Pro Slab Inc v. Argos North America Corp et al

Filing 174

OPINION AND ORDER : The Court denies the motions to dismiss (ECF Nos. 146, 147, 148, 149, 150, 151). Signed by Honorable Bruce Howe Hendricks on 9/19/2019. (vdru, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Pro Slab, Inc., Bremer Construction
Management, Inc., and Forrest Concrete,
LLC, on behalf of themselves and all
others similarly situated,

)
)
)
)
)
Plaintiffs, )
vs.
)
)
Argos USA LLC,
)
Argos Ready Mix LLC,
)
Lafarge North America Inc.,
)
Coastal Concrete Southeast II, LLC,
)
Thomas Concrete, Inc.,
)
Thomas Concrete of South Carolina,
)
Inc.,
)
Evans Concrete, LLC, and
)
Elite Concrete, LLC,
)
)
Defendants. )
_________________________________

Civil Action No.: 2:17-cv-3185-BHH

OPINION AND ORDER

This matter is before the Court on the sufficiency of Plaintiffs Pro Slab, Inc., Bremer
Construction Management, Inc., and Forrest Concrete, LLC’s (“Plaintiffs”) Second Amended
Complaint. Pending before the Court are six motions to dismiss, including a joint motion to
dismiss filed on behalf of all but one Defendant. For the reasons discussed below, the Court denies
each of the motions to dismiss.
BACKGROUND
Plaintiffs Pro Slab, Inc. and Bremer Construction Management, Inc. initially filed this
proposed class action on November 22, 2017, alleging a claim under § 1 of the Sherman Antitrust
Act, 15 U.S.C. §§ 1-7, arising from Defendants’ alleged price fixing in the ready-mix concrete

market in coastal South Carolina and Georgia from at least January 1, 2012, through the present.
On January 15, 2018, Plaintiffs filed an amended complaint alleging that Defendants violated § 1
of the Sherman Antitrust Act by conspiring to fix the prices of ready-mix concrete, to rig bids for
certain projects, and/or to allocate certain territories and customers amongst themselves. Plaintiffs
are purchasers of ready-mix concrete and allege that they have suffered injury as a result of
Defendants’ conspiracy to set artificially high prices for ready-mix concrete. In response, several
Defendants filed a joint motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, asserting that the amended complaint (1) does not identify the role that each Defendant
allegedly played in the conspiracy; (2) offers no factual allegations to support the alleged duration
of the purported conspiracy; and (3) offers no factual allegations to support the inclusion of the
Charleston market area. In addition to the joint motion to dismiss, various Defendants filed
separate motions pursuant to Federal Rule of Civil Procedure 12(b).
On June 28, 2018, the Court issued an order granting the joint motion to dismiss and one
of the separate motions to dismiss on the single issue that the amended complaint failed to allege
facts to support Defendants’ individual involvement (the “Order”). (ECF No. 129). In relevant
part, the Court found that Plaintiffs impermissibly grouped Defendants according to their alleged
corporate affiliation and failed to identify each Defendant’s involvement in the alleged conspiracy.
(Id. at 12-13) (“. . . the amended complaint does not allege any facts showing that the entities failed
to observe proper corporate form or that they identified themselves in documents or in meetings
as one company, and the amended complaint does not even allege which entity or entities
employed the individuals who allegedly attended specific meetings on behalf of the lumpedtogether entities”). The Court dismissed the action without prejudice, explaining that “to the extent
that Plaintiffs can file an action containing sufficient factual allegations as to each Defendant, the

2 

Court does not believe this dismissal should preclude them from doing so, particularly when this
case is still in the early stages.” (Id. at 14). Plaintiffs thereafter filed an opposed motion to amend
the complaint, which the Court granted. (ECF No. 136). Plaintiffs filed the Second Amended
Complaint (“SAC”) on December 4, 2018. (ECF No. 139).
The SAC omits ten Defendants, leaving: Argos USA LLC and Argos Ready Mix LLC
(referred to herein as Argos USA/Argos Ready Mix); Lafarge North America Inc.; Coastal
Concrete Southeast II, LLC; Thomas Concrete, Inc.; Thomas Concrete of South Carolina, Inc.;
Evans Concrete, LLC; and Elite Concrete, LLC (collectively and hereinafter, “Defendants”). The
SAC adds approximately 30 new paragraphs, including a subsection titled, “Defendants Operated
in the Savannah/Charleston Region,” (ECF No. 139 at ¶¶ 66-72), and another subsection titled,
“Individual Conspiracy Participants,” (id. at ¶¶ 124-126, 128-130, 133, 136-137, 140, 142-145,
147, 149, 151-152). The SAC also revises various allegations under the subsection “Market
Allocation and Bid Rigging,” to specify certain time periods with greater precision. See, e.g., (id.
at ¶¶ 164, 169, 171, 173). In all other respects, the SAC is virtually identical to the first amended
complaint.
Defendants responded as before by filing various motions to dismiss under Rule 12(b).
With the exception of Lafarge North America Inc. (“Lafarge”), Defendants filed a joint motion to
dismiss pursuant to Rule 12(b)(6) (“Joint Motion”), asserting that Plaintiffs have alleged no facts
that (1) plausibly support the existence of a conspiracy before September 2011 or after December
2014; and (2) plausibly support the existence of a conspiracy in the Charleston market.1 (ECF No.
148). For its part, Lafarge filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), arguing

1

Defendant Elite Concrete, LLC does not join in the argument asserted as to the Charleston market.
(ECF No. 146 at 1).
3 

that the conspiracy claim as to Lafarge fails to meet the pleading requirements set forth in Federal
Rule of Civil Procedure 8, is time-barred by the applicable four-year statute of limitations, and
fails to meet the standing requirements for both Article III standing and antitrust standing. (ECF
No. 147). Defendant Coastal Concrete Southeast II, LLC (“Coastal”) filed a motion to dismiss
under Rule 12(b)(6), arguing that the Court should dismiss Plaintiff’s “Post-April 2015 Claims”
and “Pre-April 2015 Claims,” and asserting that the claims are time-barred. (ECF No. 150).
Defendants Thomas Concrete, Inc. and Thomas Concrete of South Carolina, Inc. (the “Thomas
Entities”) filed a motion to dismiss under Rule 12(b)(6), arguing that the SAC fails to adequately
allege their involvement in the conspiracy. (ECF No. 151). Defendant Evans Concrete, LLC
(“Evans Concrete”) filed a motion to dismiss under Rules 12(b)(2) and 12(b)(3) for lack of
personal jurisdiction and improper venue. (ECF No. 149). Finally, Defendant Elite Concrete,
LLC (“Elite Concrete”) filed a motion to dismiss under Rule 12(b)(6), asserting that Plaintiffs’
claims are time-barred. (ECF No. 146).
STANDARD OF REVIEW
A.

Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a cause of

action based on lack of subject-matter jurisdiction. “Federal courts are not courts of general
jurisdiction; they have only the power that is authorized by Article III of the Constitution and the
statutes enacted by Congress pursuant thereto.”

Brickwood Contractors, Inc. v. Datanet

Engineering, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (quoting Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986)). Challenges to jurisdiction under Rule 12(b)(1) can be raised in
two different ways: facial attacks and factual attacks. Thigpen v. United States, 800 F.2d 393, 401
n.15 (4th Cir. 1986) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)), disagreed with

4 

on other grounds, Sheridan v. United States, 487 U.S. 392 (1988). A facial attack questions the
sufficiency of the complaint. Id. When presented with this argument, the court must accept the
allegations in the complaint “as true, and materials outside the pleadings are not
considered.” Id. If the court lacks subject matter jurisdiction, it has no authority to evaluate
whether a plaintiff’s complaint fails to state a claim under Federal Rule of Civil Procedure
12(b)(6). See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1997) (instructing
that courts should not assume jurisdiction for the purpose of deciding the merits).
B.

Federal Rule of Civil Procedure 12(b)(2)
Under Rule 12(b)(2), the Court may dismiss a case for lack of personal jurisdiction. “[A]

defendant must affirmatively raise a personal jurisdiction challenge, but the plaintiff bears the
burden of demonstrating personal jurisdiction at every stage following such a challenge.” Grayson
v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). “The plaintiff's burden in establishing jurisdiction
varies according to the posture of a case and the evidence that has been presented to the court.”
Id. at 268. Here, where the Court addresses the personal jurisdiction question by reviewing only
the Parties’ motions and briefs, affidavits attached to the motion, and the allegations in the SAC,
Plaintiffs “need only make a prima facie showing of personal jurisdiction to survive the
jurisdictional challenge.” Id. (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). While
the Court must construe all factual allegations in the light most favorable to the nonmoving party,
the showing of personal jurisdiction “must be based on specific facts set forth in the record in order
to defeat [a] motion to dismiss.” Magic Toyota, Inc. v. Southeast Toyota Distributors, Inc., 784 F.
Supp. 306, 310 (D.S.C. 1992). The Court may consider evidence outside of the pleadings, such as
affidavits and other evidentiary materials, “without converting the motion to dismiss into a motion
for summary judgment.” Id. See Grayson, 816 F.3d at 268 (citing Mylan Labs., Inc. v. Akzo, N.V.,

5 

2 F.3d 56, 62 (4th Cir. 1993) (explaining that courts may consider affidavits from any party when
applying the prima facie standard)). Ultimately, “a plaintiff must establish facts supporting
jurisdiction over the defendant by a preponderance of the evidence.” Grayson, 816 F.3d at 268
(citing Combs, 886 F.2d at 676) (noting that “the burden [is] on the plaintiff ultimately to prove
the existence of a ground for jurisdiction by a preponderance of the evidence”).
C.

Federal Rule of Civil Procedure 12(b)(3)
Under Rule 12(b)(3), a defendant may move to dismiss an action as brought in an improper

venue. A plaintiff need “make only a prima facie showing of proper venue in order to survive a
motion to dismiss.” Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 365-66 (4th Cir. 2012)
(citation omitted). The court must view the facts in the light most favorable to the plaintiff when
determining whether plaintiff has made a prima facie showing of proper venue. Id.
D.

Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) examines the

legal sufficiency of the facts alleged on the face of a plaintiff's complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when
the factual content allows the court to reasonably infer that the defendant is liable for the
misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of
the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a

6 

“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). As the Supreme Court held in Twombly, the pleading standard set forth in Rule 8 “does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Id. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.” Id. (quoting Twombly, 550 U.S. at 557).
DISCUSSION
Section 1 of the Sherman Antitrust Act prohibits any contract or conspiracy in restraint of
trade. 15 U.S.C. § 1. “To establish a § 1 antitrust violation, a plaintiff must prove (1) a contract,
combination, or conspiracy; (2) that imposed an unreasonable restraint of trade.” N.C. State Bd. of
Dental Exam'rs v. FTC, 717 F.3d 359, 371 (4th Cir. 2013). The plaintiff must also demonstrate
that she suffered “the type of injury that ‘the anti-trust laws were intended to prevent and that flows
from that which makes defendants’ acts unlawful.’” Turner v. Va. Dep’t of Medical Assistance
Services, 301 F. Supp. 3d 637, 646 (E.D. Va. 2018) (quoting Brunswick Corp. v. Pueblo Bowl–O–
Mat, Inc., 429 U.S. 477, 489 (1977)).
Plaintiffs allege that Defendants are “the largest Ready-Mix Concrete producers in the
Savannah, Georgia to Charleston, South Carolina region,” and that they are engaged in an ongoing
conspiracy “to suppress and eliminate competition in the markets for Ready-Mix Concrete” by
“fixing prices, rigging bids, and/or allocating territories and customers.” (ECF No. 139 at ¶ 1).
Plaintiffs seek certification of one plaintiff class and three subclasses, “comprised of all individuals
and entities who directly purchased Ready-Mix Concrete from Defendants’ plants in the
Savannah/Charleston Region during the Class Period.” (Id. at ¶ 3). Plaintiffs define the Class

7 

Period as “from at least January 1, 2010 through the present.” (Id. at ¶ 1). Plaintiffs assert that
each one of them, “[d]uring the Class Period, [] directly purchased Ready-Mix Concrete from one
or more Defendants.” (Id. at ¶¶ 9-11).
As discussed below, the Court finds that Plaintiffs have alleged a conspiracy to restrict
trade as to all Defendants, and the Court declines to narrow that claim prior to the Parties engaging
in discovery. In large part, these two rulings guide the Court’s findings on the remainder of the
issues presented in the motions to dismiss.
A.

Pleading Standard for § 1 Conspiracy Claim
As an initial matter, and as a backdrop to the six motions pending before it, the Court finds

it helpful to review the factual allegations against the pleading standard set forth in SD3, LLC v.
Black & Decker (U.S.) Inc., 801 F.3d 412 (4th Cir. 2015). The SD3 court explained that “section
one’s prohibition against restraint of trade applies only to concerted action, which requires
evidence of a relationship between at least two legally distinct persons or entities.” Id. (quoting
Robertson v. Sea Pines Real Estate Cos.,679 F.3d 278, 284 (4th Cir. 2012)). Accordingly, for a
claim to be actionable, the defendants must have specifically made a “conscious commitment to a
common scheme designed to achieve an unlawful objective.” Id. (quoting Monsanto Co. v. Spray–
Rite Serv. Corp., 465 U.S. 752, 764 (1984)). However, “conscious parallelism” is not enough.
Brooke Grp., Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993); Va.
Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 280 (4th Cir. 2002). The pleading
must allege an agreement to restrain trade and “enough factual matter (taken as true) to suggest
that [the requisite] agreement was made.” Twombly, 550 U.S. at 556.

Put another way, the

complaint must contain “enough fact to raise a reasonable expectation that discovery will reveal
evidence of illegal agreement.” Id.

8 

Ready-mix concrete is a compound of Portland cement, water, and aggregates, and may
also contain additives such as fibers, mesh, and chemical admixtures. (ECF No. 139 at ¶ 45).
Ready-mix concrete is manufactured in batch plants and the ingredients may be mixed in agitator
trucks while on the road. (Id. at ¶ 47). The production, delivery, and use of ready-mix concrete
are subject to well-established industry and governmental standards. (Id. at ¶ 49). Because of
these common industry and governmental standards, ready-mix concrete is highly interchangeable
and homogeneous. It is also inelastic, meaning an increase in price of the product does not
necessarily result in change in demand. (Id. at ¶¶ 52, 55-57). Ready-mix concrete remains in a
fluid state for several hours, during which time it can be transported to customers. (Id. at ¶ 45).
Ready-mix concrete has a limited delivery range for technical and economic reasons, which the
SAC explains has resulted “in four distinct geographic markets for Ready-Mix Concrete in the
Savannah/Charleston Region.” (Id. at ¶¶ 74-76).
The Court finds that in narrowing the field of Defendants and clarifying which entity, and
which individual representative of the entity, is responsible for the various actions alleged,
Plaintiffs have pleaded the parallel conduct and “something ‘more,’” which the Fourth Circuit has
specified is necessary to stating a § 1 claim. To begin, the subsections in the SAC titled “List
Prices and Annual Price Increases,” “Market Allocation and Bid Rigging,” and “Add-Ons and
Service Fees,” (ECF No. 139 at ¶¶ 153-179), describe in large part who took part in the alleged
restraint of trade, by what means those individuals arrived at the decision to restrain trade, and
how the plan was implemented. For instance, Plaintiffs allege:
From at least 2010 through the present, Defendants have periodically updated their
list prices to increase their prices for Ready-Mix Concrete, and have sent their
customers price increase announcements informing them of the price increases. For
each price increase during this period, before increasing their list prices,
representatives of Defendants communicated through an intermediary, or
communicated in person and/or by phone, regarding the amount of such increases
9 

and agreed concerning either the increased price per yard for a benchmark mix
(3000 psi) or the amount of an across-the board increase.
(Id. at ¶ 153).
For some or all of these years, Jim Pedrick, cement Territory Sales Manager for
Lafarge and later Argos USA, told representatives of the other Defendants,
including David Melton (Elite), Bo Strickland (Evans), and Tim Coughlin or Tim
Mahoney (Coastal), the amount of the annual price increase proposed by Lafarge
and later Argos, and secured from each of these representatives an agreement that
their respective companies would increase their prices in the same amount.
Subsequently, each of these Defendants changed their list prices in amounts
consistent with the agreement and advised their customers of the amount of the
annual price increase.
(Id. at ¶ 154).
In early 2012, Greg Melton and Andy Stankwytch (Argos USA/Argos Ready Mix)
met with Trey Cook and David Melton (Elite) at a Cracker Barrel restaurant in
Pooler or Savannah, Georgia, and agreed that they would increase their prices
effective April 1, 2012 by $6.00, resulting in a base price of $86.00 per yard for
3000 psi Ready-Mix Concrete. Jim Pedrick then shared the amount of the price
increase with Tim Coughlin (Coastal) and Bo Strickland (Evans), both of whom
agreed to the baseline price of $86.00 per yard for 3000 psi Ready-Mix Concrete.
(Id. at ¶ 155).
In late 2013, Pedrick (Argos USA) coordinated an $8.00 annual price increase
among Defendants effective January 1, 2014. On or about October 9, 2013,
Pedrick coordinated an agreement between Argos USA/Argos Ready Mix and
David Melton (Elite) to implement an $8.00 per yard Ready-Mix Concrete price
increase for 2014. On October 11, 2013, Pedrick told the Ready-Mix Concrete
management team at Argos USA/Argos Ready Mix that he had already
coordinated an $8.00 per yard price increase for 2014 with Elite, that he expected
Evans to agree to the price increase, and that he had lunch scheduled with a
representative of Coastal the following Thursday to ask them to agree to the price
increase.
(Id. at ¶ 158).
In 2011, Defendants Argos USA, LLC/Argos Ready Mix purchased Lafarge. (ECF No.
139 at ¶ 19). Plaintiffs allege that prior to that transition, “[f]rom before 2010,” Lafarge agreed
with Elite Concrete that Lafarge “would take predominantly the commercial jobs while Elite would

10 

take predominantly the residential jobs”:
Greg Melton (on behalf of Lafarge and then Argos USA/Argos Ready Mix)
instructed salespeople to allow David Melton (Elite) to “win” 75% of the residential
work. This agreement was so well-established that Greg and David Melton had a
specific understanding that Elite would provide 75% of the Ready-Mix Concrete
required by residential builder Terry Varnadore, even if Lafarge or Argos
USA/Argos Ready Mix had “won” the job. In many instances, Ready-Mix Concrete
that was supposed to have been provided by Lafarge or Argos USA/Argos Ready
Mix—to Varnadore and others—was actually provided by Elite.
(Id. at ¶ 169).
During at least 2012 and 2013, Greg Melton (Argos USA/Argos Ready Mix),
David Melton (Elite) and sometimes a representative from Coastal met regularly
at the Sunshine Restaurant in Pooler, Georgia to discuss pricing and specific jobs
in the Savannah Market and Hilton Head/Bluffton Market, including the
allocation of jobs by agreement.
(Id. at ¶ 170).
From at least 2010 until June 2016, Greg Melton (on behalf of Lafarge and then
Argos USA/Argos Ready Mix) and David Melton (Elite) communicated regularly
by phone, as often as several times per week, about pricing and specific jobs in
the Savannah Market and Hilton Head/Bluffton Market, and to agree on the
allocation of specific jobs between Lafarge or Argos USA/Argos Ready Mix and
Elite. Greg Melton and David Melton also shared mix designs necessary for
submitting bids on certain jobs to facilitate their bid-rigging and market allocation
scheme.
(Id. at ¶ 171).
By rigging bids, Defendants could enforce their existing agreements regarding
pricing and market allocations in the Savannah Market and Hilton Head/Bluffton
Market, collectively meet their shared goal of maintaining or raising prices, and
split up and share larger projects. Bid rigging also allows parties to a price fixing
or market allocation agreement to deter cheating on the agreement on particularly
lucrative projects that might otherwise reward cheating.
(Id. at ¶ 172).
In addition to the general agreements between Defendants regarding price increases and
market allocation, Plaintiffs allege that in April 2012, Greg Melton, then of Argos USA/Argos
Ready Mix, spoke with his brother David Melton of Elite Concrete, and the two agreed that “the
11 

group of conspiring companies would add a fuel surcharge to all Ready-Mixed Concrete
deliveries.” (Id. at ¶ 174). The SAC further alleges that Defendants, Argos USA/Argos Ready
Mix, Elite Concrete, Evans Concrete, and Coastal agreed to impose on purchasers an
environmental fee and a “short load” fee per delivery or truckload of ready-mix concrete. (Id. at
¶¶ 175-179). The SAC chronicles with specific examples the efforts of Greg Melton (with Lafarge
and then Argos USA/Argos Ready Mix), Jim Pedrick (with Lafarge and then Argos USA), David
Melton (with Elite Concrete), Troy Baird (with Elite Concrete), Bo Strickland (with Evans
Concrete), Tim Coughlin (with Coastal and then with the Thomas Entities), and Tim Mahoney
(with Coastal and then with the Thomas Entities) to monitor the sales and pricing of ready-mix
cement within the subject markets for the purpose of enforcing the alleged agreement between
Defendants and punishing the competitors who declined to participate. (Id. at ¶¶ 182-186).
The SAC further alleges the injury incurred by the alleged conspiracy:
Defendants’ conspiracy to fix or raise prices, allocate markets, rig bids and impose
additional fees from 2010 through the present has harmed competition in the
Savannah Market, Statesboro Market, Hilton Head/Bluffton Market, and
Charleston Market for Ready-Mix Concrete by: (i) limiting or displacing customer
choice; (ii) limiting or displacing competition on the basis of price; and (iii) limiting
or displacing competition on the basis of the inclusion and amount of additional
fees.
Direct purchasers of Ready-Mix Concrete from Defendants’ plants in the Savannah
Market, Statesboro Market, Hilton Head/Bluffton Market and Charleston Market
were substantially impacted by the conspiracy among Defendants to fix or raise
prices and allocate markets, and their enforcement of those agreements through
bidrigging. These purchasers paid substantially more for Ready-Mix Concrete than
they would have paid in the absence of the conspiracy, and therefore suffered
antitrust injury to their business or property.
(ECF No. 139 at ¶¶ 188-189). Finally, the SAC includes reference to national data, which
Plaintiffs assert demonstrates that the four markets at issue here “uniformly exhibited average
prices above those reflected in national and South Regional PPI (Producer Price Index) data for

12 

Ready Mix Concrete” and exhibited price fluctuations that did not represent national trends or
follow the cost of Portland cement. (Id. at ¶¶ 192, 201).
The Court finds that the SAC provides “something ‘more’ than parallel conduct” and
therefore satisfies the plausibility pleading standard for a § 1 conspiracy claim (and underlying
theories) as to Defendants. The Fourth Circuit has given clear warning that courts not impose a
probability standard at the motion-to-dismiss stage or subject a complaint’s allegations to a
“preponderance of the evidence” standard. SD3, 801 F.3d at 425. Accordingly, the Court does
not entertain at this juncture “whether a lawful alternative explanation appear[s] more likely” from
the facts of the SAC. Id. (quoting Houck v. Substitute Tr. Servs. Inc., 791 F.3d 473, 484 (4th Cir.
2015)). For these reasons, the Court denies the pending motions to dismiss to the extent they assert
the SAC fails the plausibility pleading standard. The Court now addresses the additional specific
arguments raised in the six pending motions to dismiss.
B.

The Joint Motion to Dismiss
Defendants represented by the Joint Motion (“Joint Defendants”) argue that the allegations

of conspiracy do not support the temporal and geographical breadth of the claim: the SAC “alleges
a broad conspiracy spanning more than 8 years and 4 geographic markets, while the actual facts
alleged do not support that breadth.” (ECF No. 148-1 at 4). Rather, the Joint Defendants contend,
“Plaintiffs’ limited factual allegations pertain only to activities in the Savannah, Statesboro, and
Hilton Head markets between September 2011 and December 2014.” Id. They assert that the § 1
claim should be dismissed “to the extent it reaches beyond the September 2011—December 2014
period, and to the extent it includes the Charleston, SC market.” Id. The Joint Defendants concede
for the purpose of the motion that Plaintiffs have stated a § 1 conspiracy claim as to the period
between September 2011 and December 2014. See (ECF No. 148).

13 

1. Temporal Scope
Plaintiffs respond that “Defendants’ attempt to artificially ‘bookend’ the Plaintiffs’ claims
between September 2011 and 2014, before discovery has even begun, is at odds with the Complaint
and settled antitrust law,” and “would also reward the Defendants’ own concealment of
wrongdoing.” (ECF No. 161 at 16). Plaintiffs assert that the SAC satisfies the pleading standard
for the “period of 2010 through at least mid-2017,” and state:
Plaintiffs have described the “mechanics” of the conspiracy in extensive detail,
including the role of each Defendant, the individual participants, the methods of
reaching agreement, the subject matter of the agreements, and the methods of
monitoring and enforcement. (SAC ¶¶ 152-79). Plaintiffs have further alleged that
the key employees who entered into and performed the conspiracy had the same
pricing authority and acted in the same roles on behalf of the Defendants throughout
most or all of the entire period. (SAC ¶¶ 123-51). These allegations are substantially
reinforced by economic data from the entire Class Period that is consistent with the
presence of a conspiracy. (SAC ¶ 191 and Figure 6, ¶ 201 and Figures 7 and 8).
(Id. at 17-18).
Both sides cite out of circuit law to support their respective positions. See, e.g., Nypl v.
JPMorgan Chase & Co., No. 15-9300, 2018 WL 1276869, at *4 (S.D.N.Y. Mar. 12, 2018)
(dismissing conspiracy claim to the extent plaintiffs alleged it extended beyond December 31,
2013, explaining that allegations that conspiracy was “ongoing” were conclusory and also
contradicted by documents attached to the complaint); In re Refrigerant Compressors Antitrust
Litig., 795 F. Supp. 2d 647, 661 (E.D. Mich. 2011) (denying Rule 12(b)(6) request to “carve out”
conspiracy claim where the complaint contained “direct or inferential allegations respecting all
material elements to sustain a recovery under the Sherman Act”).

Indeed, the Court was unable

to locate law from within the Fourth Circuit to instruct as to the propriety of narrowing a § 1
conspiracy claim at the Rule 12(b)(6) stage, having decided that the allegations support the claim
as a matter of law. Having reviewed the out of circuit authority that the Parties cite, along with

14 

their respective arguments, the Court declines to narrow the claim at this stage. The Court so
decides in large part because it finds that, although a close call, Plaintiffs adequately allege a
conspiracy that existed prior to September 2011.
Plaintiffs assert:
[f]rom at least January 1, 2010 through the present, Defendants have engaged in
discussions leading to: (i) agreements concerning the list prices, and specific prices
stated in bids, quotes or otherwise, for Ready-Mix Concrete and related fees to be
charged to customers in the Savannah Market, the Statesboro Market, the Hilton
Head/Bluffton Market and the Charleston Market; (ii) agreements concerning the
annual across-the-board price increases for Ready-Mix Concrete to impose on
customers in the Savannah Market, the Statesboro Market, the Hilton
Head/Bluffton Market and the Charleston Market; and (iii) agreements concerning
the allocation, among Defendants, of territories and customers in the Savannah
Market, the Statesboro Market, the Hilton Head/Bluffton Market and the
Charleston Market. These agreements were successful, causing customers in the
Savannah Market, the Statesboro Market, the Hilton Head/Bluffton Market and the
Charleston Market to pay substantially more for ReadyMix Concrete than they
would have in the absence of the conspiracy, and causing antitrust injury to their
business or property.
(Id. at ¶ 152). This paragraph (and paragraphs like it) would not be sufficient, without factual
support, to state a claim. However, Plaintiffs also allege:
From at least 2010 through the present, Defendants have periodically updated their
list prices to increase their prices for Ready-Mix Concrete, and have sent their
customers price increase announcements informing them of the price increases. For
each price increase during this period, before increasing their list prices,
representatives of Defendants communicated through an intermediary, or
communicated in person and/or by phone, regarding the amount of such increases
and agreed concerning either the increased price per yard for a benchmark mix
(3000 psi) or the amount of an across-the board increase.
(ECF No. 139 at ¶ 153).
From at least 2010 through the present, Defendants prepared price sheets and/or
internal price lists that reflected the price increases to which they had agreed. The
price sheets and internal price lists reflecting their agreement were provided to
customers and employees of their respective companies to be used for determining
the price of the Ready-Mix Concrete they sold or offered for sale in the Savannah
Market, Statesboro Market, Hilton Head/Bluffton Market and Charleston Market.

15 

The price sheets and internal price lists reflecting their agreements were used by
Defendants to set actual and offered prices for Ready-Mix Concrete for customers
in the Savannah Market, Statesboro Market, Hilton Head/Bluffton Market and
Charleston Market, who paid the base, list or price sheet price. The price sheets and
internal price lists reflecting their agreement were also used by Defendants as a
starting point to set actual and offered prices in the form of annual contract or quote
prices, specific price quotes, bid prices, structured discount prices and other
negotiated or discounted prices in the Savannah Market, Statesboro Market, Hilton
Head/Bluffton Market and Charleston Market.
Defendants communicated with one another from at least 2010 through the present
to determine whether their agreements on price increases were being successfully
implemented in the prices offered to and/or paid by customers. Defendants were
and are also able to monitor the prices being offered by the other companies for
Ready-Mix Concrete from information provided to them by customers, prospective
customers and other participants in the industry.
(Id. at ¶¶ 161-163). Plaintiffs also allege:
[f]rom before 2011 until September 2011, Lafarge and Evans had an agreement that
Lafarge would not sell Ready-Mix Concrete in Statesboro, Georgia, if the job
required a Lafarge truck to pass an Evans concrete plant. Lafarge told its
salespeople to not sell Ready-Mix Concrete for jobs located in the Statesboro area.
After Argos USA purchased the Lafarge plants in the Savannah/Charleston Region
in September 2011, Argos USA/Argos Ready Mix entered into a new agreement
with Evans for the Statesboro Market. Greg Melton (Argos USA/Argos Ready Mix)
and Bo Strickland (Evans) agreed that neither would go to a price below $88.00 per
yard (using the 3000 psi benchmark) on commercial jobs, and that the two
companies would alternate winning bids for major projects, with the intended
losing bidder submitting a purposefully higher bid.
(Id. at ¶¶ 164-165).
From at least 2010 until June 2016, Greg Melton (on behalf of Lafarge and then
Argos USA/Argos Ready Mix) and David Melton (Elite) communicated regularly
by phone, as often as several times per week, about pricing and specific jobs in the
Savannah Market and Hilton Head/Bluffton Market, and to agree on the allocation
of specific jobs between Lafarge or Argos USA/Argos Ready Mix and Elite. Greg
Melton and David Melton also shared mix designs necessary for submitting bids on
certain jobs to facilitate their bid-rigging and market allocation scheme.
(Id. at ¶ 171).
From at least 2010 through the present, Greg Melton (LaFarge and Argos
USA/Argos Ready Mix), Jim Pedrick (LaFarge and Argos USA), David Melton
16 

(Elite), Troy Baird (Elite), Bo Strickland (Evans), Tim Coughlin (Coastal/Thomas),
Tim Mahoney (Coastal/Thomas) and additional individuals representing
Defendants have engaged in ongoing communications, both directly and through
intermediaries, regarding the sale and pricing of Ready-Mix Concrete in the
Savannah Market, Statesboro Market, Hilton Head/Bluffton Market and Charleston
Market, and specific jobs and specific customers in these Markets, for the purpose
of furthering and enforcing the conspiracy, including without limitation:
 Confirmation of pricing on particular jobs, on list prices and on price increases;
 Making or responding to complaints about undercutting agreed pricing;
 Making or responding to complaints about selling in prohibited locations; and
 Threatening harm or retaliation for failing to comply with agreed pricing or
market allocation.
(Id. at ¶ 182).
Without deciding whether it is appropriate to narrow a claim for conspiracy after having
determined that the pleading states the claim as a matter of law, the Court finds that the allegations
quoted above suffice to support the claim for the contested period of between January 1, 2010
through September 2011. The Court additionally declines to truncate the claim to extending not
beyond December 2014 and agrees with Plaintiffs that the matter is better resolved after the Parties
have engaged in discovery.
2. Geographic Scope
With respect to the geographic scope of the claim, Plaintiffs define the Charleston Market
as “areas served by: Argos USA/Argos Ready Mix plants in North Charleston and Summerville,
and Thomas (formerly Coastal) plants in North Charleston and Summerville,” which Plaintiffs
identify in an illustration included in the SAC. (ECF No. 139 at ¶ 86). The Joint Defendants argue
that Plaintiffs assert “no specific details whatsoever . . . concerning conduct in the Charleston
Market,” and because “Plaintiffs have identified no specific meetings, communications, or
particular jobs in the Charleston Market, their claim of a § 1 conspiracy in that market is entirely
unsupported.” (ECF No. 148-1 at 20). Plaintiffs respond that they have identified “many key

17 

individuals” who were “responsible for forming, implementing and enforcing the Defendants’
price-fixing agreements” and who “had authority over the Charleston area. (ECF No. 161 at 22
(citing ECF No. 139 at ¶¶ 127-32, 141-46)). Plaintiffs further respond that “Defendants’
conspiratorial conduct was directed to the sale of Ready-Mix Concrete by Lafarge, Argos
USA/Argos Ready Mix, Coastal and Thomas in the Charleston Market.” (Id. (citing ECF No. 139
at ¶¶ 152, 161-62, 173, 179, 181-82)).
The SAC identifies James Pedrick as a representative for Lafarge and then Argos USA,
and Andy Stankwytch as a representative of Argos USA, each of whom had “responsibility for
cement sales and distribution” in the “Statesboro, Savannah, Hilton Head/Bluffton, and Charleston
Markets.” (ECF No. 139 at ¶¶ 127-133). The SAC identifies Tim Coughlin who, as the chief
executive officer of Defendant Coastal from January 1, 2010 through April 2015 and senior vice
president of Defendant Thomas Inc., “had authority over all pricing decisions for Ready-Mix
Concrete, additives and related items or services sold by [Coastal and Thomas] in the . . . Savannah,
Hilton Head/Bluffton and Charleston Markets, and including annual price increases and the prices
stated in price lists, bids and other offers to customers.” (Id. at ¶¶ 141-143).
Again, without determining whether it would be proper to render a narrower reading of the
conspiracy claim than what is set forth in the SAC having now determined the claim has been
pleaded as a matter of law, the Court finds that these allegations suffice to envelop the Charleston
Market as defined by Plaintiffs into the claim. The SAC directly implicates Pedrick, Stankwytch,
and Coughlin in the conspiracy. See, e.g., (ECF No. 139 at ¶ 154). And while the allegations
discussing the Charleston Market do not specifically mention Defendants Elite Concrete or Evans
Concrete, these Defendants are implicated by the allegations that their representatives conspired
with Pedrick, Stankwytch, and Coughlin. See id. The Court finds that it would not be appropriate

18 

at this time to remove from the conspiracy claim reference to the Charleston Market. Accordingly,
the Court denies the Joint Motion.
C.

Lafarge’s Motion to Dismiss
Defendant Lafarge seeks dismissal on the following bases: the claim fails to meet the

pleading standard; fails to meet either Article III or antitrust standing requirements; and is barred
by the applicable statute of limitations. (ECF No. 147). For the reasons stated above, the Court
disagrees that Plaintiffs fail to meet the pleading standard. For the reasons stated below, the Court
further disagrees that Plaintiffs lack standing. The Court addresses Lafarge’s statute of limitations
argument in a separate section along with a similar argument raised by Defendant Elite Concrete.
1. Article III Standing
Plaintiffs, as the Parties asserting federal jurisdiction, have the burden of establishing
standing. Mirant Potomac River, LLC v. U.S. E.P.A., 577 F.3d 223, 226 (4th Cir. 2009). Here,
because Defendant Lafarge seeks dismissal at the pleading stage, the assessment of standing is
confined to the allegations in the SAC. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017),
cert. denied sub nom., Beck v. Shulkin, 137 S. Ct. 2307 (2017). To demonstrate Article III standing,
Plaintiffs bear the burden of establishing that they suffered (1) a concrete “injury-in-fact” that is
(2) “fairly traceable” to Defendants’ alleged conduct and is (3) redressable by the relief sought in
the SAC. Beck, 848 F.3d at 269. In a putative class action, courts “analyze standing based on the
allegations of personal injury made by the named plaintiffs.” Id.
In its motion to dismiss, Lafarge asserts a facial challenge to subject matter jurisdiction and
contends inter alia that Plaintiffs lack standing because the SAC “does not show that any of the
named plaintiffs ever made a ready-mix concrete purchase from Lafarge or over which Lafarge
had any influence to cause harm.” (ECF No. 147-1 at 35-36). Lafarge refers to the SAC for

19 

support:
As plaintiffs concede, Lafarge discontinued its concrete operations in Georgia and
South Carolina “in mid-2011.” (Compl. ¶ 13; see also id. ¶ 19). The only
“agreement” “Lafarge” allegedly made was “to not sell Ready-Mix Concrete for
jobs located in the Statesboro area” in Georgia “until September 2011.” (Id. ¶ 164)
Plaintiff Bremer Construction formed over two years later, in 2014; Plaintiff Forrest
Concrete was not registered to do business in Georgia until six years later, in 2017;
and Plaintiff Pro Slab never was registered to do business in Georgia. See supra p.8
& n.4 (describing judicially noticeable Georgia Secretary of State public records).
Not surprisingly, none of the named plaintiffs allege that they purchased directly
from Lafarge or from any defendant in Georgia in 2010-2011.
Id. Lafarge asserts that “[a] company that was not in business at the relevant time (Bremer
Construction) and two companies that were not registered to do business in the relevant geographic
markets at the relevant time (Pro Slab and Forrest Concrete) cannot meet the threshold for Article
III standing.” (Id. at 36).
Plaintiff responds that Lafarge’s contention regarding who was in business in which market
at what time is not relevant to the standing analysis because “Plaintiffs allege that they were
harmed by the conspiracy that included LaFarge.” (ECF No. 156 at 33) (emphasis in original). In
other words, Plaintiffs assert, they have established standing because the SAC alleges both that (1)
the conspiracy impacted purchases of ready-mix concrete in the relevant market at the relevant
time, and (2) Lafarge participated in the conspiracy. Id.
The Court agrees that Plaintiffs adequately allege Article III standing. As stated above, the
allegations asserted in the SAC meet the pleading requirement for § 1 conspiracy, the Court
declines to narrow the temporal scope of the claim, and the SAC squarely alleges Lafarge’s
participation in the alleged conspiracy between January 1, 2010 and September 2011. See, e.g.,
(ECF No. 139 at ¶¶ 123, 124, 127-128, 154). The Court agrees with the reasoning set forth in
Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Co., that “[a]t this stage, plaintiffs
‘need not show more than general factual allegations laying out a good faith basis for how one or
20 

more of the defendants injured plaintiffs . . . . Nor must each plaintiff allege facts against all
defendants, nor each defendant’s relationship with a plaintiff be explicitly identified.” 81 F. Supp.
3d 1, 7 (D.D.C. 2015) (disagreeing that plaintiffs’ failure to state to whom they paid the surcharge
at issue was a fatal pleading defect, explaining that defendants “are jointly and severally liable
under Section 1 for any injury suffered by plaintiffs”) (quoting Bodner v. Banque Paribas, 114 F.
Supp. 2d 117, 125 (E.D.N.Y. 2000); citing In re Uranium Antitrust Litig., 617 F.2d 1248, 1257
(7th Cir. 1980)). See also Beck, 848 F.3d at 270 (“At the pleading stage, general factual allegations
of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts that are necessary to support the
claim”). Accordingly, the Court denies Lafarge’s motion to dismiss as to this contention.
2. Antitrust Standing
Lafarge next argues that Plaintiffs fail to demonstrate antitrust standing. In determining
whether Plaintiffs have antitrust standing, the Court considers the following factors:
(1) the causal connection between an antitrust violation and harm to the plaintiffs,
and whether that harm was intended; (2) whether the harm “was of a type that
Congress sought to redress in providing a private remedy for violations of the
antitrust laws”; (3) the directness of the alleged injury; (4) “the existence of more
direct victims” of the alleged antitrust injury; and (5) “problems of identifying
damages and apportioning them” among those directly and indirectly harmed.

Kloth v. Microsoft Corp., 444 F.3d 312, 324 (4th Cir. 2006) (quoting Associated General
Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 540
(1983)). The first two factors comprise antirust injury, Novell, Inc. v. Microsoft Corp., 505 F.3d
302, 311 (4th Cir. 2007), which is described as injury to competition in the marketplace, DataCell
ehf. V. Visa, Inc., No. 1:14-cv-1658 GBL/TCB, 2015 WL 4624714, at *7 (E.D. Va. July 30, 2015)
(citing Atl. Richfield Co. v.. USA Petroleum Co., 495 U.S. 328, 334 (1990)). See Turner, 301 F.
Supp. 3d at 648 (“a plaintiff must show that the net effect of a challenged restraint is harmful to
21 

competition”) (quoting Cont'l Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508 (4th Cir.
2002)). The relevant marketplace is comprised of : (1) the relevant product market and (2) the
relevant geographic market. Id. (citing E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 441–42 (4th Cir. 2011)). The last three factors of the antitrust standing analysis focus
on Plaintiffs’ proximity to the harm alleged. Novell, 505 F.3d at 311.
Lafarge argues that “all five factors weigh heavily in favor of dismissal.” (ECF No. 1471 at 37). With respect to the first three factors, Lafarge relies primarily on the assertion that it
exited the ready-mix concrete market before any of Plaintiffs entered it. As to the fourth factor,
Lafarge argues that the more direct victims of the alleged antitrust activity are “the concrete
purchasers that directly bought concrete from Lafarge from before 2011 until September 2011 in
Statesboro, Georgia.” (Id. at 39) (quotation marks and alterations omitted). Finally, Lafarge
argues the claim presents problems of apportioning damages considering the entities just described
that purchased concrete from Lafarge from before 2011 until September 2011.
Plaintiffs respond that they have standing because they allege that they directly purchased
ready-mix concrete from one or more Defendants during the Class Period. (ECF No. 156 at 37).
Plaintiffs rely on Kloth, 444 F.3d at 319-20 and Illinois Brick, 431 U.S. at 729 for support.
Moreover, Plaintiffs assert, their allegations in the SAC satisfy each of the five elements. The
Court agrees with Plaintiffs that they have sufficiently alleged antitrust standing. Accordingly, the
Court turns to the argument regarding the statute of limitations.
D.

Statute of Limitations
Defendants Lafarge and Elite Concrete contend that Plaintiff’s § 1 conspiracy claim is

time-barred. Specifically, Lafarge asserts that the SAC acknowledges that it exited the market by
mid-2011. Elite Concrete argues that the only factual allegations that implicate it date to between

22 

early 2012 and October 2013. (ECF No. 146-1).
Plaintiffs commenced this action on November 22, 2017. “The statute of limitations for
federal antitrust claims bars any action ‘unless commenced within four years after the cause of
action accrued,’ plus any tolling.” GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 173 (4th
Cir. 2007) (quoting 15 U.S.C. § 15b); see also Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997)
(price fixing conspiracies do “not permit the plaintiff[s] to recover for the injury caused by old
overt acts outside the limitations period”). The four-year period starts to run when a cause of
action accrues, “and a cause of action generally accrues when a defendant commits an act that
causes economic harm to a plaintiff.”

GO Computer, 508 F.3d at 177 (citation omitted).

Additionally, “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 Research, Inc.,
401 U.S. 321, 338 (1971). The equitable doctrine of fraudulent concealment applies to antitrust
claims. When triggered, the doctrine moves the clock, “starting it from when the wrong was
discovered rather than when it was committed.” Go Computer, 508 F.3d at 178 (“[W]hen the fraud
has been concealed, or is of such a character as to conceal itself, the statute does not begin to run
until the fraud is discovered . . . .”) (citation omitted).
1. Lafarge
Lafarge asserts that all damages are barred by the statute of limitations because it ceased
concrete operations in Georgia and South Carolina in mid-2011. Plaintiffs do not contest that
Lafarge’s alleged conspiratorial conduct occurred outside of the last four years. Rather, Plaintiffs
allege that Lafarge fraudulently concealed the conspiracy and therefore the cause of action is
tolled.

23 

The doctrine of fraudulent concealment applies only “when there has been no negligence
or laches on the part of a plaintiff in coming to knowledge of the fraud.” Go Computer, 508 F.3d
at 178 (citation omitted). Therefore, under Fourth Circuit law, to invoke the doctrine of fraudulent
concealment, Plaintiffs must demonstrate that (1) the Party pleading the statute of limitations
fraudulently concealed facts that are the basis of Plaintiffs’ claims, and (2) Plaintiffs failed to
discover those facts within the statutory period, despite (3) the exercise of due diligence. Id. The
particularity requirement of Rule 9 of the Federal Rules of Civil Procedure applies to allegations
of fraudulent concealment. See Pocahontas Sup. Coal Co., Inc. v. Bethlehem Steel Corp., 828 F.2d
211, 219 (4th Cir. 1987). Intent, however, may be alleged generally. Grand Strand and Water &
Sewer Auth. v. Oltrin Solutions, LLC, No. 4:14-cv-2800-RMG, 2015 WL 13469927, at *5 (D.S.C.
Mar. 3, 2015).
Lafarge argues that Plaintiffs “do not satisfy Rule 9(b) with their conclusory tolling
allegations that never identify a single action taken by Lafarge, much less describe the ‘who, what,
where, and when’ of such action.” (ECF No. 147-1 at 30). Lafarge also argues that Plaintiffs fail
to “plead facts that would satisfy the due diligence element of fraudulent concealment,” and further
“fail to explain, in non-conclusory fashion, why they could not have discovered the combination
and conspiracy alleged at any earlier date.” (Id. at 32) (quotation marks omitted).
Plaintiffs assert that the Fourth Circuit has adopted the intermediate standard for
demonstrating fraudulent concealment, under which “a plaintiff’s proof may include acts of
concealment involved in the antitrust violation itself.” (ECF No. 156 at 26). Plaintiffs further
assert that Lafarge is properly charged with the fraudulent concealment of its co-conspirators, the
other Defendants, and that fraudulent concealment is “determined by the conduct of Defendants
as a whole.” (Id. at 27).

24 

The Court begins with its finding that Plaintiffs have pleaded a § 1 conspiracy claim, which
the Court declines to narrow at this time.2 Accordingly, the next consideration is whether Plaintiffs
have adequately alleged fraudulent concealment as to the conspiracy. Plaintiffs allege that the
illegal price-fixing, bid-rigging, and market allocation activities are “inherently self-concealing,”
and that Defendants concealed and pursued these activities “in a manner that precluded detection,”
as follows:
Defendants also misrepresented market conditions to explain price changes and
other anticompetitive conditions. For example, in their price-increase letters to
Ready-Mix Concrete customers, Defendants falsely attributed price increases and
fuel surcharges to changes in input costs.
Defendants discussed and formed their anticompetitive agreements during secret
meetings and conversations. No one other than the co-conspirators was invited to
or present at these meetings or conversations. Defendants conducted these meetings
and conversations in secrecy to prevent the discovery of their conspiracy by
members of the Class and Subclasses.
Some employees of Defendants reported to their superiors, including regional-level
managers, that the antitrust violations alleged herein were occurring in the
Savannah Market, Statesboro Market, Hilton Head/Bluffton Market and Charleston
Market. In response, those employees were firmly told not to ever communicate
about such conduct, were told that no one would believe them or that there was no
evidence of such conduct, and were punished with negative job reviews or other
retaliatory treatment.
(ECF No. 139 at ¶¶ 206-209). The SAC identifies representatives of Argos USA/Argos Ready
Mix, Coastal, Elite, and Evans as orchestrating the price increases, (id. at ¶¶ 154-155, 157-161);
identifies Greg Melton of Lafarge and then Argos USA/Argos Ready Mix as monitoring the
market on behalf of the conspiracy, (id. at ¶ 181); and identifies representatives of Lafarge, Argos
USA/Argos Ready Mix, Elite Concrete, Evans Concrete, Coastal, and Thomas Entities as engaging

2

As discussed above, discovery may support narrowing the temporal and/or geographical scope
of the claim. However, at this stage, the Court considers application of the statute of limitations
as to the conspiracy claim as it is pleaded in the SAC.
25 

in ongoing communications for the purpose of furthering and enforcing the conspiracy, (id. at ¶¶
182, 183, 186). The Court acknowledges that the question is a close call under the affirmative acts
standard set forth in Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119,
122-25 (4th Cir. 1995), but finds that these allegations amount to more than a mere “failure to
admit to wrongdoing.” Cf. Boland v. Consolidated Multiple Listing Service, Inc., 868 F. Supp. 2d
506, 518 (D.S.C. 2011). Accordingly, the Court finds Plaintiffs have alleged affirmative acts.
The requirement that a plaintiff exercises due diligence is measured by an inquiry notice
standard, which “charges a person to investigate when the information at hand would have
prompted a reasonable person to do so . . . .” Go Computer, 508 F.3d at 178 (citing Brumbaugh
v. Princeton Partners, 985 F.2d 157, 162 (4th Cir. 1993)). “Where a plaintiff knows of a pattern
of particular actions that a defendant has taken against him, though the pattern’s precise scope
might be unclear and its exact legal ramifications uncertain, the plaintiff is on inquiry notice of his
claim.” Id. at 179. Unlike in Go Computer, where the record reflected plaintiff’s suspicions that
defendants were engaged in antitrust activities, the allegations in the SAC do not indicate that
Plaintiffs were in receipt of information that would have prompted a reasonable person to inquire.
Rather, Plaintiffs assert that they were unaware of the alleged conspiracy until July 2017, when
they learned of a federal lawsuit naming certain Defendants, which Defendants’ competitors had
initiated, Southeast Ready Mix, LLC and Mayson Concrete, Inc. v. Argos North America Corp. et
al., No. 1:17-cv-02792- ELR (N.D. Ga. July 24, 2017). (ECF No. 139 at ¶ 214).
Under the doctrine Plaintiffs wish to invoke, “‘when the fraud has been concealed or is of
such a character as to conceal itself,’ and the plaintiff is not negligent or guilty of laches, the
limitations period does not begin to run until the plaintiff discovers the fraud.” Supermarket of
Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119, 122 (4th Cir. 1995). The allegations

26 

in the SAC are sufficient here at the pleading stage to support fraudulent concealment under the
affirmative acts standard and therefore are sufficient to invoke the equitable doctrine of tolling.
See id. at 122-25. Defendants may renew their argument that the claim is time-barred at a later
date, if appropriate.
Finally, Lafarge argues that putting aside the matter of tolling with respect to Plaintiffs’
request for damages, any claim for equitable relief is barred by the doctrine of laches. (ECF No.
147-1 at 33). Lafarge asserts that “it is nonsensical for plaintiffs to ask this Court to order that
Lafarge ‘be restrained’ from any ‘conspiracy alleged herein’ when the only unlawful agreement
attributed to Lafarge allegedly ended in 2011.” Id. Plaintiffs respond that it is improper for
Lafarge to seek dismissal of the type of remedy Plaintiffs request where the SAC adequately states
the cause of action with which the requested remedy is associated. (ECF No. 156 at 31). As stated
above, the Court will allow the § 1 conspiracy claim to proceed fully intact. Accordingly, the basis
for imposing the doctrine of laches is not persuasive. Moreover, because the doctrine is an
affirmative defense, Fed. R. Civ. P. 8(c)(1), it is more appropriately raised on a motion for
summary judgment, Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th
Cir. 1993). Lafarge may renew its argument at a later date, if appropriate.
2. Elite Concrete
Elite Concrete argues that the actionable activity set forth in the SAC is limited to
allegations that Defendants sent letters, in October 2013, setting price increases that would go into
effect in 2014. Elite Concrete contends that Plaintiffs “do not describe any overt act in furtherance
of the conspiracy after November 22, 2013.” (ECF No. 146-1 at 6). Elite Concrete further argues
that Plaintiffs “do not even identify sales by Defendants in 2014 or thereafter,” and contend that
the omission is significant in light of the fact that Plaintiffs have amended their pleading twice.

27 

Id. Finally, Elite Concrete argues that Plaintiffs fail to adequately allege fraudulent concealment
and fail to demonstrate due diligence.
The SAC states a § 1 conspiracy claim that includes Elite Concrete as a co-conspirator.
Additionally, the SAC adequately alleges fraudulent concealment under the affirmative acts
standard, and those allegations implicate representatives of Elite Concrete. For instance, the SAC
names David Melton, representative of Elite Concrete, as participating in the price-increase letter
campaign, and further alleges that Defendants used the price-increase letters to “falsely attribute[]
price increases and fuel surcharges to changes in input costs.” (ECF No. 139 at ¶¶ 154, 155, 207).
Again, it is a close call as to whether Plaintiffs have adequately alleged fraudulent concealment
but at this stage the balance tips in favor of finding that the claim was tolled. Finally, the Court
disagrees with Elite Concrete that in referencing market data for the relevant time period the SAC
demonstrates that Plaintiffs failed to exercise due diligence.3 Elite Concrete may explore in
discovery what market trends Plaintiffs were aware of and when.
E.

Coastal’s Motion to Dismiss
Defendant Coastal contends that the Court should limit the § 1 conspiracy claim as to

Coastal to not extending beyond April 2015, because that is the month during which Coastal sold
its assets to Defendant Thomas Entities, according to the SAC. (ECF No. 150 at 5). Coastal also
contends that the portion of the claim dating to before April 2015 is barred by the statute of
limitations because the only factual allegations implicating Defendant Coastal date to before
November 22, 2013. (ECF No. 150 at 7).

3

In their response to Elite Concrete’s motion to dismiss, Plaintiffs assert the SAC demonstrates a
“continuing violation.” (ECF No. 160 at 15). In finding that Plaintiffs have alleged fraudulent
concealment, the Court determines it need not pass on whether the SAC sets forth continuing
violations.
28 

Because the Court finds that Plaintiffs plead a § 1 conspiracy claim as a matter of law and
declines to limit the temporal scope of the claim at this time, Coastal’s first argument is unavailing.
Coastal’s second argument is similarly unavailing in light of the Court’s finding that Plaintiffs
have adequately alleged fraudulent concealment. Coastal asserts that Plaintiffs fail to satisfy the
particularity requirements of Rule 9(b) “where their fraudulent concealment allegations make no
reference to Coastal at all.” (ECF No. 150 at 8). While the allegations specific to fraudulent
concealment generally omit specific names of individuals and entities, see (ECF No. 139 at ¶¶
204-218), they rely on allegations that identify Defendants’ representatives. For instance, as noted
above, Plaintiffs allege that Defendants “misrepresented market conditions to explain price
changes and other anticompetitive conditions,” and used “their price-increase letters to Ready-Mix
Concrete customers [to] falsely attribute[] price increases and fuel surcharges to changes in input
costs.” (ECF No. 139 at ¶ 207). Plaintiffs allege that Coastal representatives participated in those
price increases and created price increase letters. See, e.g., (id. at ¶¶ 154, 158-160). The Court
construes all facts in favor of the nonmoving party. Accordingly, the Court denies Coastal’s
motion to dismiss.
F.

Evans Concrete’s Motion to Dismiss
Defendant Evans Concrete asserts that the Court should not exercise personal jurisdiction

over it and that venue in this District is likewise improper. (ECF No. 149-1 at 1-2). With respect
to personal jurisdiction, Evans Concrete argues that it lacks sufficient contacts in the state of South
Carolina for the Court to exercise personal jurisdiction consistent with the requirements of due
process. Evans Concrete also argues that the conspiracy theory of jurisdiction does not apply based
on the facts alleged in the SAC. Additionally, Evans Concrete argues that personal jurisdiction
does not lie under application of Section 12 of the Clayton Act, which is relevant to both the

29 

question of personal jurisdiction and venue. Finally, Evans Concrete argues the SAC fails to allege
facts to establish South Carolina as an available venue under 28 U.S.C. § 1391. (ECF No. 149-1).
Plaintiffs respond that the SAC “pleads a prima facie case establishing this Court’s
personal jurisdiction over Evans pursuant to the Fourth Circuit’s conspiracy theory of
jurisdiction”; and, furthermore, “Evans’ alleged acts in furtherance of the conspiracy by
themselves constitute sufficient minimum contacts with the state to establish personal
jurisdiction.” (ECF No. 158 at 8). Plaintiffs also assert that Section 12 of the Clayton Act confers
personal jurisdiction over Evans Concrete and that venue in this District is proper.
1. Personal Jurisdiction: Due Process and Minimum Contacts with the Forum State
A federal district court can exercise personal jurisdiction over a nonresident defendant if
“(1) such jurisdiction is authorized by the long-arm statute of the state in which the district court
sits; and (2) application of the relevant long-arm statute is consistent with the Due Process Clause
of the Fourteenth Amendment.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th
Cir. 2014). Due process requires that a defendant have sufficient “minimum contacts with [the
forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v.
Meyer, 311 U.S. 457, 463 (1940)).

Personal jurisdiction may be exercised specifically or

generally. Specific jurisdiction is based on a defendant’s conduct in the state connected to the
lawsuit. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir. 2002)
(citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). Specific
jurisdiction depends upon “(1) the extent to which the defendant has purposefully availed itself of
the privilege of conducting activities in the state; (2) whether the plaintiffs’ claims arise out of
those activities directed at the state; and (3) whether the exercise of personal jurisdiction would be

30 

constitutionally ‘reasonable.’” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc.,
334 F.3d 390, 397 (4th Cir. 2003). By contrast, general jurisdiction is established where the
defendant’s contacts with the forum state have been “continuous and systematic” so as to support
jurisdiction over claims that are unrelated to those continuous and systematic contacts.
Helicopteros Nacionales, 466 U.S. at 414.4 Simply stated, the defendant must have “minimum
contacts” with the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-76 (1985).
Evans Concrete and Plaintiffs agree that the first prong of the personal jurisdiction inquiry
is satisfied.5 Evans Concrete argues that Plaintiffs cannot satisfy the second prong, that is,
Plaintiffs cannot demonstrate the necessary minimum contacts between Evans Concrete and South
Carolina. For support, Evans Concrete relies on the affidavit of Timothy (“Bo”) Strickland, who
serves as the chief executive officer of non-Defendant Evans Concrete Holdings, Inc. and as
manager of Defendant Evans Concrete. See (ECF No. 77-2). Plaintiffs do not contest the affidavit
or attestations asserted therein, but rather argue that personal jurisdiction is established pursuant
to the alleged § 1 conspiracy.
The Fourth Circuit recognizes the “theory of obtaining personal jurisdiction by the showing
of a conspiracy so that a conspirator not present in the forum State will, nevertheless, be adjudged
to have had a personal presence in the forum State by means of adequate minimum contacts of the
other conspirators therein.” Lolavar v. de Santibanes, 430 F.3d 221, 229 (4th Cir. 2005). This
theory for the exercise of personal jurisdiction requires the plaintiff to “make a threshold showing
that a conspiracy existed and that the defendants participated therein.” Id. To succeed under this

4

Plaintiffs appear to concede that the Court does not have general jurisdiction over Evans
Concrete.
5
South Carolina’s long-arm statute is in accord with the limits of the Due Process Clause of the
United States Constitution. S.C. Code Ann. § 36-2-803; Atlantic Soft Drink Co. of Columbia,
Inc. v. South Carolina Nat’l Bank, 336 S.E.2d 876, 878 (S.C. 1985). 
31 

theory, Plaintiffs must “make a plausible claim” (1) that a conspiracy existed; (2) Evans Concrete
participated in the conspiracy; and (3) a co-conspirator’s activities in furtherance of the conspiracy
had sufficient contacts with South Carolina to subject that conspirator to jurisdiction in South
Carolina. Unspam Technologies, Inc. v. Chernuk, 716 F.3d 322, 329 (4th Cir. 2013). Plaintiffs
must offer more than “bare allegations” to satisfy these requirements, and must “plead with
particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the
conspiracy.” Id. (citing Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031
(D.C. Cir. 1997)).
As discussed above, the SAC meets the plausibility standard of stating a § 1 conspiracy
claim. In fact, in the Joint Motion, Defendant Evans Concrete concedes that the SAC states a § 1
conspiracy claim for the period between September 2011 and December 2014. In declining to
narrow the temporal or geographic scope of the claim, the Court explained in relevant part that
while the allegations discussing the Charleston Market do not specifically mention Defendants
Elite Concrete or Evans Concrete, these Defendants are implicated by the allegations that their
representatives conspired with Pedrick, Stankwytch, and Coughlin. See, e.g., (ECF No. 139 at ¶
154). It is undisputed, at least at this stage, that these individuals represented Defendants Lafarge,
Argos USA, and Coastal, and that those Defendants have minimum contacts with South Carolina.
See, e.g., (id. at ¶¶ 83-87) (discussing Defendants’ Argos USA/Argos Ready Mix and Thomas
Entities’ presence in the Charleston Market and Hilton Head/Bluffton Market). Furthermore, the
SAC alleges that the illicit agreements to fix prices and charge fees applied to customers of readymix concrete in the Hilton Head/Bluffton Market and the Charleston Market, as well as the
Savannah and Statesboro Markets, with the result that customers in all of these markets paid
“substantially more for Ready-Mix Concrete than they would have in the absence of the conspiracy

32 

. . . .” (Id. at ¶¶ 152-163). Accordingly, the Court finds that Plaintiffs have demonstrated a
conspiracy theory of personal jurisdiction.
The Court must also consider whether the exercise of personal jurisdiction over Evans
Concrete is reasonable such that it would not offend traditional notions of fair play and substantial
justice. See Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945-46 (4th Cir. 1994) (listing
considerations such as (a) burden on defendant; (b) interests of the forum state; (c) plaintiff’s
interest in obtaining relief; (d) efficient resolution of controversies as between states; and (e) shared
interests of the several states in furthering fundamental substantial social policies). According to
the SAC, Evans Concrete participated in a conspiracy in which the geographic parameters created
by the location of Defendants’ plants and the limitations on the distance the cement trucks could
drive to make deliveries were known to the participants. Cf. Verizon Online Services, Inc. v.
Ralsky, 203 F. Supp. 2d 601, 622-23 (E.D. Va. 2002) (“Defendants should have reasonably
expected to be haled into court where their [tort] inflicted the greatest harm, and cannot avoid
jurisdiction by simply pleading ignorance of the jurisdictional facts”). The Court finds in
construing the factual allegations in Plaintiffs’ favor, as it must, Evans Concrete knew (or should
have known) that one or more of its co-conspirators was acting in South Carolina and would have
had a reasonable expectation that it could be brought into the state. Accordingly, Evans Concrete
is not before the Court as a result of random contacts or of unilateral activity with another party or
third person, such that exercise of personal jurisdiction over Evans Concrete would be
unreasonable.
In finding that it may exercise personal jurisdiction over Evans Concrete consistent with
the requirements of due process, the Court declines to address whether Plaintiffs can establish
personal jurisdiction as to this Defendant under Section 12 of the Clayton Act. Instead, the Court

33 

turns to Evans Concrete’s contention that venue in this District is not proper.
2.

Venue

The SAC makes general reference to 28 U.S.C. § 1391, which provides three avenues for

determining the proper venue for a civil action. Relevant here, § 1391(b)(2) states that an action
may be brought in “a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the action is
situated.”
Evans Concrete argues that venue in this District is not proper as to it because the SAC
“fails to allege that any part of the events or omissions giving rise to the claims against Evans
occurred in South Carolina.” (ECF No. 149-1 at 16). However, for the reasons explained
throughout this opinion, the Court declines to view the SAC in isolated subparts. See SD3, 801
F.3d at 424-25 (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 310
(2007) (explaining that “courts must consider the complaint in its entirety” to determine whether
“all of the facts alleged, taken collectively,” give rise to relevant inferences, rather than asking
“whether any individual allegation, scrutinized in isolation, meets that standard”)). See also
Phillips v. Crown Cent. Petro. Corp., 602 F.2d 616, 625 (4th Cir. 1979) (“‘[t]he character and
effect of a [Sherman Act] conspiracy are not to be judged by dismembering it and viewing its
separate parts, but only by looking at it as a whole.’”) (quoting Cont’l Ore Co. v. Union Carbide
& Carbon Corp., 370 U.S. 690, 699 (1962)). Plaintiffs have alleged a conspiracy that involved
multiple participants across the coastal region extending from Savannah to Charleston and inland
to Statesboro. Accordingly, in applying § 1391(b)(2), the Court does not focus on the alleged
activities of Evans Concrete alone, as Evans Concrete is but one of the alleged co-conspirators,
but on the alleged activities that give rise to the claim. While the SAC specifies meetings that

34 

occurred in Georgia, the activities at the heart of the claim, i.e., price-fixing, market allocation,
and bid rigging, occurred in Georgia and South Carolina. See, e.g., (ECF No. 139 at ¶¶ 161-162,
169-173). Therefore, the Court finds that venue in this District is proper under 28 U.S.C. §
1391(b)(2).
G.

Thomas Entities’ Motion to Dismiss
Defendants the Thomas Entities purchased certain assets belonging to Defendant Coastal

in April 2015. (ECF No. 139 at ¶¶ 26, 29). The Thomas Entities argue in their motion to dismiss
that the SAC fails to allege successor liability based on the asset purchase. These Defendants
further argue that Thomas Entities executed an asset purchase agreement with Coastal whereby
they disclaimed liability for any violation of law Coastal may have committed prior to the asset
purchase. (ECF No. 151-1). They offer an affidavit, to which the asset purchase agreement is
attached. (ECF No. 151-2). Thomas Entities also argue that in any event the SAC fails to allege
any communication or act tying the Thomas Entities to the § 1 conspiracy. (ECF No. 151-1).
The Court addresses first the affidavit and purchase agreement, which Thomas Entities
submits is appropriate for review at this stage because the agreement is integral to the SAC. For
support, the Thomas Entities assert that “Plaintiffs have relied on Thomas Concrete of South
Carolina’s Asset Purchase Agreement . . . by alleging, ‘In 2015 Coastal sold its assets to Thomas
Concrete of South Carolina, Inc. . . . ,’” (ECF No. 151-1 at 7 n.2), and because the SAC “is
peppered with statements conflating Coastal and the Thomas Entities, apparently because of the
asset purchase,” id. (citing ECF No. 139 at ¶¶ 77–79, 83–88). In adjudicating a motion to dismiss,
a court may consider materials not attached to the complaint when those materials are integral to
and explicitly relied on in the complaint and the plaintiff does not challenge their authenticity.
Phillips v. LCI Intern., Inc., 190 F.3d 609, 618 (4th Cir. 1999). The Fourth Circuit has explained

35 

the rationale for this exception to the rule against considering extrinsic evidence at the Rule
12(b)(6) stage as follows:
the primary problem raised by looking to documents outside the complaint—lack
of notice to the plaintiff—is dissipated “[w]here plaintiff has actual notice . . . and
has relied upon these documents in framing the complaint.” What the rule seeks to
prevent is the situation in which a plaintiff is able to maintain a claim of fraud by
extracting an isolated statement from a document and placing it in the complaint,
even though if the statement were examined in the full context of the document, it
would be clear that the statement was not fraudulent.
American Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)
(quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir.
1997)). The Court disagrees that the asset purchase agreement is integral to and relied upon by
the SAC such that the Court may consider the agreement without converting the motion to dismiss
into a motion for summary judgment. This action concerns the alleged violation of antitrust laws,
not the breach or deficient drafting of the asset purchase agreement between Coastal and the
Thomas Entities, or some other cause of action for which the purchase asset agreement would
provide vital context. See Goines v. Valley Comty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)
(suggesting that a relevant inquiry into whether a document is integral may include whether the
complaint’s “claims . . . turn on,” or are “otherwise based on” statements contained in the
document) (citing Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“reference to documents that
may constitute relevant evidence in a case is not enough to incorporate those documents,
wholesale, into the complaint”); Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015) (document with
“no independent legal significance to [plaintiff's] claim” was not integral to complaint)). Cf.
Blankenship v. Manchin, 471 F.3d 523, 524 n.1 (4th Cir. 2006) (explaining that review of a
newspaper article not attached to the complaint was appropriate in action for violation of First
Amendment right to free speech because the article quoted and gave context to the language that

36 

comprised the heart of the free speech claim). The Thomas Entities can argue the substance of the
asset purchase agreement on a motion for summary judgment.
The Thomas Entities further argue that the SAC fails to adequately allege successor
liability and fails to connect the Thomas Entities with any wrongdoing. (ECF No. 151-1 at 1116).6 However, the Court is tasked with viewing the factual allegations in a light most favorable
to Plaintiffs, and Plaintiffs allege that Coastal merged into and/or was subsumed by the Thomas
Entities. See, e.g., (ECF No. 139 at ¶¶ 26, 29, 30). Plaintiffs also allege that none of the alleged
antitrust activity changed once Thomas Entities controlled Coastal; and rather that the alleged
business of price fixing, bid rigging, and market allocation continued as usual, specifically through
the direction of Tim Coughlin and with the help of Tim Mahoney. (Id. at ¶¶ 141, 143, 146, 182).
The Court finds that the SAC states a § 1 conspiracy claim as to all Defendants, including Thomas
Entities.
CONCLUSION
After careful consideration of the Parties’ briefs, the associated record, and the applicable
law, the Court hereby denies the motions to dismiss (ECF Nos. 146, 147, 148, 149, 150, 151).
IT IS SO ORDERED.
/s/Bruce H. Hendricks_____
Hon. Bruce Howe Hendricks
United States District Judge
September 19, 2019
Charleston, South Carolina

6

The Thomas Entities contend that Delaware law controls the asset purchase agreement and
therefore governs the question of successor liability but assert that in any event the outcome is the
same under South Carolina law. (Id. at 11 n.5). The Court need not resolve the issue at this time.
37