewell was the first supplier of the two liter plastic beverage bottle to a Coca-Cola bottler, supplying the Spartanburg, South Carolina, bottler in August PTX 6. Dorsey's Annual Report referred to Sewell as the "dominant supplier of the PET 2 liter soft drink package in its marketplace. Sewell had no Virginia plant. As of October , however, there were other suppliers with manufacturing plants located outside North Carolina, South Carolina, and Virginia that were authorized to supply plastic beverage bottles to Coca-Cola bottlers, including bottlers located within those states; and in October , Coca-Cola USA authorized Incon's Columbia, SC, plant to supply plastic beverage bottles to bottlers of Coca-Cola.
According to invoices produced by the bottler defendants, in , with the exception of 15, two-liter bottles shipped by Owens-Illinois to Columbia Coke in May , the only purchases of plastic bottles by bottler defendants located in North Carolina, South Carolina or Virginia were from Sewell or Incon. A para. See Section III. Sewell also was the leading supplier for the defendant Bottlers.
The complaint alleges and the data compiled by the parties confirms that Sewell's sales to the defendant Bottlers in were over million bottles. Complaint para. In Sewell's two-liter "bare bottle" list price i. Sewell Adm. Sewell increased its list prices for two-liter plastic beverage bottles every year from to It is undisputed that not all of Sewell's sales were at list prices, and by , most were not.
Plaintiff's response, Tab 1 at DTX price list effective September 15, Nevertheless, in November, , several of the defendant Bottlers were paying Sewell's list prices. In , Sewell's return on net operating assets was Sewell's profitability in was at least partly due to the fact that without major regional competition its prices remained well above its manufacturing costs. DTX Plaintiff argues that by the number of merchant suppliers had increased and, as a result of an oversupply of this product, merchant suppliers in the Southeast area engaged in substantial price competition.
Plaintiff's response, Tab 1 at 31, In support of this argument, plaintiff has submitted hundreds of "Competitive Price Requests" dated from July, , to October, PTX 16,, Although the evidence was not part of the summary judgment record as of March 28, , what it shows is that there was substantial price competition in the Southeast area beginning in approximately which often caused Sewell to sell plastic bottles at prices lower than its list prices.
Several of the bottler defendants are, or have been, members of SAC. SAC was formed "for the purpose of owning and operating an expensive, high-speed metal can filling line," because "[n]one of its members then sold or now sell a sufficient number of filled metal cans to support the expense of buying and operating a can filling line.
By September , there were eleven canning "cooperatives" operating in the Coca-Cola system. Woodlee Aff. Starting in or about , before the formation of Southeastern, manufacturers of plastic bottle manufacturing equipment began encouraging bottlers to consider self-manufacture of plastic bottles. Sewell Coke Adm. Pepsi-Cola bottlers such as the Pepsi bottler in Cranston, Rhode Island, and Carolina Packaging, the Pepsi plastic bottle manufacturing "cooperative" in Cheraw, South Carolina, began manufacturing plastic bottles for their use before any Coca-Cola bottlers did.
Carolina Packaging was formed in late by Carolina Canners, Inc. In , Western Container, a plastic bottle manufacturing "cooperative" was formed in Big Spring, Texas, by Coca-Cola bottlers; several of these bottlers were members of Southwest Canners, a Coca-Cola bottler canning "cooperative.
In late and early , members of Gulf States Canners, another Coca-Cola bottler canning "cooperative," formed a "cooperative" to manufacture plastic bottles at Gulf States' plant in Clinton, Mississippi. In , the bottler members of SAC decided to pursue the possibility of forming a plastic bottle manufacturing "cooperative" in order to produce bottles for themselves. They formed Southeastern Container in The plant was constructed in Enka, North Carolina, that year and Southeastern began shipping bottles in October, Southeastern sells plastic bottles to its owner-members.
Southeastern does not supply containers to Pepsi or Royal Crown bottlers, or to purchasers of non-beverage containers. Furthermore, "Southeastern does not sell to nonmember [Coke] bottlers nor does it allow its members to re-sell empty bottles to nonmember bottlers.
Plaintiff challenges several aspects of Southeastern's formation and operation as violative of federal antitrust law. The parties agree that a plastic beverage bottle production plant requires some minimum amount of volume to justify the investment in plant and equipment. The parties dispute what minimum amount was necessary in to make self-manufacture economically viable and whether any one of the Bottlers could have engaged in self-manufacture alone.
However, in deciding defendants' motion for summary judgment, this dispute is not material. DTX , Exh. Defendants Adm. After the initial five-year period, the supply contracts allow cancellation "at any time by providing sixty 60 days written notice Long-term supply contracts for such a significant portion of a bottler's requirements were common in the plastic bottle market prior to the formation of Southeastern.
Between and , Sewell entered into five-year supply contracts with more than 50 of its customers. There is evidence that in , Southeastern considered imposing penalties on Asheville Coke and Coke United if they failed to comply with their supply contracts with Southeastern. Nash dep. The court declines to find that discussion of liquidated damages or of requesting a stated sum for violation of an otherwise lawful contract is a violation of the antitrust law or unfair trade practice law.
There is, in fact, an obligation under the law to abide by lawful contracts even though those contracts may later be viewed by the accountants as unprofitable and by the executive officers as uncomfortable.
Moreover, Southeastern's board of directors had a fiduciary obligation to enforce the supply contracts. A demand that an otherwise lawful contract be respected and complied with does not convert the contract into an unlawful agreement. Southeastern's member bottlers within a mile radius of Asheville, North Carolina pay the same price for bottles purchased from Southeastern, including delivery.
The use of a delivered price equalizes the freight costs among the Bottlers, "so that no owner-bottler would enjoy a lower transportation cost by reason of its geographic proximity to Southeastern. A Sewell competitive information report, dated October 31, , states that Carolina Packaging quoted delivered prices to its members in a mailing on October 23, , and that "[f]reight costs are divided equally among the membership.
The Bottlers were obligated to accept Southeastern's set price for the first year of their supply contract. Sewell's contracts normally required it to meet a lower price by a "reputable supplier" or allow the bottler to purchase elsewhere. However, by , Sewell's contracts began to exclude "inplant production, bottle co-op organization and self-manufacturing" from their definition of "reputable supplier.
There is ample evidence from Sewell's internal documents that it considered and pursued a strategy of offering pricing concessions to certain of the defendant Bottlers in order to make the "investment of self-manufacture unattractive" and prevent "South Atlantic Canners from obtaining the necessary volume to support machinery.
Southeastern's computer records reflect the following invoice prices for two-liter bottles per thousand, delivered to its member-bottlers from through Stipulation A, para. Southeastern's invoice prices are subject to year-end adjustments. Southeastern's computer records reflect that Southeastern has never increased invoice prices which are subject to year-end adjustment in its history. It is undisputed that: 1 Sewell's prices in the Southeast area for two-liter bottles have declined from through ; 2 Sewell's prices for three-liter and ounce bottles have declined through ; and 3 prices of other suppliers in the market also have declined.
See PTX 14,A calculated from plaintiff's data submitted after March 28, , by summing revenues from all plants and dividing by total unit sales. See also DTX , Table 4. There is no evidence in the original summary judgment record of below cost pricing by Southeastern. Sewell's only allegation of below cost pricing, advanced for the first time after jury selection on March 23, see Docket No. It is undisputed that Southeastern began manufacturing three-liter bottles in January, PTX There is no evidence that the sales in January and February, , were made below Southeastern's incremental or variable costs.
PTX at Exhibit B. Plaintiff contends that from through , PET resin prices were a factor in declining plastic bottle prices. Because "[s]uppliers have no control over resin prices," Sewell contends that any decreases in plastic bottle prices which correspond to decreasing resin prices were not caused by the formation and operation of Southeastern.
The court of course agrees that the formation and operation of Southeastern is not the sole cause of the decrease in plastic bottle prices from to The parties adopted different theoretical methods of measuring output of plastic bottles in the Southeast area. Plaintiff focuses on sales and defendants focus on production. Thus, the court finds that there is no genuine dispute as to the material facts regarding output in the relevant market. Because defendants' analysis of the data is more complete they set forth data on output of one liter bottles supplied to them by Sewell and then aggregate across different bottle sizes by converting the data into "equivalent cases"  , the court will refer to defendants' results as set forth in Table 4.
Total output of plastic bottles in the relevant market has increased substantially every year from to Total output increased from Also, total output in the relevant market by suppliers other than Southeastern also increased every year from to See Table 4.
The parties stipulated that the number of suppliers with manufacturing plants located in the relevant market has remained the same since the formation of Southeastern through the end of In , PSP was sold to Johnson Controls, and Constar Sewell's parent company purchased four of Owens-Illinois' plastic soft drink bottle manufacturing plants, including its one plant in the Southeast area Birmingham, Alabama.
As of December 31, , there were five companies having plants physically located in the Southeast area: Sewell, Southeastern, Carolina Packaging, Johnson Controls, and Amoco.
Market concentration has de creased since Southeastern was formed. In , before Southeastern's formation, Sewell had a In , the largest producer was Southeastern with a The Herfindahl-Hirschman Index "HHI" , a measure of market concentration derived by summing the squares of the market shares of the individual competitors, decreased from in to in DTX , Table 7. See F. PPG Industries, Inc. Plaintiff states that "average retail soft drink prices to the consumer in two and three liter plastic bottles declined from to throughout the United States.
Plaintiff does not dispute that: 1 average retail prices for soft drinks to the consumer in two and three liter plastic bottles, in the Southeastern United States as defined by A. Nielsen Co. Although this decision does not depend upon a causal connection between the formation of Southeastern and lower soft drink prices, it is true that lower soft drink bottle prices facilitate lower retail soft drink prices.
Plaintiff states that "[p]roduction costs for plastic soft drink bottles were declining before Southeastern was formed.
Peacher aff. Production costs have continued to decline since Southeastern was formed. For example, Sewell's standard cycle time for production of plastic bottles steadily decreased from through January, PTX 14,, Table 7. Various Sewell internal documents state that Sewell must continue to reduce production costs in order to compete with cooperatives.
It is undisputed that certain companies have decreased research and development expenditures; they got out of the plastic bottle making business! However, the evidence does not support a finding that overall research and development expenditures have decreased or increased.
Since Southeastern was formed, new bottle sizes and types have been introduced in the market and as discussed, supra, production processes have become more efficient.
There is evidence that Southeastern has at times experienced quality problems with its bottles. However, the evidence does not support a finding that overall quality or overall service in the market has declined since the formation of Southeastern. A Sewell internal document suggests that competition from cooperatives has provided an impetus for Sewell to improve the quality of its bottles. DTX at 2. Because the Coca-Cola bottlers sell products of The Coca-Cola Company in exclusive territories, the decision by a Coke bottler to sell its product in a certain type of package will necessarily deprive consumers in its territory of choice to buy Coke products in a different type of package.
Sewell argues that by choosing to sell its products in the one-piece bottle manufactured by Southeastern, the Bottlers "forfeited the consumers' indisputable preference for the two-piece bottle. Although there is evidence that in some surveys consumers, other things being equal, preferred the two-piece bottle with a base cup to the one-piece "petaloid" design, there is no evidence that consumers prefer a two-piece bottle over a less expensive one-piece bottle.
Plaintiff does not allege that Southeastern has the ability to sell its bottles at prices above those that would be charged in a competitive market. Southeastern's share of the Southeast area market was Sewell's acquisition of Owens-Illinois gave Sewell a Sewell's president testified that competition from other suppliers would prevent Sewell from increasing prices as a result of the acquisition.
Nickels dep. Thus, there is no reason to infer market power solely on the basis of Southeastern's market share or its potential market share if it supplied all of the Bottlers' requirements. Furthermore, there is no evidence that Southeastern could charge supracompetitive prices if it attempted to increase its market share by selling plastic bottles to bottlers other than Coke bottlers. During the March 22, , reargument, plaintiff's counsel admitted that since the formation of Southeastern, Sewell and the other competitors in the Southeast area market "fight like cats and dogs" on price, service and quality for the business of plastic bottle purchasers in the Southeast area other than the defendant Bottlers.
Given the strength of Sewell and the other "major" players in the Southeast area market such as Amoco and Johnson Controls, see Docket No. Plaintiff has consistently argued that defendants have engaged in a buyer price-fixing conspiracy, in which the object is to depress market prices below the competitive level through combined purchasing power.
In the complaint plaintiff alleges that:. The complaint itself casts doubt on plaintiff's theory that the Bottlers as a group of buyers possess market power, because it acknowledges that Sewell rejected the Bottlers' requests for lower prices.
Plaintiff now alleges that the Bottlers "successfully obtained lower-than-market price offers from Sewell through combined purchasing power" before the formation of "Southeastern.
See Docket No. Sewell's plant, if the group would commit at least 40 to 42 million bottles annually to Sewell for a period of three years.
Sewell's plant. Not surprisingly, Sewell further admits that the price to Atlanta Coke was less than the price offered to the members of South Atlantic Canners as a group. Thus, there is simply no evidence that the Bottlers received offers from Sewell below prices being offered to others in the Southeast area and, in any event, no allegation that the offers made by Sewell would have been sales below cost or otherwise unprofitable.
The final data compiled by defendants for use at trial confirms these admissions. DTX , Table 8. Sewell is the largest producer of plastic soft drink containers in the country.
Sewell has made a profit on its plastic container operations every year since For the twelve months ending November, , Sewell's return on net operating assets was Although there is not specific data on the profitability of other competitors, there is evidence that after the formation of Southeastern: 1 Incon went out of business and its plant was acquired by PSP; 2 PSP was sold to Johnson Controls; and 3 Constar Sewell's parent purchased Owens-Illinois' plant in the Southeast area.
Sewell admits that the Owens-Illinois plants acquired by Constar had been profitable when operated by Owens-Illinois. Sewell also admits that PSP's sales and profits increased each year from to During the March 22, , reargument, the court engaged plaintiff's counsel in the following dialogue:. Johnson Controls is the second largest merchant supplier of plastic beverage bottles in the country. See Sewell Adm. Johnson Controls' stated reason for purchasing PSP was a desire to have a manufacturing plant for plastic beverage bottles in the Southeast area.
In fact, when Constar purchased the four plants from Owens-Illinois in , Johnson Controls was also interested in acquiring those plants. The May 6, , partial denial of defendants' motion for summary judgment was an interlocutory order. Bon Air Hotel, Inc. Time, Inc. Grier Brothers Co. Dayton-Hudson Corp. Thus, vacating the May 6, , order was within the court's power and is reviewed under an abuse of discretion standard.
Bon Air, F. The court was "free in its discretion to grant a reargument based either on all the evidence then of record or only evidence before the court when it rendered its interlocutory decision, or to reopen the case for further evidence.
Even if no new material is presented, reconsideration of a previously denied summary judgment motion is proper because "the court was not bound to perpetuate error if it later believed it had committed such. Share values will be wiped out, but not from a great height. Share values closed at 4 cents Tuesday after closing at 15 cents Monday, the newspaper said.
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