Investors Corp. of Vermont v. Bayer AG, No. 1011-04 Cncv (Norton, J., June 1, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from
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STATE OF VERMONT
Chittenden County, ss.:



INVESTORS CORPORATION OF VERMONT

v.

BAYER AG, ET AL.



                                          ENTRY
       This matter concerns allegations of unfair trade practices. The plaintiff, Investors
Corporation of Vermont, has sued the defendants for allegedly restraining trade of
Ethylene Propylene Diene Monomer (EPDM), a component of Ethylene-propylene
elastomers, which are the third-most common forms of synthetic rubber in the world.
Investors Corporation seeks to form a class of all Vermont persons or business entities
that indirectly purchased EPDM from the defendants from January 1994 through
December 2002. Investors Corporation claims violations of 9 V.S.A. §§ 2453, 2465
(Vermont antitrust law) and 9 V.S.A. §§ 2543, 2461 (Vermont consumer fraud law), as
well as unjust enrichment.
        Defendant ExxonMobile Chemical Corporation moves for more definite statement
pursuant to V.R.C.P. 12(e). ExxonMobile argues that Investors Corporation’s complaint
fails to adequately specify the activities constituting violations of antitrust and consumer
fraud laws.
       Rule 12(e) provides that “[i]f a pleading to which a responsive pleading is
permitted is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement before interposing
a responsive pleading.”
              [T]he class of pleadings that are appropriate subjects for a motion under
              Rule 12(e) is quite small—the pleading must be sufficiently intelligible for
              the court to be able to make out one or more potentially viable legal
              theories on which the claimant might proceed, but it must not be so vague
              or ambiguous that the opposing party cannot respond, even with a simple
              denial, in good faith or without prejudice to himself.
5A C. Wright & A. Miller, Federal Practice and Procedure § 1376, at 725 (Supp. 2003).
        In antitrust cases such as this one, there is technically no special requirement that
facts be pled in particularity. Nagler v. Admiral Corp., 248 F.2d 319, 322–24 (2d Cir.
1957). Courts have noted, however, that because of the large expense of discovery, trial
courts “may require some minimal and reasonable particularity in pleading before they
allow an antitrust case to proceed.” Cayman Exploration Corp. v. United Gas Pipe Line
Co., 873 F.2d 1357, 1359 n.2 (10th Cir. 1989) (citing Associated Gen. Contractors of
Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983)).
        In general, though, an antitrust complaint must simply and unambiguously aver
the existence of a combination or conspiracy, how this combination or conspiracy
transpired, and the overall time of the alleged combination or conspiracy. See, e.g., OMB
Police Supply, Inc. v. Elbeco, Inc., 2001 WL 681575, *6 (D. Kan. 2001) (“Defendants
are entitled . . . to know the approximate time when the alleged conspiracy took place and
ended. Plaintiff is not required to set forth the time when each transaction took place and
in fact may not be in a position to give these exact dates.”); Carolina Scenic Stages, Inc.
v. Greyhound Corp., 38 F.R.D. 313, 316–17 (E.D.S.C. 1965) (“[P]laintiff should set forth
in its complaint when the alleged conspiracy initially began and ended. The time when
each alleged act took place is not required in order for defendant to prepare an answer,
and . . . would be too great a burden to impose upon plaintiff . . . .”).
       Those cases that warrant a more definite statement (or in the absence of a more
definite statement, dismissal) typically involve complaints that merely recite the statutory
language without any alleged behavior on the part of the defendants. See, e.g., Mountain
View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1388–87 (10th Cir. 1980)
(holding dismissal proper where amended complaint merely alleged tying arrangements
and conspiracy among 28 defendants, but approving of portion of complaint that
identified specific companies involved in conspiracy); Heart Disease Research Found. v.
Gen. Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972) (“Although the Federal Rules permit
statement of ultimate facts, a bare bones statement of conspiracy or of injury under the
antitrust laws without any supporting facts permits dismissal.”); John’s Insulation, Inc. v.
Siska Constr. Co., 774 F. Supp. 156, 163 (S.D.N.Y. 1991) (“A general allegation of
conspiracy . . . is a mere allegation of a legal conclusion and is inadequate of itself to
state a cause of action.”).
        Here, ExxonMobil argues that Investors Corporation should, at a minimum,
identify specific meetings at which ExxonMobil conspired with other defendants to set
prices of EPDM, specific coordinated price hikes, and specific market allocations. This
type of pleading goes beyond the “short and plain statement of the claim” required by
V.R.C.P. 8(a). Moreover, such pleading would produce more verbiage than is helpful at
this stage in the proceedings.
              [P]leading of the evidence is surely not required and is on the whole
              undesirable. It is a matter for the discovery process, not for allegations of
              detail in the complaint. The complaint should not be burdened with
              possibly hundreds of specific instances; and if it were, it would be
              comparatively meaningless at trial where the parties could adduce further
              pertinent evidence if discovered. They can hardly know all their evidence,
              down to the last detail, long in advance of trial. The sad truth is that these
              cases are likely to prove laborious in any event and that there is no real
              substitute for trial, although pre-trial conferences and orders may greatly speed
              the result. . . . [M]otions for particulars will not serve that purpose of
              particularizing antitrust issues, and Orders for more definite statements
              ordinarily do not result in furtherance of the solution of the big case.
Nagler, 248 F.2d at 326 (internal citations and quotes omitted). Hence, the specifics that
ExxonMobil desires are better addressed through the discovery process and at summary
judgment, if such a motion materializes.
      This is not a case where the pleadings merely restate the antitrust statutes and fail
to make any allegations of behavior on the part of the defendants. Rather, Investors
Corporation alleges meetings among the defendants during the period of the conspiracy




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and provides specific evidence of a coordinated price hike.1 These are sufficient facts to
place ExxonMobil on notice of the alleged violations.
                                           ORDER
     For the foregoing reasons, ExxonMobil’s motion for a more definite statement is
DENIED.


       Dated at Burlington, Vermont, June 1, 2005.



                                                             _________/s/_______________
                                                                 Richard W. Norton Judge




         1
           Courts may consider circumstantial evidence in assessing whether antitrust violations
   occurred. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1361 (10th
      Cir. 1989). The alleged coordinated price hikes provide such circumstantial evidence here.


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