Premier Concrete LLC et al v. Argos North America Corp. et al
OPINION AND ORDER disposing of the following motions: 92 Thomas Defendants' Motion to Dismiss; 94 Holcim's Motion to Dismiss ; 95 Giant's Motion to Dismiss for Failure to State a Claim; 97 Joint Motion to Dismiss for Failu re to State a Claim; 100 Evans Defendants' Motion to Dismiss for Failure to State a Claim and 102 Cemex Defendants' Motion to Dismiss for Failure to State a Claim. All claims by Plaintiffs Keith and Joy Woods are DISMISSED. All cla ims by Premier are DISMISSED; however, within 21 days after entry of this Order, it will be permitted to file an Amended Complaint consistent with the Court's rulings. Defendants shall have 14 days thereafter to respond to the Amended Complaint. Signed by Judge Steven D. Grimberg on 03/31/2021. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
PREMIER CONCRETE LLC, KEITH WOODS,
and JOY WOODS,
Civil Action No.
ARGOS NORTH AMERICA CORP., et al.,
OPINION AND ORDER
Antitrust laws “are designed to protect the consumer interest in
competition.”1 Here, Plaintiffs initiated this antitrust lawsuit against fifteen
Defendants for operating two separate “cartels” in the markets for cement and for
ready-mix concrete in the coastal areas of Georgia and South Carolina. Cement is
the central ingredient in ready-mix concrete. Defendants purportedly used the
cartels to exclude Plaintiffs from the ready-mix market, steal their customers, and
undercut them on price. The conspiracies allegedly started in 2009, but Plaintiffs
did not initiate suit until January 2020. All Defendants moved to dismiss on
various grounds.2 These motions are now fully briefed and ripe for consideration.
Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 721 (11th Cir. 1984)
(per curiam) (citing Reiter v. Sonotone Corp., 442 U.S. 330 (1979)).
ECF 92; ECF 94; ECF 95; ECF 97; ECF 98; ECF 100; ECF 102.
The Complaint asserts that there are two separate, but related, cartels
operating in coastal Georgia and southeast coastal South Carolina.4 The first—the
“Cement Cartel”—is comprised of the Argos Defendants; Holcim (US) Inc.; Giant
Cement Company; and the Cemex Defendants (collectively, the Cement
Defendants).5 The Cement Defendants are horizonal competitors and allegedly
agreed to fix cement prices and monopolize the regional market.6
The second cartel—the “Ready-Mix Cartel”—was formed by the Argos,
Elite, Evans, and Thomas Defendants (collectively with Defendant Coastal
For purposes of this Order, the Court treats the well-pleaded allegations of the
Complaint as true. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 (11th Cir.
1999) (“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.”).
ECF 1, ¶ 1.
Id. ¶ 2.
The Argos Defendants are Argos North America Corp. and Argos Ready Mix,
LLC; the Cemex Defendants are Cemex, Inc.; Cemex Materials, LLC; and
Cemex Southeast, LLC.
A horizontal restraint of trade is defined as one that is “imposed by agreement
between competitors at the same level of distribution.” Restraint of Trade,
horizontal restraint, BLACK’S LAW DICTIONARY (11th ed. 2019).
Concrete Southeast II LLC, the Ready-Mix Defendants).7 These Defendants are
also horizontal competitors and allegedly engaged in various anticompetitive
activities for the purpose of fixing, raising, and stabilizing the price of ready-mix
concrete.8 Because Plaintiff Premier Concrete LLC (Premier) refused to participate
in this cartel, it was subject to a group boycott.9 The members of the Ready-Mix
Cartel had a combined market share of 80% at all relevant times.10
Id. ¶ 3.
The Elite Defendants are Elite Concrete, LLC; Elite Concrete Holdings, LLC;
and Elite Concrete of SC, LLC. The Evans Defendants are Evans Concrete
Holdings, Inc. and Evans Concrete, LLC. The Thomas Defendants are Thomas
Concrete, Inc.; Thomas Concrete of Georgia, Inc.; and Thomas Concrete of
South Carolina, Inc.
Although Defendant Coastal Concrete Southeast II LLC (Coastal) is
purportedly a ready-mix concrete company, id. ¶ 22, the Complaint sometimes
includes and sometimes omits it as a member of the Ready-Mix Cartel. Compare
id. ¶ 3 with id. ¶ 29. For purposes of this Order, the Court treats Coastal and
the Thomas Defendants as separate alleged members of the Ready-Mix Cartel.
Although the Complaint indicates Coastal Concrete Company, Inc. is a
defendant, this is not accurate. No summons was issued to it and it does not
appear to have ever been served with process. According to the Complaint it
was purportedly acquired by one of the Thomas Defendants in 2015. Id. ¶ 22.
This discrepancy is immaterial for purposes of this Order.
Id. ¶ 3.
Id., Count IV.
Id. ¶ 29.
According to Plaintiffs, the members of both cartels have conspired since at
least 2009 to fix prices.11 Since cement is the central ingredient of ready-mix
concrete, the Argos Defendants are allegedly able to use their dominant position
in the cement market to further the interests of the Ready-Mix Cartel.12 In so doing,
the Ready-Mix Cartel is able to keep new competitors out of the industry or run
them out of business if they succeed in starting up.13
Premier was in the ready-mix concrete business, supplying concrete for
residential and commercial projects in southeast Georgia and coastal South
Carolina.14 Plaintiffs Keith and Joy Woods own Premier, but sold all of its
operational assets in January 2019.15 Plaintiffs assert that Premier was a target of
the Ready-Mix Cartel.16 The cartel members allegedly engaged in assorted
predatory conduct, including tailing Premier’s trucks to job sites and then
undercutting Premier’s pricing to those customers.17 The Argos Defendants
Id. ¶ 5.
Id. ¶¶ 7–11.
See, e.g., id. ¶¶ 7, 11, 47.
Id. ¶ 18.
Id. ¶¶ 32, 35.
Id. ¶¶ 35, 35.f.
purportedly undercut Premier’s pricing shortly before it was scheduled to pour a
concrete job, while at the same time refusing to sell Premier the cement necessary
to create the concrete.18
Because Premier refused to join the Ready-Mix Cartel, it was allegedly
charged supra-competitive prices for cement.19 It lost money from 2009 through
2013 because of Defendants’ anti-competitive conduct; the Woods, however, assert
that they did not understand the nature of this conduct at the time.20 Plaintiffs also
allege that they did not have inquiry notice of Defendants’ illicit conduct until
August 2017, and could not have discovered the conspiracies before September
2018.21 Plaintiffs contend that Defendants actively worked to conceal their
behavior from their victims and the public, and that Defendants’ conduct was
Id. ¶¶ 72–73.
Id. ¶ 65.
Id. ¶¶ 68–69.
Id. ¶¶ 74, 76–79.
Id. ¶¶ 80–81, 83.
Plaintiffs filed suit on January 22, 2020.23 As to the Ready-Mix Defendants,
Plaintiffs allege violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, because
of the cartel’s “joint monopolization” of the ready-mix concrete market, which was
maintained through anticompetitive and exclusionary conduct (Count I). Plaintiffs
also assert causes of action against the Ready-Mix Defendants for attempted
monopolization in violation of Section 2 (Count II); conspiracy to monopolize in
violation of Section 2 (Count III); conspiracy to restrain trade (group boycott) in
violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (Count IV); and tortious
interference with business relations under Georgia common law (Count X).
Plaintiffs assert causes of action against the Argos Defendants for monopolization
and attempted monopolization of the cement market in violation of Section 2
(Counts V and VI). As to the Cement Defendants, Plaintiffs allege a violation of
Section 1 for conspiracy to restrain trade through price fixing (Count VII). Count
IX for restraint of trade in violation of O.C.G.A. § 13-8-2 appears to be asserted
against all Defendants.
See generally ECF 1.
Plaintiffs contend that they lost profits and suffered other damages as a
result of Defendants’ conduct, and were forced to sell the business for less than
they would have absent the illicit behavior.24 They seek a declaratory judgment
that the Cement Defendants attempted to and did maintain an illegal monopoly
and engaged in a conspiracy to restrain trade, and that the Ready-Mix Defendants
attempted to and did maintain an illegal joint monopoly (Count VIII). Plaintiffs
also seek treble damages; attorneys’ fees and expenses; and permanent injunctive
relief.25 All Defendants moved to dismiss, asserting various theories such as the
running of the statute of limitations and failure to state a claim under Rule
12(b)(6).26 Plaintiffs filed opposition briefs,27 and Defendants replied.28
Id. ¶ 13.
Id. at 57–58.
Although the Complaint’s ad damnum clause seeks a temporary restraining
order against Defendants, id. at 57 ¶ A, Plaintiffs have not filed a separate
motion seeking such relief.
ECF 92; ECF 94; ECF 95; ECF 98; ECF 100; ECF 102.
The Ready-Mix Defendants, along with Holcim filed a joint motion to dismiss
(the Joint Motion). ECF 97.
ECF 130 through ECF 136.
ECF 141 through ECF 146.
Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this standard does not require “detailed factual allegations,” the
Supreme Court has held that “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), “a complaint must now contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 570).
A complaint is plausible on its face when a plaintiff pleads sufficient factual
content for the court to draw the reasonable inference that the defendant is liable
for the conduct alleged. Am. Dental Ass’n, 605 F.3d at 1289 (citing Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678. Although the Court must accept all well-pleaded facts as true, it
“need not accept inferences drawn by plaintiff if such inferences are unsupported
by the facts set out in the complaint” or “accept legal conclusions cast in the form
of factual allegations.” In re Delta/Airtran Baggage Fee Antitrust Litig., 733
F. Supp. 2d 1348, 1358 (N.D. Ga. 2010) (citing Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994)). See also Iqbal, 556 U.S. at 678 (court need not accept
legal conclusions in pleading); Spanish Broad. Sys. of Fla., Inc. v. Clear Channel
Commc’ns, Inc., 376 F.3d 1065, 1079 (11th Cir. 2004) (noting that “conclusory
allegations, unsupported by specific factual allegations, do not state a claim for
relief under the antitrust laws”).
The Woods lack standing to assert their antitrust claims.
Plaintiffs Keith and Joy Woods owned Premier.29 In January 2019, they sold
all of its “operational assets” to non-party Smyrna Ready Mix.30 Plaintiffs allege
that they “have suffered lost profits and other damages resulting from the cartel’s
conduct” and that Premier lost value.31 They contend that Keith Woods had to
“ramp up” another business to keep Premier afloat because of the cartels’
conduct.32 All Defendants argue that the Woods lack standing to sue.33 For
ECF 1, ¶¶ 18–19.
Id. ¶ 13.
Id. ¶ 70.
ECF 95-1, at 8; ECF 97-1, at 35–37; ECF 102-1, at 24.
example, the Joint Motion asserts that the Complaint fails to allege that either Keith
or Joy Woods was a ”customer or a competitor in either the ready-mix or cement
markets in which competition was allegedly harmed.”34 Plaintiffs respond that the
Woods “were in essence competitors of Defendants” because they owned
Article III of the Constitution limits federal courts to consideration of cases
and controversies. U.S. Const. art. III, § 2. The doctrine of standing “is an essential
and unchanging part of the case-or-controversy requirement of Article III.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). In addition to the Article III “case or
controversy” requirement, an antitrust plaintiff must also demonstrate antitrust
standing. Fla. Seed Co. v. Monsanto Co., 105 F.3d 1372, 1374 (11th Cir. 1997); Todorov
v. DCH Healthcare Auth., 921 F.2d 1438, 1448 (11th Cir. 1991). “Antitrust standing
is best understood in a general sense as a search for the proper plaintiff to enforce
the antitrust laws.” Todorov, 921 F.2d at 1448 (citation omitted). Antitrust standing
therefore “involves more than the ‘case or controversy’ requirement that drives
constitutional standing.” Id. (citing Flast v. Cohen, 392 U.S. 83, 94–101 (1986)). This
is to prevent overdeterrence resulting from the threat of treble damages. Id. at 1449.
ECF 97-1, at 35–36.
ECF 130, at 27 (emphasis added). See also ECF 131, at 13.
To determine whether a plaintiff has antitrust standing, the Court must first
analyze whether that person has suffered an “antitrust injury”—that is, the type
of injury antitrust laws were intended to prevent. Fla. Seed Co., 105 F.3d at 1374;
Todorov, 921 F.2d at 1449. Standing is a question of law. Fla. Seed Co., 105 F.3d at
1374; Todorov, 921 F.2d at 1448. “The injury should reflect the anticompetitive effect
either of the violation or of anticompetitive acts made possible by the violation.”
Todorov, 921 F.2d at 1449 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477, 489 (1977)). Second, the Court must assess whether that person is an
“efficient enforcer of the antitrust laws.” Id.
Here, there are no allegations in the Complaint that either of the Woods
suffered any type of injury—antitrust or otherwise—as a result of Defendants’
conduct. Each cause of action asserts only that Premier was harmed by
Defendants.36 Even the prayer for relief is only on behalf of Premier.37 Plaintiffs
argue that, as the owners of Premier, the Woods were directly injured, but cite no
case law in support of this theory.38 Nor are there any allegations in the Complaint
that the Woods were the target of Defendants’ alleged conspiracies. To have an
ECF 1, ¶¶ 91, 96, 102, 108, 113, 117, 123, 125, 131, 133, 136–38.
Id. at 57–58.
ECF 130, at 27.
antitrust injury, the plaintiff “must be one against whom anticompetitive activity
is directed, and not one who has merely suffered indirect, secondary, or remote
injury.” Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 710 (11th Cir.
1984) (per curiam) (citing Jeffrey v. Southwestern Bell, 518 F.2d 1129 (5th Cir. 1975)).
See also Nat’l Independent Theatre Exhibitors, Inc. v. Buena Vista Distrib. Co., 748 F.2d
602, 608 (11th Cir. 1984) (“The plaintiff must be the target against which
anticompetitive activity is directed.”) (citations omitted). It is clear from the
Complaint that Defendants’ purported conduct was not directed at any
individual, much less that it was specifically directed at the Woods.39
The Woods’s status as the owners of Premier does not imbue them with
antitrust standing. In Florida Seed Co. v. Monsanto Co., the Eleventh Circuit held that
the sole shareholder of a company that had its distributorship agreement
terminated after a merger of two of its suppliers was “not a customer or competitor
in any relevant market.” 105 F.3d at 1375. The shareholder had not suffered an
antitrust injury: “Courts uniformly have held that stockholders, even sole
stockholders . . . lack standing to bring an antitrust suit for injury to their
corporations.” Id. at 1376 (citations omitted). See also Nat’l Independent Theatre
See generally ECF 1.
Exhibitors, 748 F.2d at 608 (holding that officer/shareholder of target company of
alleged conspiracy did not have standing because he had not suffered an antitrust
injury); Midwestern Waffles, 734 F.2d at 711–12 (holding that plaintiff shareholder
of company pressing antitrust violations did not have standing, despite allegations
that he lost opportunities and incurred expenses because of defendants’ antitrust
conduct). Put another way, “[t]he law on standing in this situation is clear. Neither
an officer nor an employee of a corporation has standing to bring an action in his
own right for an antitrust violation causing injury to the corporation and its
business.” Nat’l Independent Theatre Exhibitors, 748 F.2d at 608 (citations omitted).
While “[s]uch persons may suffer ‘indirect’ or ‘secondary’ financial injury from
antitrust violations, [ ] they are not the target of the anticompetitive practices.” Id.
at 608 (citation omitted).
Therefore, the Woods do not have standing to assert claims against
Defendants. They are DISMISSED from this action.
Premier’s Sherman Act claims are barred by the statute of
limitations (Counts I through VII).
All Defendants assert a statute of limitations defense.40 Under the Clayton
Act, the statute of limitations applicable to civil claims under Sections 1 and 2 of
the Sherman Act is four years. 15 U.S.C. § 15b.
Generally, a cause of action accrues and the statute
begins to run when a defendant commits an act that
injures a plaintiff’s business. . . . In the context of a
continuing conspiracy to violate the antitrust laws . . .
this has usually been understood to mean that each time
a plaintiff is injured by an act of the defendants a cause
of action accrues to him to recover the damages caused
by that act and that, as to those damages, the statute of
limitations runs from the commission of the act.
Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 338 (1971) (citations omitted).
Thus, “a plaintiff must file [a] claim within four years following defendant’s
injurious act.” Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 827
(11th Cir. 1999) (citing 15 U.S.C. § 15(b)).
The statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c)(1).
Generally, the existence of such an affirmative defense “will not support a motion
to dismiss.” Quiller v. Barclay’s Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984)
See generally ECF 94-1; ECF 95-1, at 26–28; ECF 97-1, at 37–43; ECF 98, at 3–5;
ECF 102, at 28–29. The Argos, Elite, Evans, and Thomas Defendants, as well as
Coastal, also adopt and incorporate by reference the limitations argument
raised in Holcim’s separate brief (ECF 94-1). ECF 97-1, at 29 n.44.
(citations omitted). “Nevertheless, a complaint may be dismissed under Rule
12(b)(6) when its own allegations indicate the existence of an affirmative defense,
so long as the defense clearly appears on the face of the complaint.” Id. When this
is the case, the pleading “has a built-in defense and is essentially self-defeating.
The problem is not that plaintiff merely has anticipated and tried to negate a
defense he believes his opponent will attempt to use against him; rather plaintiff’s
own allegations show that the defense exists.” Quiller, 727 F.2d at 1069 (cleaned
up). Thus, if the limitations defense is clear from the face of the Complaint, Premier
cannot recover for any acts that injured it more than four years before the case was
started—i.e., January 22, 2016—unless there is some basis for tolling. Morton’s Mkt.,
198 F.3d at 827, 828 n.2, 832. See also Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195,
1197 (11th Cir. 2013) (per curiam).
Although raised at varying points in separate motions, all Defendants argue
that Premier’s claims are time-barred and that it has failed to plead fraudulent
concealment with sufficient particularity sufficient to establish equitable tolling.41
Premier responds that its price-fixing allegations constitute conduct that can be
ECF 97-1, at 37–43. See also ECF 94-1, at 9–14; ECF 95-1, at 26–28; ECF 102, at
self-concealing and that it has alleged affirmative acts undertaken by Defendants
to hide their misconduct.42
Premier fails to allege it suffered an injury within four years
before it initiated this action.
As a threshold matter, the Complaint alleges that Premier was harmed from
2009 through 2013.43 Although the Complaint alleges antitrust violations by the
Ready-Mix Cartel after that point, it does not suggest that Premier suffered any
injury as a result.44 Similarly, Premier does not allege that it suffered any injury
after 2013 because of the Cement Cartel.45 Since the face of the Complaint makes
clear that Premier was last injured more than four years before the Complaint was
filed, its claims are time-barred absent some exception. 15 U.S.C. § 15(b); Morton’s
Mkt., 198 F.3d at 827; Quiller, 727 F.2d at 1069.
Premier fails to plausibly allege an injury sufficient to
establish a cause of action for a continuing antitrust
For an “alleged continuing conspiracy to violate antitrust laws, a new cause
of action accrues after the defendant commits (1) an overt act in furtherance of the
ECF 130, at 24–27.
See generally ECF 1, ¶¶ 67–70.
Id. ¶¶ 65–75.
Id. ¶¶ 67–70.
antitrust conspiracy or (2) an act that by its very nature constitutes a continuing
antitrust violation.” Bray v. Bank of Am. Corp., 784 F. App’x 738, 741 (11th Cir. 2019)
(cleaned up) (citing Morton’s Mkt., 198 F.3d at 827–28). An overt act includes, for
instance, a plaintiff purchasing a good the price of which was set through price
fixing. Morton’s Mkt., 198 F.3d at 828. A new cause of action would accrue with
each purchase, and the statute of limitations would start to run from that accrual.
Id. The cause of action must be based on an injury to the plaintiff that occurs during
the limitations period. Bray, 784 F. App’x at 741.
Premier, however, fails to allege that it suffered any actual harm during the
limitations period. Nor has Premier timely alleged a “continuing violation” of the
antitrust laws that caused it injuries over a period of time. Morton’s Mkt., 198 F.3d
at 828. By causing “continuing and accumulating harm,” an antitrust violation
occurs each time a plaintiff is injured by that act. Id. (cleaned up). The Supreme
Court has described an example of a continuing violation as:
[A] price–fixing conspiracy that brings about a series of
unlawfully high priced sales over a period of years, each
overt act that is part of the violation and that injures the
plaintiff, e.g., each sale to the plaintiff, starts the statutory
period running again, regardless of the plaintiff’s
knowledge of the alleged illegality at much earlier times.
Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997) (cleaned up).
To avail itself of the “continuing violation” rule, Premier must identify
“some injurious act actually occurring during the limitations period, not merely
the abatable but unabated inertial consequences of some pre-limitations action.”
Bray, 784 F. App’x at 741 (cleaned up). Reading the pleading in a light most
favorable to Premier, the Complaint alleges that the Ready-Mix Cartel engaged in
price-fixing efforts.46 Similarly, the pleading contains allegations that the Cement
Cartel worked to make it difficult or impossible for companies that did not
participate in the Ready-Mix Cartel to obtain materials necessary to make
concrete.47 The Cement Cartel also allegedly engaged in price-fixing.48 However,
none of these acts are alleged to have caused Premier injury during the limitations
A price-fixing conspiracy that occurred outside of a limitations period could
cause injury to a plaintiff within a limitations period if the plaintiff continued to be
subject to the “unlawfully high priced sales” during that time. Morton’s Mkt., 198
F.3d at 828. But Premier has failed to identify any sales to it or other injury within
four years of filing the Complaint. There is no allegation that Premier made any
Id. ¶¶ 6–11.
Id. ¶¶ 31.e., 35.b., 35.k., 35.l., 35.n.
Id. ¶¶ 31.f., 35.e., 35.j., 35.n., 48.
purchase after 2013 of any product for which the price was artificially affected
because of the Ready-Mix Cartel’s or the Cement Cartel’s purported price-fixing.
It likewise does not assert any harm from the alleged group boycott. In fact
Premier does not allege any injury at all after 2013.49 Even if Premier had made
such allegations, it could not use them “as a bootstrap to recover for injuries
caused by other earlier [ ] acts that took place outside the limitations period.” Klehr,
521 U.S. at 190. Because the Complaint lacks the necessary allegations to support
a continuing antitrust violation, this avenue is foreclosed to Premier.
Premier fails to plausibly allege fraudulent concealment
necessary to equitably toll the statute of limitations.
Fraudulent concealment of conduct in violation of the antitrust laws can
equitably toll the statute of limitations during the period of concealment. Morton’s
Mkt., 198 F.3d at 832; In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1169 (5th Cir.
To avail themselves of this doctrine, plaintiffs have the
burden of proving at trial that  “the defendants
concealed the conduct complained of, and  that
[plaintiffs] failed, despite the exercise of due diligence on
[their] part, to discover the facts that form the basis of
Id. ¶¶ 67–70.
Morton’s Mkt., 198 F.3d at 832 (quoting In re Beef, 600 F.2d at 1169) (alterations in
original). See also Klehr, 521 U.S. at 182 (“[A] plaintiff may not rely upon ‘fraudulent
concealment’ unless he has been reasonably diligent in trying to discover his cause
Where fraudulent concealment exists, “plaintiffs may recover damages for
all the years during which the conspiracy was fraudulently concealed and the
statute was tolled.” Morton’s Mkt., 198 F.3d at 832 (citing In re Beef, 600 F.2d at
1169). Allegations of fraudulent concealment, however, must be pleaded with
particularity. Fed. R. Civ. P. 9(b); Summer v. Land & Leisure, Inc., 664 F.2d 965, 970–
71 (5th Cir. Unit B Dec. 1981);50 Von Der Werth v. Johns Manville, Civ. A. No. 1:07cv-2012-JEC, 2009 WL 10669723, at *3 n.4 (N.D. Ga. Mar. 23, 2009). The Complaint
the time and place of each such statement and the
person responsible for making (or, in the case of
omissions, not making) same, and
precisely what statements were made in what
documents or oral representations or what
omissions were made, and
the content of such statements and the manner in
which they misled the plaintiff, and
Cases decided by Unit B of the Former Fifth Circuit are binding precedent in
the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
what the defendants obtained as a consequence of
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)
(cleaned up). See also Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.
2006) (“This means the who, what, when, where, and how: the first paragraph of
any newspaper story.”). The Court therefore rejects Premier’s suggestion that it
should apply a “more relaxed” pleading standard to its fraudulent concealment
Premier argues it has alleged both (1) affirmative acts of concealment and
(2) that the price-fixing activities of both cartels were inherently “selfconcealing.”52 For immediate purposes, the Court assumes (as Premier argues)
that actions undertaken by one member of a cartel to conceal the cartel’s activities
would serve to toll the limitations period as to all Defendants alleged to be
members of that particular cartel.53
ECF 130, at 25 (citing Beck v. FCA US LLC, 273 F. Supp. 3d 735, 751 (E.D. Mich.
Id. at 24–27.
Id. at 26–27.
Outside of the antitrust context, the Eleventh Circuit has indicated that
“[e]quitable tolling by concealment is established either through affirmative
actions by the defendant constituting concealment or where the wrong is of such
a character as to be self-concealing.” Foudy v. Indian River Cnty. Sheriff’s Off., 845
F.3d 1117, 1124 (11th Cir. 2017) (citing Hill v. Texaco, Inc., 825 F.2d 333, 335, 335 n.2
(11th Cir. 1987)). Although Premier argues that the Complaint “specified multiple
occasions where Defendants acted with other Defendants to conceal their illegal
and anticompetitive conduct from the public,” it does not cite any specific portion
of the pleading in support.54 Rather, Premier relies on the bare assertion that
“Defendants misrepresented market conditions to explain price changes and other
anticompetitive conditions.”55 But the issue is not whether Defendants’ conduct
was concealed from the public. What matters is whether it was concealed from
Premier. And it is here that the Complaint fails to particularize its allegations.
Presumably as an example of active concealment, the Complaint states that
the Argos Defendants “falsely blamed changes in input costs for the price hikes
and fuel surcharges in [ ] price increase letters to cement and ready-mix concrete
Id. at 26.
customers.”56 However, there is no allegation that such allegedly false statements
were made to Premier. The only other allegations in the Complaint that attempt to
explain Defendants’ active concealment are Premier’s cursory mention of the
existence of the Argos Defendants’ antitrust compliance policy and Holcim’s code
of business conduct.57 These policies were purportedly why Premier “could not
have discovered the acts and conspiracies in either product market by any
reasonable means prior to 2018.”58 There are, however, no allegations about when
Premier saw these policies, how those policies served to conceal the misconduct,
or what caused Premier to discover the illicit acts in 2018. Brooks, 116 F.3d at 1371.
Moreover, construing the Complaint to allege these as acts of active
concealment directly conflicts with Premier’s group boycott cause of action against
the Ready-Mix Defendants. If the group boycott was in retaliation for Premier’s
refusal to join the cartel, it is unclear how Premier would not have known about the
cartel and its alleged price-fixing scheme. The alleged harm to Premier (i.e., the
boycott) would have been an immediate and apparent consequence of it having
ECF 1, ¶ 81.
Id. ¶ 78.
Id. ¶ 77.
declined to participate in the illicit agreement. Thus, as currently pled, Premier has
no viable argument regarding active concealment.
Certain Defendants argue that the Complaint must allege that they
specifically made fraudulent statements designed to conceal their conduct.59 Given
the nature of conspiracies, the Court is not persuaded that each defendant must
have made fraudulent statements to conceal the conspiracy in order for tolling to
apply to the claims against it—if the pleading particularizes how that defendant
actively benefited from the concealment efforts of other members of the cartel of
which that defendant was a member.60 See Brooks, 116 F.3d at 1381 (noting that, in
cases involving multiple defendants, Rule 9(b) requires a plaintiff to inform each
defendant of its role in the fraud); Summer, 664 F.2d at 968–71 (concluding, in
securities fraud action, that complaint failed to satisfy Rule 9(b) with regard to
allegations of fraudulent concealment by underwriter and accounting firm where
those allegations were conclusory; separate allegations as to differently situated
corporate defendants were sufficient). Such allegations must, however, be pleaded
with particularity. Summer, 664 F.2d at 970–71.
See, e.g., ECF 94-1, at 10–12; ECF 98, at 4.
See, e.g., ECF 136, at 13–14.
Premier’s primary argument in support of tolling is that the conspiracies
were “inherently self-concealing.”61 According to the Eleventh Circuit, a “selfconcealing wrong is one in which the clandestine nature of the activity is essential
to the act itself, where a deception, misrepresentation, trick or contrivance is a
necessary step in carrying out the illegal act, not merely separate from the illegal
act and intended only to cover up the act.” Foudy, 845 F.3d at 1125. See also Von Der
Werth, 2009 WL 10669723, at *3 (describing self-concealing conduct as the kind in
which “the concealment is inherent in the nature of the wrong done”). Premier
suggests that, because antitrust conspiracies are designed to be kept secret in order
for them to work, they are therefore self-concealing.
In support of this argument, Premier relies on cases from other
jurisdictions.62 But as another federal court has noted, only the Second Circuit has
adopted this expansive view of the self-concealing doctrine. In re Pork Antitrust
Litig., 2020 WL 6149666, at *7 (D. Minn. Oct. 20, 2020). See, e.g., New York v.
ECF 1, ¶ 83; ECF 130, at 24–25.
ECF 130, at 24–25 (citing King & King Enters. v. Champlin Petro. Co., 657 F.2d
1147, 1155 (10th Cir. 1981); Hinds Cnty., Miss. v. Wachovia Bank N.A., 700
F. Supp. 2d 378, 399 (S.D.N.Y. 2010); In re Nine West Shoes Antitrust Litig., 80
F. Supp. 2d 181, 192–93 (S.D.N.Y. 2000)).
Hendrickson Bros., 840 F.2d 1065, 1068 (2d Cir. 1988) (finding that bid-rigging and
price-fixing conspiracies are inherently self-concealing). Every other federal
appellate court to consider the issue has found that, to toll the statute of
limitations, there must be allegations that the defendants performed affirmative
acts to conceal the alleged conspiracy. E.g., In re Scrap Metal Antitrust Litig., 527
F.3d 517, 538 (6th Cir. 2008); In re Fasteners Antitrust Litig., No. CIV.A. 08-MD-1912,
2011 WL 3563989, at *3 (E.D. Pa. Aug. 12, 2011) (collecting cases from the Fourth,
Fifth, and Tenth Circuits).
The Eleventh Circuit has not addressed this question in the antitrust context.
However, a securities fraud opinion from that court suggests allegations of selfconcealing conspiracies might be a viable means of establishing equitable tolling.
E.g., Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1535 n.28 (11th Cir. 1987).
No court in this district has extensively discussed the issue, although two courts
briefly considered it at the pleading stage. Southeast Ready Mix, LLC v. Argos N. Am.
Corp., No. 1:17-cv-02792-ELR, 2018 WL 8263138, at *13 (N.D. Ga. Aug. 22, 2018)
(the SE Ready Mix Litigation); Von Der Werth, 2009 WL 10669723, at *3. Based on the
approach taken by a majority of federal courts, this Court is skeptical that selfconcealment is a viable method of establishing equitable tolling—at least absent
factual allegations demonstrating affirmative acts of concealment. In re Pork, 2020
WL 6149666, at *7 (“To hold that fraudulent concealment can be met by claiming
a conspiracy is self-concealing would mean allowing fraudulent concealment to
apply to nearly every conspiracy.”).
Even assuming that (1) certain conduct in violation of the Sherman Act can
be self-concealing sufficient to support tolling and (2) at least some of the alleged
activities engaged in by Defendants fall into this category, Premier’s arguments
here suffer from the same defects as its active concealment arguments.
For example, Premier’s allegations are facially contradictory; it is not factually
plausible that the Ready-Mix Defendants could have attempted (but failed) to
recruit Premier into their conspiracy—as alleged in Count IV’s group boycott
cause of action—without Premier actually knowing about the conspiracy or price
fixing scheme. Based on Premier’s own allegations, it should have known (1) that
it was being boycotted and (2) the reason for the boycott. There are no details in
the Complaint that plausibly demonstrate Premier’s purported lack of knowledge
given the bases for its substantive causes of action.
Moreover, even if the Court provided the benefit of assuming certain of
Defendants’ alleged conduct was self-concealing, Premier has not sufficiently
pleaded that it exercised due diligence to discover the facts that form the basis of
its claims. “[A] plaintiff may not rely upon ‘fraudulent concealment’ unless he has
been reasonably diligent in trying to discover his cause of action.” Klehr, 521 U.S.
at 182. See also Morton’s Mkt., 198 F.3d at 832; In re Beef, 600 F.2d at 1169. See also In
re Eur. Gov’t Bonds Antitrust Litig., No. 19 CIV. 2601 (VM), 2020 WL 4273811, at *11
(S.D.N.Y. July 23, 2020) (“[A] conspiracy’s self-concealing nature alone cannot
excuse a plaintiff’s failure to plead any exercise of due diligence at all.”). An
objective standard is applied to determine whether a plaintiff was on inquiry
notice; the plaintiff is charged with knowledge of its claims when it should have
discovered the basis for them. Morton’s Mkt., 198 F.3d at 835.
Generally, whether a plaintiff exercised due diligence is an issue of fact.
Morton’s Mkt., 198 F.3d at 832. A lack of due diligence, however, may be evident
from the face of the complaint. Gonsalvez, 750 F.3d at 1197 (“A Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate ‘if it is apparent from the
face of the complaint that the claim is time-barred.’”) (citing La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)) (similar); Summer, 664 F.2d at 970–71
(affirming dismissal of complaint as to certain defendants for failure to plead
fraudulent concealment with particularity). Here, Premier’s own allegations fail to
plausibly state that it exercised due diligence. Premier acknowledges that it was
put on inquiry knowledge of its claims at least as early as August 2017:
[O]ne of Premier Concrete’s business neighbors who is in
the concrete pipe industry showed the Woods a separate
antitrust complaint against the defendants. The
complaint was filed by Southeast Ready Mix and
Mayson Concrete, and it alleged much of the same
conduct that was inflicted upon Premier.63
Despite that concession, Premier repeatedly asserts that it could not have
discovered Defendants’ misconduct “by any reasonable means” prior to 2018 and
that the statute of limitations did not begin to run until September 2018.64 The SE
Ready Mix Litigation complaint the Woods saw in August 2017 had been publicly
filed the month before.65 That complaint contains allegations remarkably similar
to those in Plaintiffs’ own pleading, including the exact same causes of action in
the same order—a fact Premier acknowledges.66 Morton’s Mkt., 198 F.3d at 833
(“Notice that the [defendants] were rigging bids to one customer, then, supplies
notice that they might be rigging bids to you and triggers a duty to inquire.”); In
re Beef, 600 F.2d at 1170–71 (“In a case involving a claim that the statute of
ECF 1, ¶ 74 (footnote omitted) (citing Se. Ready Mix, LLC v. Argos N. Am. Corp.,
No. 1:17-cv-02792-ELR (N.D. Ga.) (the SE Ready Mix Litigation)).
Id. ¶¶ 77–84.
SE Ready Mix Litigation, ECF 1.
Compare id. with ECF 1, ¶ 74 (“The complaint was filed by Southeast Ready Mix
and Mayson Concrete, and it alleged much of the same conduct that was
inflicted upon Premier.”).
limitations has been tolled, ‘the means of knowledge are the same thing as
knowledge itself.’”) (quoting Wood v. Carpenter, 101 U.S. 135, 143 (1879)).
Moreover, the allegations in the SE Ready Mix Litigation complaint were wellpublicized.67
The Complaint plainly alleges facts demonstrating that Premier should have
known it had potential claims against Defendants when the Woods saw the SE
Ready Mix Litigation complaint in August 2017. Lehman v. Lucom, 727 F.3d 1326,
1331–32 (11th Cir. 2013) (concluding RICO complaint was barred by four-year
statute of limitations where plaintiff had filed separate complaint more than four
years before that contained allegations “strikingly similar” to those in the RICO
See, e.g., Ready Mix Companies File Antitrust Lawsuit in Atlanta Federal Court,
LAW FIRM NEWSWIRE (BLOG), Aug. 23, 2017, 2017 WLNR 25967227 (describing
lawsuit as alleging Argos was the “ringleader” of cement and ready mix cartels
in coastal Georgia and southeast coastal South Carolina).
The Court refers to the press coverage of the SE Ready Mix Litigation not to
comment on its accuracy or truthfulness but to demonstrate that allegations
similar to those now being made by Premier were in the public arena in August
2017. See In re Beef, 600 F.2d at 1170 (noting that “[n]umerous federal courts
have suggested that plaintiffs are chargeable with knowledge of the contents
of public records”; indicating that “it is abundantly clear that the plaintiffs
knew or should have known . . . of the allegations of the Bray complaint. The
Bray case was widely publicized in numerous issues of numerous trade
publications . . . .”).
complaint; noting that claim-accrual rule in civil RICO actions was derived from
the rule applicable to Clayton Act claims).
Given the allegations here, nothing in Premier’s pleading provides any—let
alone plausible—factual support to suggest that it was not on inquiry notice as of
August 2017. A “reasonably diligent plaintiff” would have been able to uncover
the alleged fraud no later than that point. Morton’s Mkt., 198 F.3d at 836 (citations
omitted). To be clear, Premier did file its Complaint within four years after August
2017. But the Court is skeptical that Premier’s decision to wait over two years to
file suit after belatedly discovering a basis for its claims demonstrates the
More crucially, the allegations in the Complaint demonstrate that Premier
was likely on inquiry notice even before 2017. As to the Ready-Mix Defendants’
anticompetitive efforts, in 2009, an officer of the Elite Defendants asked Keith
Woods if Premier would refrain from competing in the Savannah area.68 In 2010,
the Argos Defendants started undercutting Premier on bids for concrete jobs and
gained access to Premier’s customer and price lists.69 In 2012, the Argos and Elite
Defendants worked together to gain Premier’s customers by following its trucks
ECF 1, ¶¶ 35.a.
Id. ¶¶ 35.c., 35.d.
to job sites and undercutting it on pricing.70 In 2013, Coastal asked Keith Woods if
he would “give up” and invest in Coastal or sell Premier to Coastal.71
As to the Cement Defendants, in June 2009, the Argos Defendants stopped
supplying Premier with cement.72 Within two hours of each other in February
2011, representatives of the Argos Defendants, Giant, and Holcim informed
Premier that they would be increasing cement prices—even though the Argos
Defendants and Holcim did not sell to Premier at that point.73 These Defendants
gave Premier similar notice of a price increase in 2013.74 In 2013 and 2014, the
Argos Defendants refused to sell to Premier.75 In 2014–2015, Giant informed
Premier that it would no longer supply Premier with cement effective
immediately.76 As alleged, this is conduct Premier would have been aware of as it
Id. ¶ 35.f.
Id. ¶ 35.i.
Id. ¶ 35.b.
Id. ¶ 35.e.
Id. ¶ 35.j.
Id. ¶ 35.k.
Id. ¶ 35.l.
Premier has failed to satisfy Rule 9(b) with regard to its assertions that its
claims are subject to equitable tolling. Well-pleaded allegations about what
Premier knew, when it knew it, Defendants’ efforts at concealment (if any), and
Premier’s due diligence may cure the pleading deficiencies. See, e.g., La Grasta, 358
F.3d at 845; Summer, 664 F.2d at 970–71. Accordingly, Premier is permitted to
amend its Complaint to adequately plead that its Sherman Act claims are not
barred by the statute of limitations.
Claims against the Ready-Mix Defendants
Since Premier will be given the opportunity to replead with regard to the
timeliness of its claims, the Court will also address the substantive adequacy of
Premier’s causes of action.
Joint monopoly (Counts I & II)
The Complaint accuses the Ready-Mix Defendants of joint monopolization,
attempted joint monopolization, and conspiracy to jointly monopolize in violation
of Section 2 of the Sherman Act.77 Section 2 prohibits “monopoliz[ing], or
attempt[ing] to monopolize, or combin[ing] or conspir[ing] with any other person
or persons, to monopolize any part of the trade or commerce among the several
States, or with foreign nations . . . .” 15 U.S.C. § 2. A person who is “injured in his
business or property by reason of anything forbidden in the antitrust laws” can
sue for treble damages under the Clayton Act. 15 U.S.C. § 15(a). See also Spanish
Broad. Sys., 376 F.3d at 1074. Although Spanish Broadcasting Systems did not involve
allegations of a joint monopoly, the ruling suggests that a monopoly can only be
held by a single entity. The Eleventh Circuit stated that, under Section 2, “the
alleged monopolist must possess enough power or potential power in this
‘relevant market’ in order to harm competition.” Id. at 1074 (citation omitted). See
also id. at 1075 (noting court was unable to locate a case where “a minority
shareholder can attempt to monopolize a market on behalf of its subsidiary”).
Id., Counts I–III. The reply in support of the Joint Motion asserts that Premier
abandoned these claims by failing to respond to them in its opposition to the
Joint Motion. ECF 143, at 6. Premier did, however, present arguments in
support of its joint monopoly causes of action in its opposition to the Elite
Defendants’ separate brief in support of the Joint Motion. ECF 136, at 6–11.
Given the extent and complexity of the briefing on Defendants’ motions, the
Court does not treat the claims in Counts I, II, and III as having been
Courts—including one in this district—have rejected the idea that Section 2
prohibits “joint” monopolization or attempting to create a joint monopoly. See, e.g.,
In re Delta/Airtran, 733 F. Supp. 2d at 1366 (describing the theory as “novel” and
citing cases from, inter alia, Second, Seventh, and Ninth Circuits rejecting joint
monopolization theory at motion to dismiss stage);78 JES Props., Inc. v. USA
Equestrian, Inc., No. 8:02-cv-1585-T24-MAP, 2005 WL 1126665, at *18 (M.D. Fla.
May 9, 2005) (at summary judgment); Sun Dun, Inc. of Wash. v. The Coca-Cola Co.,
740 F. Supp. 381, 390 (D. Md. 1990) (indicating that, “in order to sustain a charge
of monopolization or attempted monopolization, a plaintiff must allege the
necessary market domination of a particular defendant”) (emphasis added)
Premier alleges that the members of the Ready-Mix Cartel “jointly possess
monopoly power” in the ready-mix concrete market, with the power to exclude
competition and artificially raise prices.79 This power permitted the members to
engage in (among other things) predatory and “supra-competitive” pricing and
H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1018
(2d Cir. 1989); Midwest Gas Servs., Inc. v. Ind. Gas. Co., 317 F.3d 703, 713 (7th Cir.
2003); Ind. Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1416 (7th Cir.
1989); Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1443 (9th Cir. 1995).
ECF 1, ¶ 87.
bid rigging.80 The Joint Motion argues that these causes of action must be
dismissed because joint monopolization is not a cognizable cause of action under
Section 2.81 The Court agrees that Premier’s claims are based on joint
monopolization.82 Accordingly, Counts I and II must be dismissed.
Conspiring to monopolize (Count III)
In contrast to the theory of a “joint” monopoly, it is possible for two or more
entities to be liable for conspiring to achieve a monopoly:
[U]nder the statute, there are three distinct claims that
can be brought: (1) monopolization; (2) attempt to
monopolize; and (3) conspiracy to monopolize. As has
been explained, Plaintiffs elected to proceed pursuant to
prong (2) alleging that Defendants engaged in attempted
monopolization. The fact that a separate offense
(a conspiracy claim) exists under the statute for
concerted action pertaining to monopolization suggests
that any joint monopoly theory must be brought
pursuant to that subsection of the statute rather than
pursuant to the “attempted monopolization” prong.
In re Delta/Airtran, 733 F. Supp. 2d at 1367 n.14 (citation omitted). Multiple firms
can thus conspire to make one of them a monopolist.
Id. ¶ 89.
ECF 97-1, at 13–16. Premier does not respond to this argument in its briefing.
Accordingly, the Court treats this portion of the Joint Motion as unopposed.
LR 7.1(B), NDGa.
See, e.g., ECF 1, ¶¶ 87, 93, 98, 100.
The problem here is that Premier is asserting that the Ready-Mix Defendants
conspired to create a joint monopoly. This claim therefore faces the same problems
as Counts I and II—Section 2 does not encompass the idea of joint monopolies.
“[A] § 2 claim can only accuse one firm of being a monopolist.” Midwest Gas Servs.,
Inc. v. Ind. Gas. Co., 317 F.3d 703, 713 (7th Cir. 2003). While, an “[o]ligopoly can, in
some cases, violate Sections 1 and/or 3 of the Sherman Act, [ ] competitors, by
conspiring to maintain or create an oligopoly, do not run afoul of the Section 2
prohibitions against monopoly.” Sun Dun, 740 F. Supp. at 390 (noting that “an
attempt to allege the necessary market power by aggregating the market power of
several defendants is mere tautology”) (citing Consol. Terminal Sys., Inc. v. ITT
World Commc’ns, Inc., 535 F. Supp. 225, 228 (S.D.N.Y. 1982)). Therefore, Count III
must also be dismissed.
Group boycott (Count IV)
Count IV of the Complaint alleges that the Ready-Mix Defendants engaged
in a conspiracy to restrain trade, i.e., a group boycott, in violation of Section 1.83
Id. at 49–50.
Effects on interstate commerce
At the outset, the Elite Defendants argue that Premier failed to allege
conduct by Defendants affecting interstate commerce.84 Premier responds that the
Complaint alleges that the group boycott affected “both the Georgia and South
Carolina markets” and pleads facts that “allege activity crossing state lines and
[a]ffecting the commerce of multiple states.”85
The Complaint alleges that the “relevant geographic market” for cement
spans “coastal Georgia and coastal South Carolina,”86 indicating that the cement
market crosses state lines. In contrast, the Complaint alleges that the ready-mix
concrete market is, necessarily, “highly localized.”87 In fact, according to the
Complaint, the ready-mix concrete markets at issue here—Statesboro, Georgia;
Savannah, Georgia; and Hilton Head/Bluffton, South Carolina are each “too far
away from one another for a plant in one of these locations to profitably service
another.”88 These allegations show the exact opposite of activity crossing state
lines—because the radius of possible customers for a plant in each market is only
ECF 98, at 5.
ECF 136, at 14–15.
ECF 1, ¶ 59.
Id. ¶ 61.
Id. ¶ 61.b.
20 to 30 minutes, there is no clear allegation in the Complaint that there is any
cross-over between the “highly localized” Georgia markets and the “highly
localized” South Carolina markets.89 Nor does the Court find any other allegations
in the Complaint that show the interstate effects of the ready-mix concrete
In light of the actual allegations in the Complaint and lack of facts about
how the at-issue ready-mix concrete markets affect interstate commerce, the
Complaint fails to plead a necessary element of a Section 1 claim against the
[J]urisdiction may not be invoked under [the Sherman
Act] unless the relevant aspect of interstate commerce is
identified; it is not sufficient merely to rely on
identification of a relevant local activity and to presume
an interrelationship with some unspecified aspect of
interstate commerce. To establish jurisdiction a plaintiff
must allege the critical relationship in the pleadings . . . .
McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 242 (1980). See also id. at
241–42 (indicating that jurisdictional requirement may be satisfied under either an
“in commerce” or “effect on commerce” theory). Given the sweep of the
Commerce Clause and the “correspondingly broad reach of the Sherman Act,” id.
Id. ¶ 61.a.
at 241, Premier may be able to satisfy one of these standards. At the moment,
however, it has failed to do so.
The parties’ arguments
Premier contends that the Ready-Mix Defendants sought to exclude Premier
(and others) from the ready-mix concrete markets.90 This purportedly caused
consumers of the product to “pay supra-competitive prices while receiving lower
quality ready-mix concrete.”91 In the Joint Motion, the Ready-Mix Defendants
assert that Premier has not pleaded facts showing the existence of an agreement
or that Premier was excluded from the market, and thereby lacks standing.92
Further, these Defendants argue that, as a competitor, Premier does not have
standing to assert a Section 1 claim based on price-fixing.93
Premier responds that it is not asserting a Section 1 claim based on pricefixing. Rather, its contention is that it and other ready-mix competitors were
excluded from the ready-mix market because they refused to participate in the
Id. ¶ 105.
Id. ¶ 107.
ECF 97-1, at 17–26.
Id. at 18–19. The Evans Defendants make a similar argument in their brief in
support of the Joint Motion. ECF 100, at 3 ¶¶ 6–7; id. at 4 ¶ 8.
price-fixing conspiracy.94 Premier also argues that those ready-mix companies that
refused to participate in the conspiracy were targeted by the Cement Cartel, which
refused to sell them the cement they needed to engage in the ready-mix market.95
In addition, Premier points to direct and indirect evidence of the Ready-Mix
Defendants’ agreement and efforts to exclude Premier from the market.96
It is true that a company does not suffer an antitrust injury if its competitors
engage in price fixing. Atlantic Richfield Co. v. USA Petro. Co., 495 U.S. 328, 337
(1990) (“A competitor ‘may not complain of conspiracies that . . . set minimum
prices at any level.’”) (quoting Matsushita Elec. Indus. Corp. v. Zenith Radio Corp.,
475 U.S. 574, 585 n.8 (1986)).97 This is because the company would stand to gain
from a conspiracy to raise market prices. Id. “The antitrust laws were enacted for
‘the protection of competition, not competitors.’” Id. at 338 (quoting Brown Shoe Co.
ECF 130, at 7, 15–17.
Id. at 8.
ECF 130, at 8–14.
Although this maxim was directed at vertical, maximum price fixing
allegations, the Supreme Court made clear that a plaintiff alleging horizontal
price fixing must also demonstrate that it was injured by the scheme in order
to have standing. Atlantic Richfield, 495 U.S. at 344–45. See also Matsushita, 475
U.S. at 582.
v. United States, 370 U.S. 294, 320 (1962)). However, it is also true that a company
can suffer an antitrust injury if it is the target of a group boycott. And that is exactly
what Premier alleges.
In Klor’s Inc. v. Broadway-Hale Stores, Inc., the Supreme Court considered
antitrust claims made by a retail store (Klor’s) that a competing department store,
national manufacturers, and distributors of the manufacturers conspired not to
sell to Klor’s at all or only to sell at discriminatory prices. 359 U.S. 207, 208–09
(1959). The Ninth Circuit affirmed the district court’s dismissal of the claims and
entry of summary judgment.98 The Supreme Court characterized the appellate
court’s decision as follows:
[I]f correct, [the Ninth Circuit ruling] means that unless
the opportunities for customers to buy in a competitive
market are reduced, a group of powerful businessmen
may act in concert to deprive a single merchant, like Klor,
of the goods he needs to compete effectively.
Id. at 210.
The Supreme Court reversed, concluding that “Klor’s allegations clearly
show one type of trade restraint and public harm the Sherman Act forbids.” Id. It
The case was effectively in the early, pre-discovery stage when it was
dismissed. The defendants submitted affidavits in support of their motions to
dismiss and for summary judgment, which were then considered by the
district court. 359 U.S. at 209–11.
made clear that “[g]roup boycotts, or concerted refusals by traders to deal with
other traders, have long been held to be in the forbidden category” of activities in
restraint of trade: “Even when they operated to lower prices or temporarily to
stimulate competition they were banned.” Id. at 211–12 (citations omitted). See also
Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284,
290 (1985) (“This Court has long held that certain concerted refusals to deal or
group boycotts are so likely to restrict competition without any offsetting
efficiency gains that they should be condemned as per se violations of § 1 of the
Sherman Act.”); id. at 293 (“Group boycotts are often listed among the classes of
economic activity that merit per se invalidation under § 1.”) (internal quotation
marks omitted) (citations omitted).
Similar to the facts in Klor’s, Premier’s Section 1 cause of action in Count IV
is not based on a contention that Premier was somehow injured because of the
Ready-Mix Defendants’ alleged price-fixing scheme. Rather, this count clearly
asserts a claim for group boycott that resulted from Premier’s refusal to engage in
the price-fixing scheme.99 Because of Premier’s refusal, the Ready-Mix Defendants,
ECF 1, ¶ 105 (the Ready-Mix Cartel “combined and conspired to restrain trade
in violation of Sherman Act Section 1 by engaging in a scheme to exclude
Premier and other nonparticipating competitors from the market for ready mix
concrete . . . in order to succeed in their price-fixing scheme”) (emphasis added).
as alleged, “predatorily undercut[ ]” Premier’s pricing to its clients and undertook
efforts to raise the prices Premier paid for cement or prevented it from buying
cement at all.100 The Argos Defendants helped members of the Ready-Mix Cartel
withstand these high cement prices by providing them with substantial rebates.101
These Defendants carved out areas of the ready-mix concrete market (“Green
Zones”), divided the areas amongst themselves, and engaged in predatory pricing
to ensure that non-cartel members would be excluded from those areas.102 These
details sufficiently allege a common understanding and not unilateral action by
the individual Ready-Mix Defendants. In re Delta/Airtran, 733 F. Supp. 2d at 1359.
The Joint Motion inappropriately tries to focus on these allegations in isolation,
rather than assessing the Complaint as a whole.
Further, the fact that the Ready-Mix Defendants (other than Argos) did not
sell cement to Premier (as the reply in support of the Joint Motion points out103)
does not sufficiently distinguish Klor’s. What Premier alleges is the concerted effort
to exclude it from the ready-mix market. The competing department store
Id. ¶ 35.
Id. ¶ 31.d.
Id. ¶¶ 41–43.
ECF 143, at 13.
defendant in Klor’s did not sell goods to the plaintiff, but the Supreme Court still
reversed the dismissal and remanded the action for trial. 359 U.S. at 214. Moreover,
the Supreme Court has stated that “agreements between competitors to allocate
territories to minimize competition”—such as the Green Zones alleged here—“are
illegal,” describing them as “[o]ne of the classic examples of a per se violation of
§ 1.” Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 (1990) (quoting United States v. Topco
Assocs., Inc., 405 U.S. 596, 608 (1972)). See also Langston Corp. v. Standard Register
Co., 553 F. Supp. 632, 638 (N.D. Ga. 1982) (noting that “[c]onventional group
boycotts” are per se violations of Section 1, but that this rule is “narrow”; “In a
conventional boycott, actors at one level in the chain of distribution seek to exclude
competitors or those who seek to compete by concerted action to deprive them of
some trade relationship which they need to compete effectively.”) (citation
While the Court need not decide at this point whether the group boycott
alleged by Premier is a per se violation of Section 1, the Complaint’s allegations are
sufficient to show that Premier has standing to assert a cause of action under
The Evans Defendants
The separate brief in support of the Joint Motion filed by the Evans
Defendants (Evans Concrete Holdings, Inc. and Evans Concrete, LLC) argues that
the individual allegations against it are insufficient to state a claim. As does the
Joint Motion, these Defendants focus on the Complaint’s allegations in isolation
from one another rather than in the context of the entire pleading.
Premier alleges that the Evans Defendants were part of the Ready-Mix
Cartel; engaged in discussions with the Argos Defendants about how to
predatorily underprice ready-mix concrete competitors, including Premier;
undertook efforts through the cartel to do the same, including receiving an
allocation of customers the cartel attempted (or was attempting) to take from
Premier; participated in bid-rigging and price-fixing; and participated in the Green
Zones.104 Viewing these allegations as a whole, the Complaint contains sufficient
facts to plausibly allege that the Evans Defendants were part of the Ready-Mix
Cartel and the group boycott. Twombly, 550 U.S. at 556.
Coastal and the Thomas Defendants
In their motion to dismiss, the Thomas Defendants argue that they are only
part of this litigation because Defendant Thomas Concrete of South Carolina, Inc.
Id. ¶¶ 3, 34–35, 35.o., 39.g, 39.i., 39.j., 42.
purchased certain assets of Coastal in 2015.105 The Thomas Defendants are,
however, allegedly members of the Ready-Mix Cartel independent of any alleged
association with Coastal.106 The Complaint asserts that as to the Thomas
Defendants, their “employees, and agents participated personally in the unlawful
conduct” and “[t]o the extent [the] Thomas [Defendants] did not personally
participate, [they] authorized, set in motion, or otherwise failed to take necessary
steps to prevent the acts complained of” in the Complaint.107 In March and April
2016, the Argos Defendants purportedly told its salespeople not to compete with
the Thomas Defendants for jobs (because of the latter’s participation in the ReadyMix Cartel).108
As for Coastal, its alleged participation in the cartel began in 2010, when it
started discussions with the Argos Defendants and others concerning “strategies
to undercut” the pricing of a competitor in the market.109 In February 2012, Coastal
allegedly exchanged price-increase letters with the Argos Defendants and others
ECF 92-1, at 6.
ECF 1, ¶¶ 24, 29.
Id. ¶ 24.d.
Id. ¶¶ 35.o. & 35.p.
Id. ¶ 34.
to “confirm [these parties’] compliance with the agreement to increase prices.”110
The Argos Defendants told their sales people that they “were not allowed to
undercut” Coastal’s prices.111 Later in 2012, Coastal agreed with other members of
the cartel to “coordinated price increases” and discussed additional coordinated
price increases.112 In 2013, Coastal’s then-president and one of its investors asked
Keith Woods to “give up” and become a shareholder of Coastal or to sell Premier
to Coastal.113 In October 2013, Coastal and the Argos Defendants issued price
increase letters (that presumably reflected coordinated pricing, although the
Complaint does not specifically allege this).114 The Argos Defendants, along with
Coastal, the Thomas Defendants, and others, supposedly “combined and
conspired to restrain trade” in violation of Section 1 of the Sherman Act.115
The Complaint sufficiently alleges that Coastal and the Thomas Defendants
were part of the Ready-Mix Cartel.
Id. ¶ 35.g.
Id. ¶ 35.h.
Id. ¶¶ 38, 39.f.
Id. ¶ 35.i. (internal quotation marks omitted).
Id. ¶ 39.k.
Id. ¶ 105.
The Elite Defendants
The Elite Defendants (Elite Concrete, LLC; Elite Concrete Holdings, LLC;
and Elite Concrete of SC, LLC) assert that the Complaint does not contain any
allegations of their purported participation in the Ready-Mix Cartel after January
22, 2016.116 The Court agrees. In fact, the Complaint asserts that by April 27, 2016,
the Elite Defendants were no longer part of the cartel.117 Before that point,
however, the Complaint sufficiently pleads that they were part of the cartel.118 The
group boycott claim against the Elite Defendants, therefore, is not subject to
ECF 98, at 3–5.
Id. ¶ 35.p.
Id. ¶ 29 (Elite Defendants joined the ready-mix cartel “starting in
approximately 2009); ¶ 34 (Elite Defendants and Argos Defendants had a close
relationship in 2010 because of the Melton brothers); ¶ 35.a. (in 2009, an Elite
Concrete representative asked if Premier would not compete in Savannah
area); ¶ 35.f. (Elite Defendants and Argos Defendants worked together
throughout 2012 to take Premier’s largest customers); ¶ 35.g. (Elite Defendants
and Argos Defendants exchanged price-increase letters on February 28, 2012);
¶ 35.p. (as of April 27, 2016, Elite Defendants no longer participated in readymix cartel); ¶ 39.i. (Elite Defendants agree to price increases); ¶ 40 (before late
2015, representative of Elite Defendants regularly met with representative of
Argos Defendants to “discuss cartel strategy”).
The Complaint’s group boycott cause of action must be dismissed on statute
of limitations grounds. The claim is also subject to dismissal because Premier has
failed to allege that the relevant conduct was “in” interstate commerce or affected
interstate commerce. The Court rejects as a basis for dismissal the remaining
arguments raised in the Joint Motion and the individual briefs and motions filed
by the Ready-Mix Defendants.
Claim against the Cement Cartel (Count VII)
The only cause of action Premier asserts against the Cement Defendants
(the Argos and Cemex Defendants, Giant, and Holcim) is in Count VII for
conspiracy to restrain trade (price fixing) in violation of Section 1.119
The parties’ arguments
The Joint Motion argues that the Complaint lacks sufficient facts to make
plausible the allegation that the Cement Cartel members agreed to fix prices.120
The Joint Motion emphasizes the individual allegations against the Cement
Defendants rather than viewing the Complaint in its entirety.121 Premier responds
ECF 1, Count VII.
ECF 97, at 29–31. See also ECF 95-1, at 6–8, 15–26; ECF 143, at 15–17.
ECF 97, at 29–31.
that it has alleged direct evidence of an agreement, as well as “plus factors” in
support of allegations about the Cement Defendants’ price-fixing conspiracy.122 In
addition to the arguments in the Joint Motion, the Cemex Defendants and Giant
make additional arguments in their separate motions to dismiss.123
The Cemex Defendants
The Cemex Defendants argue that the Complaint does not allege they were
part of the relevant cement market, such that there are no plausible allegations
they participated in the conspiracy.124 These Defendants also contend that the
parallel conduct described in the Complaint and lack of “plus factors” mean that
Premier’s Section § 1 claim fails.125 Premier responds that its allegations are
sufficient at the pleading stage to establish the Cemex Defendants’ participation in
ECF 130, at 4–6, 21–24.
Although Premier’s opposition to the Joint Motion asserts that Coastal was
part of the Cement Cartel, id. at 21, the Court does not read the Complaint to
make any such allegation. See, e.g., ECF 1, ¶¶ 2, 64.
To the extent the separate motions filed by these Defendants raise arguments
addressed in the Joint Motion, such arguments are discussed collectively
ECF 102-1, at 12–15.
Id. at 20–21.
the relevant market and cartel—especially given the concealed nature of most of
the Cement Defendants’ conduct.126
In its separate motion to dismiss, Giant asserts that the conduct alleged in
the Complaint is “completely consistent” with independent, rather than collective,
conduct.127 Similar to the Cemex Defendants, it argues that such “conscious
parallelism” is not prohibited by the Sherman Act.128 Giant contends that Premier
has failed to plead sufficient “plus factors” to make the Complaint’s allegations
“more probative of conspiracy than of conscious parallelism.”129 Premier responds
that Giant is attempting to apply too stringent a legal standard at this stage and
that it has plausibly alleged a conspiracy and plus factors.130
Reading the pleading liberally, as the Court must, the Complaint alleges
that, from 2012 through 2016, the members of the Cement Cartel “conspired to fix
ECF 132, at 2–6.
ECF 95-1, at 15. See generally id. at 15–26.
Id. at 16.
Id. at 17 (quoting Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1301
(11th Cir. 2003)).
See generally ECF 131, at 3–6, 9–10.
prices in the cement market” and to trade “competitively sensitive information,”
and that the Argos Defendants would determine how much cement ready-mix
concrete competitors were buying, in order to help the Ready-Mix Cartel drive
those competitors out of the ready-mix market.131 The Argos Defendants and
Holcim allegedly coordinated to not supply cement to Premier.132 The Cement
Cartel members discussed and agreed to coordinated price increases, which were
sometimes announced to Premier by the ostensibly competing cement companies
on the same day.133
In In re Delta/Airtran, the Court held that the following allegations of
antitrust violations were sufficient to survive dismissal:
Defendants (1) engaged in collusive communications
through earnings calls and industry conferences;
(2) aligned their business practices following the
collusive communications; (3) implemented business
practices contrary to their self-interest following the
communications; (4) offered a pretextual explanation for
the implementation of the first-bag fee; and
(5) undertook this concerted action to achieve higher
revenues at the expense of higher prices for consumers.
733 F. Supp. 2d at 1361.
ECF 1, ¶¶ 31.b., 31.c., 48.
Id. ¶ 31.e.
Id. ¶¶ 35.e., 35.j., 48.a., 48.b., 48.c., 48.d.
At this stage, the Court believes Premier’s similar allegations are sufficient
to withstand scrutiny. “Courts have [ ] found that unlawful conspiracies may be
changed/responsive business practices, such as new pricing practices.” Id. at 1360
(citing, inter alia, Helicopter Support Sys., Inc. v. Hughes Helicopter, Inc., 818 F.2d 1530,
1535 (11th Cir. 1987)). See also In re Text Messaging Antitrust Litig., 630 F.3d 622,
627–28 (7th Cir. 2010) (“Parallel behavior of a sort anomalous in a competitive
market is thus a symptom of price fixing, though standing alone it is not proof of
it; and an industry structure that facilitates collusion constitutes supporting
evidence of collusion.”).
Given (among other things) the alleged market-share distribution among
the Cement Defendants in each geographic region,134 the Complaint’s allegations
are more probative of collusion than of parallel price changes. While the Cemex
Defendants’ and Giant’s arguments concerning conscious parallelism may be
sufficient at summary judgment, reliance on Williamson Oil Co. v. Philip Morris
USA, 346 F.3d 1287 (11th Cir. 2003), at the motion to dismiss stage is misplaced. Id.
at 1300–01 (“In order to ensure that only potentially meritorious claims survive
See, e.g., id. ¶¶ 46, 64.
summary judgment, the Supreme Court has required that inferences of a price
fixing conspiracy drawn from circumstantial evidence be reasonable. In practice,
this means that to survive a motion for summary judgment . . . a plaintiff seeking
damages for [collusive price fixing] . . . must present evidence that tends to
exclude the possibility that the alleged conspirators acted independently.”)
(cleaned up). Moreover, Giant’s arguments that it supplied cement to Premier
during the relevant period, and at lower prices than the other Cement Defendants,
would impermissibly require the Court to interpret the Complaint in the light
most favorable to Giant.135 Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274
(11th Cir. 1999).
Although the Cemex Defendants argue that Premier concedes they do not
serve the cement markets at issue, that is an inappropriately narrow reading of the
Complaint. The pleading does allege that the Cemex Defendants had a significant
market share in Atlanta.136 The Complaint also asserts that their participation in
the Cement Cartel made the price-fixing scheme more effective.137 The cartel
ECF 95-1, at 22–23.
ECF 1, ¶ 46.
members coordinated and set prices collectively with each other.138 The relevant
market for cement spans coastal Georgia and coastal South Carolina, and cement
suppliers can reasonably service customers within 200 miles of their mills.139 There
is no suggestion in the Complaint that the Cemex Defendants are not part of that
Accordingly, the Court concludes that Count VII against the Cement
Defendants is not subject to dismissal other than on the statute of limitations
grounds discussed above. But, as noted in In re Delta/Airtran, “[a]lthough the Court
reaches this conclusion, it does not do so lightly. The complaint has its
weaknesses.” 733 F. Supp. 2d at 1362 (cleaned up). See also Twombly, 550 U.S. at 556
(“[O]f course, a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and that a recovery is very
remote and unlikely.”) (cleaned up). Unlike the allegations against the Ready-Mix
Defendants, Premier’s assertions with regard to the Cement Defendants lack some
detail. For example, the Complaint does not supply any facts that suggest an
economic motive for the Cemex Defendants, Giant, and Holcim to have conspired
with the Argos Defendants in a way that only appeared to benefit the Argos
Id. ¶¶ 31.f., 48.b., 48.c.
Id. ¶¶ 59–60.
Defendants. Perhaps such evidence will be flushed out through discovery, or
perhaps not. At this stage, however, the Court concludes that Premier’s wellpleaded allegations are not subject to dismissal on this basis.
Premier lacks standing to seek injunctive and declaratory
In order to seek injunctive relief, an antitrust plaintiff must show that there
is a “significant threat of injury from an impending violation of the antitrust laws.”
In re Delta/Airtran, 733 F. Supp. 2d at 1367 (quoting Zenith Radio Corp. v. Hazeltine
Rsch., Inc., 395 U.S. 100, 130 (1969)). See also Wooden v. Bd. of Regents of the Univ. Sys.
of Ga., 247 F.3d 1262, 1283 (11th Cir. 2001) (“[T]o have standing to obtain forwardlooking relief, a plaintiff must show a sufficient likelihood that he will be affected
by the allegedly unlawful conduct in the future.”) (footnote omitted); Von Der
Werth, 2009 WL 10669723, at *7 (citing Wooden, 247 F.3d at 1284). Similarly,
“[d]eclaratory relief is by its nature prospective. For a plaintiff seeking prospective
relief to have standing, he must show a sufficient likelihood that he will be affected
by the allegedly unlawful conduct in the future.” McGee v. Solicitor Gen. of
Richmond Cnty., Ga., 727 F.3d 1322, 1325 (11th Cir. 2013) (cleaned up).
Although the Complaint alleges that the Cement Cartel’s activities have
continued through the present,140 there is no corresponding allegation concerning
the Ready-Mix Cartel. Moreover, there is no suggestion that Premier could be
harmed in the future by either cartel since the Woods sold all of its operational
assets over two years ago.141 Accordingly, Count VIII for declaratory judgment is
DISMISSED, along with any request for injunctive relief as to Premier’s Sherman
Act claims (Counts I through VII and the ad damnum clause).
The Joint Reply argues that, because Premier did not respond to arguments
about eight of the ten causes of action, Premier has abandoned those claims.142 The
Court agrees that Premier has abandoned its monopolization and attempted
monopolization claims against the Argos Defendants (Counts V and VI), and its
state-law claims (Counts IX and X). Premier did not present any arguments
concerning those counts in any of its responses to Defendants’ various motions to
dismiss. Coalition for the Abolition of Marijuana Prohib. v. City of Atlanta, 219 F.3d
1301, 1325–26 (11th Cir. 2000) (indicating that party can abandon issue by failing
ECF 1, ¶ 120.
Id. ¶¶ 18–19.
ECF 143, at 6.
to brief and argue it before the district court; citing cases). Cf. McMaster v. United
States, 177 F.3d 936 (11th Cir. 1999) (allegations raised in complaint but not argued
to district court abandoned).
This Order disposes of the following motions: the Thomas Defendants’
Motion to Dismiss [ECF 92]; Holcim’s Motion to Dismiss [ECF 94]; Giant’s Motion
to Dismiss [ECF 95]; the Joint Motion to Dismiss [ECF 97]; the Evans Defendants’
Motion to Dismiss [ECF 100]; and the Cemex Defendants’ Motion to Dismiss
[ECF 102]. All claims by Plaintiffs Keith and Joy Woods are DISMISSED. All
claims by Premier are DISMISSED; however, within 21 days after entry of this
Order, it will be permitted to file an Amended Complaint consistent with the
Court’s rulings. Defendants shall have 14 days thereafter to respond to the
SO ORDERED this the 31st day of March 2021.
Steven D. Grimberg
United States District Court Judge
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