Steves and Sons, Inc. v. Jeld-Wen, Inc.

Filing 976

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/9/2018. (jsmi, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

STEVES AND SONS,

INC.,

Plaintiff,
Civil Action No.

V.

JELD-WEN,

3:16-cv-545

INC.,

Defendant.

MEMORANDUM OPINION

This
INC.'S

MOTION

PLAINTIFF
the

matter
FOR

STEVES

reasons

is

set

PARTIAL

forth

Court

Inc.'s

has

the

below,

on

JUDGMENT

INC.'S

DEFENDANT
ON

COUNTS

COMPLAINT

the

motion

JELD-WEN,

I

AND

(ECF No.

was

considered that

motion

briefing.

denied,

briefing

for

in

See

the

except

judgment

as

ECF No.

context

a

IV OF

375).

lost profits damages under Count One,

ordered further

('"JELD-WEN")

Court

SUMMARY

AND SONS,

the issue of future
which the Court

before

on

as to

578.

of

For

The

JELD-WEN,

matter

of

law

on

the future lost profits damages claim at trial,

after Steves and

Sons,

fact

Inc.

Accordingly,
validity,

{"Steves")

only

the

had

ripeness

put

of

on

that

is addressed in this opinion.

its

claim,

witnesses.

and

not

its

BACKGROUiro

A. Factual Background
1. Pre-2012

Steves
molded

and

JELD-WEN

doorskin

doorskin
to

I n t e r i o r Molded Doorskin Market

is

solid

doorskin

wood

plants,

doorskins

to

done

so.

doors

at

a

States,

slabs

much

create

molded

are

the
That

cost.

ship

type

of

Interior

doorskins

manufacturers
then

interior

which are built

lower

and

door

that

in

sold to

to

use

the

retailers

or

Steves is an independent door manufacturer that is

unable

As

United

interior molded doors,

where

build door

distributors.

the

manufacturers

assembly

currently

in

used to make

resemble

molded

market

are both participants

a

manufacturers.

to

produce

result,

own

doorskins,

it must purchase doorskins

JELD-WEN,

door manufacturer,

its

however,

meaning

that

is

a

and

never

from doorskin

vertically

it both produces

has

integrated

doorskins

and

uses those doorskins internally to manufacture and sell finished
doors.

Before

manufacturers
main

2012,

purchased

suppliers:

(^^CMI''),^

Steves

and

interior

JELD-WEN,

and Masonite.^ Like

other

molded

CraftMaster

JELD-WEN,

independent

doorskins

door

from

three

Manufacturing,

Inc.

CMI

and Masonite

were

^ CMI came into existence following the merger of Masonite and
Premdor in 2002. After the Department of Justice ("DOJ") filed
suit to block the merger, the parties entered into a consent

both

vertically

doorskins

integrated

manufacturers

of

interior

molded

and doors.

2 . Execution of Supply Agreement

On May
term

1,

supply

which

WEN' s

and

("the

would

JELD-WEN.

Statement

of

(^'Def.

a

party

successive

Undisputed
SUMF")

i

Agreement
any

reason

further
upon

the

two-year

into

Agreement"),

inter

alia,

37 9-2

(Under

Material

2019,

a

long-

pursuant

interior
Seal)

Facts

§

(ECF

to

molded
1;

JELD-

No.

37 9)

but would automatically renew

term

contract.

provided

entered

1. The Supply Agreement would be in

seven-year

terminated

Supply

ECF No.

effect through December 31,

for

JELD-WEN

purchase,

from

(Under Seal)

Steves

agreement

Steves

doorskins

2012,

that

written

at

that

Supply

Steves
notice

time

either

Agreement § 2.

could
to

unless

terminate

JELD-WEN,

it

and

The
for
that

decree allowing the merger on the condition that Masonite divest
its Towanda plant, which CMI subsequently purchased.

^ JELD-WEN argues that the Court should not consider this fact
and others referenced in this section because Steves presented
them in narrative format, in violation of Local Rule 56(B). See
Integrated Direct Mktg., LLC v. May, 129 F. Supp. 3d 336, 344-46

(E.D. Va. 2015)
(refusing to consider new facts presented in
narrative format in oppositions to motions for summary judgment
because oppositions did not specifically state which undisputed
material
facts
in
motions
were
disputed).
But
Steves'
opposition,
besides
stating
narrative
facts,
specifically
disputes or agrees to all of JELD-WEN's purportedly undisputed
material facts. Moreover, JELD-WEN included an appendix to its
reply disputing the narrative
facts
in Steves'
opposition.
Therefore, unlike in Integrated Direct Marketing, i t is fairly
easy to discern which facts are disputed and which are not.

JELD-WEN

could

likewise

year written notice
Steves'

Statement

(Under Seal)

to

of

(^'Pl.

terminate
Steves.

Id.

Additional

SAMF")

f

of its

PI.

SAMF SI 2.

without

cause

§ 3(a) (2) (b) ;

Material

seven-

Def.

SUMF SI 2;

(ECF

No.

Facts

452)

Steves had to purchase at least

interior molded doorskin requirements

Steves

upon

4.

Under the Supply Agreement,

80%

it

could,

however,

purchase

from JELD-WEN.

any

quantity

of

doorskins from another supplier that offered a price at least 3%
lower

than

JELD-WEN's

purchase

price,

chance to match that lower price.

The prices that

Id.

after

SI 3;

JELD-WEN

had

the

Supply Agreement § 4.

JELD-WEN would charge Steves for doorskins were

variable and were calculated using a formula based on JELD-WEN's

key

input

costs.

Supply

contract

obligated

products

of

Agreement § 6(c).

JELD-WEN

satisfactory

to

provide

quality.

disputes arose under the Agreement,

Id.

in an alternative dispute

initiating

litigation.

conference

between

mediation i f the

the

process

parties'

conference was

addition,

Steves
§ 8.

with

Finally,

the

doorskin
if

any

the parties were required to

participate

That

In

resolution process before
began

senior

with

an

executives,

unsuccessful.

Id.

§

internal
and

then

10.

3. JELD-WEN's Acquisition of CMI
On June

was

15,

acquiring CMI

JELD-WEN

2 012,

JELD-WEN

and CMI

and merging CMI's

("the CMI Acquisition"),

announced that

operations

JELD-WEN

and assets

into

pending due diligence and the

signing
Steves

of

a

definitive

knew before

WEN was

planning

condition

the

it

agreement.

executed the

of

that

the

Acquisition

would

Steves

that

or non-occurrence of the merger.

SUMF 1 14.

Supply Agreement

to purchase CMI,

effectiveness

Def.

and

reduce

the

that

JELD-WEN

contract

on

Steves was

Although

the

JELD-

did not

occurrence

aware at that time
U.S.-based

doorskin

manufacturers to only JELD-WEN and Masonite. Id. fl 16-18.

On

July

11,

2012,

the

DOJ's

Antitrust

Division

notified

JELD-WEN that it had opened a preliminary investigation into the
proposed

CMI

did

oppose

not

Acquisition.

investigation
action

to

the

on

Steves

merger.

September

prevent

the

indicated

The
28,

CMI

Antitrust
2012

to

the

DOJ

Division

without

Acquisition.

its

taken

any

IS! 19-21.

Acquisition was then completed on October 24, 2012. Id.

Following

the

CMI in Chicago,
plants,

and

merger,

closed

the

head

structure.

doorskin

manufacturing

addition

to

those

CMI's

JELD-WEN

plants

broader

sales

in

staff

also

Iowa

changes,

and

into

shut

down

North

JELD-WEN

one

^ 15.

office

of

hundred

obsolete

dies,

doorskin designs from 31 to 19.

Id.

and
H

reduced

33-41.

JELD-WEN's
its

Carolina.

consolidated

JELD-WEN and CMI doorskin dies into one portfolio,
than

The

as well as two of CMI's four door manufacturing

transitioned

organizational

JELD-WEN

it

closed

having
Id.

that

own

In
the

retired more

the

number

of

JELD-WEN

also

acquired

subsequently constructed a
building,

and

this

disputed.

MiraTec

and

the Towanda plant.

consolidation
JELD-WEN

of

Towanda

plant.

JELD-WEN

$1.6 million paint plant inside that

JELD-WEN's

manufactured at

CMI's

Id. SS

operations

contends

that

Extira

at

it

products

42-43.

the

cannot

are

now

The effect of

Towanda

plant

physically

is

separate

the manufacturing lines for the MiraTec and Extira products from
the

doorskin

plant,
not

id.

manufacturing

H 44,

conducted

lines

that

are

also

at

the

Towanda

but Steves points to evidence that JELD-WEN has
an

extensive

analysis

of

divestiture order with respect to the plant,

the

effects

of

PI. SAMF SISI 37,

a

39.

4. Post-Merger Interactions Between Steves and JELD-WEN

After the merger,
have

continued to

do

JELD-WEN's
so

in most

key input costs declined,
years

since

then.

The

disagree about whether these declining costs are the
JELD-WEN having acquired the low-cost Towanda plant,
the

input

declined

costs

for

notwithstanding

these declining costs,

increased
under

JELD-WEN's

the

the

prices

Supply

the

however,

it

indicating

increases

for

certain

that

plants

Acquisition.

Id.

Id.

Steves
i

JELD-WEN

doorskins

7.

to

might

that

have

JELD-WEN

outside the scope of the Supply Agreement.

of

or whether
would

have

Despite

JELD-WEN has

purchase

Steves

parties

result

SI 5.

Steves claims that

charges

Agreement.

documents

CMI

"legacy"

and

also

doorskins
highlights

imposed
believed

price
were

Some

with

JELD-WEN employees also acknowledged quality problems

the

company's

doorskins

after

the

CMI

Acquisition,

and

Steves complained to JELD-WEN about the declining quality of the
doorskins.

Id.

JELD-WEN made

customers,
unclear,

SISI 10-11.

it more

such as

however,

Acquisition.
doorskins
Acquisition

difficult

Steves,

2014

early

was

agree

2012,

between

according

to

a

new

including

a

"capital

doorskins.

evidence

the merger

for

that

external

to return defective products.

and

consummated

acrimony

when,

after

cites

It is

JELD-WEN began internal testing of thinner

thickness of i t s doorskins.

The

Steves

whether these problems were caused by the CMI

Indeed,

in

Moreover,

to

that

Def.

it

Steves

before

reduced

had

and

the

JELD-WEN

JELD-WEN

structure

charge"—an
asserts

Steves

the

target

SUMF SISI 10-11.

Steves,

pricing

JELD-WEN

informed

for

11%

that

demanded
the

never

in

made

in

that

Supply

increase

it

peaked

July

Steves

Agreement,

the

price

this

of

demand,

noting that Steves has never paid any capital charge under the
Agreement.
September

Id.
10,

SI 8.
2014,

In

any

JELD-WEN

event,

shortly

provided

thereafter,
with

Steves

on
of

termination of the Supply Agreement.

Consequently,

will terminate on September 10,

Id.

The

interest
date.

parties

in

present

continuing

conflicting

to

Steves claims that

2021.

sell

JELD-WEN has
7

the Agreement

3-4.

evidence

doorskins

notice

to

about

Steves

JELD-WEN's

after

that

refused to provide Steves

with any proposal for terms of a new long-term supply agreement,
but JELD-WEN insists that it has told Steves it is interested in

negotiating
this

future

dispute,

doorskin

after

parties

the

sales
agree

that

2021.

Notwithstanding

JELD-WEN

has

supplied

doorskins to Steves since giving notice of termination. Id. ^ 5.
5. Steves' Efforts to Obtain Alternative Doorskin Supply

After

JELD-WEN notified Steves

Supply Agreement,

that

i t would terminate the

Steves began to explore ways

to produce or

acquire interior molded doorskins without relying on JELD-WEN.
Id. SI 32.

One

Masonite.

would

other

supplier

However,

no

Masonite

in

longer

sell

is,

or

ever

July

that

2014,

doorskins
was,

Steves

Masonite

to

amenable

announced

third
to

considered

parties.

selling

that

was

it

Whether

doorskins

to

Steves at reasonable prices is highly disputed. Steves points to
documents

entered

indicating

into

that,

after

long-term supply

the

merger,

agreements

Masonite

with

any

has

not

third-party

customers; will not negotiate the price of its doorskins; limits
external sales of doorskins to customers or products with which

Masonite does not compete;
to meet Steves'

prices

much

needs;

higher

cannot sell Steves enough doorskins

and has only offered Steves doorskins at

than

prices

Masonite

offered

in

2012,

prices JELD-WEN charged under the Supply Agreement in 2015.
SAMF SISI 16-22.
indicates

that

JELD-WEN,
Masonite

however,
would

claims

sell

that

doorskins

some
to

or
PI.

evidence
Steves

at

standard prices;

that Masonite has sold doorskins to external

customers from 2010 to 2016;

and that Steves has not determined

whether the 2015 prices that Masonite quoted to Steves would be
unprofitable for Steves. Def. SUMF if 27-31.

Steves has also pursued relationships with foreign doorskin
suppliers like Teverpan,
unclear

whether

quantity

and

Negotiations

those

range

with

SAMF Slf 24-27.

those

Some

Kastamonu,
suppliers

of

and Yildiz,

can

provide

doorskins

suppliers

that

are

evidence indicates

although it is
Steves

Steves

at

various

that

Steves

with

the

requires.
stages.

Pi.

could obtain

doorskins from Teverpan at prices more than 3% lower than those

JELD-WEN charges under the Supply Agreement,

but other evidence

suggests that the quality of doorskins from foreign suppliers is
inadequate to satisfy Steves.

Finally,

Steves

has

considered

becoming

vertically

integrated by building its own doorskin manufacturing plant. The
parties disagree about

WEN highlights

evidence

to

and

two

years,

how

long this

process might

take.

indicating that the timeline

Steves

has

presented

evidence

JELD-

is closer

showing

that

three to four years is a more realistic estimate.

In any event,

Steves

it

has

not

yet

identified

manufacturing facility.

Id.

a

SI 29.

partner

to

help

build any

6. Initiation of Alternative Dispute Resolution Process

In

January

requested

Steves

2015,

an

consistent

affidavit

with

from

the

Supply

JELD-WEN

Agreement,

supporting

its

announced price increases. Id. SI 33. Then, in March 2015, Steves
demanded

an

internal

conference

JELD-WEN

over

doorskin

pricing

resolution was

reached,

the parties participated in mediation,

and then entered into a

to

resolve

and

its

quality

standstill agreement

dispute

issues.

with

When

no

regarding Steves'

claims under the Supply Agreement and ^^the antitrust laws." Even
after mediation,
and

agreed

to

the parties continued settlement discussions,
four

extensions

of

the

standstill

agreement

between September 2015 and April 2016. Id. SISl 34-36.^ However,
that

agreement did not

at

any point

explicitly prevent

Steves

from filing an antitrust claim. Def. SUMF SI 26.

^ JELD-WEN disputes these facts solely on the basis that they are
inadmissible
settlement

at

trial

communications.

because

they

See

R.

Fed.

reflect

Evid.

confidential

408(a)(2).

But even

if this evidence concerns a "disputed claim" within the scope of
Rule 408, Steves may offer this evidence at trial for purposes

other than "prov[ing] or disprov[ing] the validity or amount" of
that claim, or impeaching one of JELD-WEN's witnesses. Id.
408(a). The Court already recognized as much in denying JELDWEN' s

related

motion

in

limine.

ECF

No.

779.

true that this evidence "cannot be presented
would be admissible in evidence," Fed. R. Civ.
the Court

can consider those

facts

10

here.

Thus,

in
P.

it

is

not

a form that
56(c) (2), so

B. Procedural Background

Following

the

failure

resolution process,
2016,

of

Steves

the

parties'

initiated this

required

action

on

dispute
June

asserting antitrust and contract claims against

29,

JELD-WEN

related to the CMI Acquisition and JELD-WEN's alleged breach of

the Supply Agreement.

Complaint

Complaint

contained the

under

Clayton Act,

the

Breach of Contract;

(ECF No.

following
Section

claims:

7,

COUNT THREE,

5)

15

(Under Seal).

COUNT

U.S.C.

§

ONE,
18;

Breach of Warranty;

a

The

claim

COUNT

TWO,

COUNT FOUR,

Declaratory Judgment, concerning certain rights under the Supply
Agreement and the putative termination of that contract;

FIVE,

Specific Performance,

COUNT

SIX,

sought

two

relief

Trespass
forms

to:

of

pursuant

15 U.S.C. § 26,
(1)

a

regarding the Supply Agreement;

Chattels.^

relief.

to

to

create

to

It

16

JELD-WEN

doorskin

Id. SISI 175-206.

Count

of

to

the

divest

manufacturer

Clayton

assets

interior

molded

doorskin

before the CMI Acquisition.
damages

pursuant

to

One

with

the

market

to

Alternatively,

Section

4

of

its

Act,

sufficient
same

market

(2)

restore

significance that CMI had before the Acquisition; or
the

and

primarily requested injunctive

Section

force

COUNT

competitive

state

Steves sought treble
the

Clayton

Act,

^ On October 2, 2017, the Court dismissed Count Six as moot after
Steves
claim.

notified
ECF No.

the

409.

Court
All

that

it

other claims
11

would

not

persist

remain here.

with

that

15 U.S.C. § 15, for injuries suffered by Steves as a result of

the anticompetitive effects of the CMI Acquisition,
JELD-WEN's

refusal

to

sell

doorskins

to

Steves

including
at

prices

consistent with the Supply Agreement and JELD-WEN's termination
of the contract.

Id.

On August 5,
failure

motion

to

2016, JELD-WEN moved to dismiss Count One for

state

on

SISI 177-78.

a

claim.

October

21,

ECF

No.

2016,

20.

The

concluding

Court

that

denied

the

that

Complaint

plausibly alleged that the CMI Acquisition violated Section 7 by
causing higher doorskin prices,

lower doorskin quality,

reduced

doorskin output, and increased coordination between JELD-WEN and
Masonite,
Steves

and that these anticompetitive effects impacted both

and

the

broader

doorskin

market.

ECF

No.

64.

At

a

pretrial conference on October 19, 2016, the matter was set for
trial to begin on June 12, 2017, and a detailed schedule for the
conduct of pretrial proceedings was thereafter implemented.
No.

65.

Pursuant

to

that

schedule,

the

parties

engaged

ECF
in

extensive discovery.

On
Answer

March

27,

and to

add

2017,

counterclaims

WEN' s recent detection,

discovery,
confidential

the

of

JELD-WEN

^^Steves'

against

leave
Steves

to

amend

based on

its

JELD-

from documents produced by Steves during

theft

of

information." ECF No.

counterclaims

sought

alleged that

JELD-WEN

101 at 1-2.

Steves
12

trade

and two

secrets

and

In relevant part,

former

JELD-WEN

employees, John Pierce and John Ambruz ("Ambruz"), had engaged
in a conspiracy to steal trade secrets from JELD-WEN concerning
how to build and operate a doorskin plant that could produce the

type of doorskins that Steves was buying from JELD-WEN under the
Supply Agreement. Although the Court granted JELD-WEN leave to
assert the counterclaims,

the Court also ordered that they be

tried separately from the antitrust and contract claims.
Nos.

239-240.

April

9,

pretrial

Trial

2018,

for

counterclaims

is

set

to

begin

on

and the parties are proceeding on a separate

schedule

counterclaims

the

ECF

are

for

that
relevant

not

case.
to

ECF
the

No.

374.

Court's

Those

decision

on

summary judgment here.

After completing discovery, Steves and JELD-WEN both moved
for

summary

judgment

on

September

22,

2017.

Steves

sought

a

ruling from the Court that it had established its prima facie
case under Count One that the CMI Acquisition is likely to have

anticompetitive effects in the interior molded doorskin market.
ECF

No.

2017,

381.

The

Court

denied

Steves'

motion

on

November

21,

based on the Court's finding at oral argument that there

were genuine disputes of material fact as to whether Steves had
satisfied the elements of its prima facie case. ECF No. 575.

JELD-WEN sought summary judgment on Count One,
the

divestiture

damages

caused

claim

by

the

and

CMI

the

claim

for

Acquisition,
13

future

and

as to both

lost

Count

profits

Four.

On

November 27,

2017,

the Court denied JELD—WEN's motion to the

extent it sought summary judgment on Count One's divestiture
claim

and

Count

Four,

for

reasons

to

be

explained

in

a

forthcoming memorandum opinion. ECF No. 578. However, the Court
ordered

the

parties

to

submit

supplemental

briefs

on

the

question of whether JELD-WEN was entitled to summary judgment on
Steves'
Nos.

future lost profits damages claim under Count One.

574,

ECF

578.

Shortly thereafter, on December 1, 2017, JELD-WEN notified
the

Court

that

Steves

had

recently

produced

to

JELD-WEN more

than two hundred pages of handwritten notes of Gregory Wysock
(^^Wysock") ,

a

Steves

employee whose

certain aspects of Steves'
JELD-WEN

to

conduct

a

testimony

is

relevant

to

claims. ECF No. 603. After allowing

supplemental

deposition

of Wysock,

the

Court granted JELD-WEN's request to conduct limited additional
discovery
information

of

Wysock,

obtained

Sam

Steves

during

that

II,

and

deposition.

Ambruz
The

based
Court

on
also

amended the briefing schedule for the supplemental briefs as to
Steves'

future

lost profits damages claim under Section 7,

to

allow the parties to include evidence from Wysock's deposition
and

recently-produced notes.

WEN's

motion

for

summary

ECF No.
judgment

732.
did

As
not

a

result,

become

ripe

decision on all issues contained therein until January 9,

14

JELDfor

2018.

The Court then heard further argument on the

profits

damages

claim

January 22 and 26,

at

lost

Final

Pretrial

Conference

It did not,

2018.

the

future

on

however,

decide whether

summary judgment should be granted on that claim before trial
commenced. Instead, the Court allowed Steves to present evidence

at trial to attempt to establish a factual predicate upon which

the jury could determine the fact and amount of the future lost

profits damages with reasonable certainty. On February 6, 2018,
after Steves had introduced that evidence but before its damages

expert

presented

JELD-WEN

his

moved

for

50(a)

on

Procedure

future
a

the

lost

judgment
future

profits

under
lost

damages

Federal

profits

estimates,

Rule

of

Civil

claim-effectively

converting its motion for summary judgment on that issue to a
motion for judgment as a matter of law.

The Court denied that

motion, but its reasons for doing so are irrelevant here.

In any

event,

future

lost

having

profits

entertained

damages,

Steves'

the

trial

Court

will

evidence

not

about

consider

in

this

opinion whether summary judgment on that claim would have been
appropriate.
DISCUSSION

I.

Legal Standard

Under

Fed.

R.

Civ.

P.

56,

a

court

"shall

grant

summary

judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
15

matter of law."

Fed.

R.

Civ.

P.

56(a).

Rule

56 requires the

entry of summary judgment ''after adequate time for discovery and

upon motion,

against

a party who

fails

to make

a showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden

of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). For a court to enter summary judgment, "there can be no

genuine issue as to any material fact, since a complete failure

of

proof

concerning

an

essential

element

of

the

nonmoving

party's case renders all other facts immaterial." Id.

at 323

(internal quotations omitted).

When reviewing a motion for summary judgment, a court must

interpret the facts and any inferences drawn therefrom in the

light

most

Elec.

Indus.

(1986);

favorable
Co.

Lee v.

to

v.

the

Zenith

nonmoving
Radio

Town of Seaboard,

party.

Corp.,

863

475

See

Matsushita

U.S.

F.3d 323,

327

574,

587

(4th Cir.

2017). To successfully oppose a motion for summary judgment, the
nonmoving party must

demonstrate

to

the

court

that

there

are

specific facts that would create a genuine issue for trial. See
Anderson

v.

Liberty

Lobby,

However,

"Mc]onclusory

suffice'

to

judgment,
Andrews,

oppose

a

Inc.,

or

477

U.S.

speculative

properly

supported

242,

250

allegations
motion

for

(1986).
do

not

summary

^nor does a mere scintilla of evidence.'" Matherly v.
859 F.3d 264,

280

(4th Cir.
16

2017)

(quoting Thompson v.

Potomac Elec.

Power Co.,

"Where . . . the
rational

trier

record
of

312
taken

fact

to

F.3d 645,
as
find

a

649

whole

for

{4th Cir.
could

the

2002) ) .

not

lead

non-moving

a

party,

disposition by summary judgment is appropriate." United States
V. Lee,
II.

943 F.2d 366, 368

(4th Cir. 1991).

Count One

JELD-WEN

grounds.

seeks

First,

summary

judgment

on

Count

One

on

three

it contends that Steves has not suffered any

antitrust injury from the CMI Acquisition that is separate from
the contract injury caused by JELD-WEN's alleged breach of the
Supply Agreement. Moreover, JELD-WEN says, even if its breach of
contract could have caused cognizable antitrust harm,

not

shown that any anticompetitive effects

Steves has

of the Acquisition

impacted Steves by forcing it to pay higher prices or receive
lower quality doorskins.

Second,

JELD-WEN asserts that

Steves'

claim for future lost profits damages is not ripe because those

damages are based on speculation about future antitrust injury.
Alternatively,

those future damages depend on the occurrence of

certain future events and are thus entirely speculative.

Third,

Steves'

laches

divestiture

claim

is

barred by

the

doctrine

of

and because Steves cannot show a significant threat of antitrust
injury.

17

A. Antitrust Injury and Impact

'MA]ny person . . . injured in his business or property by
reason of anything forbidden in the antitrust laws" can assert a

private

damages

claim under

Section

4 of

the

Clayton Act.

15 U.S.C. § 15(a). To prevail on that claim, the plaintiff must
demonstrate three elements:

(1)

violation of the antitrust law,

(2) direct injury to the plaintiff from such violation, and (3)
damages sustained by the plaintiff. Windham v. Am. Brands, Inc.,
565 F.2d 59,
claim

is

65 (4th Cir. 1977). The ''gravamen" of a Section 4

not

subsequent

the

antitrust

^'individual

violation

injury."

Id.

itself,

but

Furthermore,

rather

the

the

injury

proven must be "of the type the antitrust laws were intended to
prevent and that flows from that which makes defendants'
unlawful." Brunswick Corp.

477,

489

(1977).

the

anticompetitive

v.

Pueblo Bowl-Q-Mat,

In other words,

effect

Inc.,

acts

429 U.S.

'Mt]he injury should reflect

either

of

the

violation

or

of

anticompetitive acts made possible by the violation." Id.
1. Existence of Antitrust Injury

JELD-WEN's first

satisfy

the

argument is that Steves'

Brunswick

definition

of

injuries do not

antitrust

injury

because

those harms arose under the Supply Agreement, not because of any
reduced competition from the CMI Acquisition.
this

case

to

others

in which courts

JELD-WEN compares

rejected Section 4 claims

based on injuries that were linked to defendant's breach of an
18

existing contract between the parties. See/ e.g.^ Orion Pictures
Distribution Corp. v. Syufy Enters., 829 F.2d 946, 949 {9th Cir.
1987)

(movie theater owner's repudiation of guarantees owed to

film distributor by contract,

after owner acquired competitor,

was

because

not

antitrust

[distributor]

were

guarantees,"

so

injury

fixed by its

''competition

''[owner]'s

duties

to

contractual commitment to pay

was

no

longer

a

factor

in

determining [owner]'s obligation to [distributor]"). Noting that

the parties entered into the Supply Agreement five months before
the CMI Acquisition closed,
cases,

Steves'

injuries

JELD-WEN argues that,

(JELD-WEN's

price

as in those

increases

under

the

Supply Agreement and its refusal to reimburse Steves for claims
of defective doorskins)

stem from the contract rather than as a

consequence of the lessening of competition as a result of the
CMI Acquisition.

This argument mischaracterizes Steves'
ignores

key differences

JELD-WEN.

As

constitute

this

JELD-WEN acknowledges,

antitrust

bound by a contract.
contract

between

injury

even

case

Section 4 claim and
and those

cited by

contractual harm can still

if

the

parties'

actions

are

The relevant question is not whether the

itself predated the anticompetitive effects at

issue,

but instead whether '^the only competition alleged to be injured

predated" the anticompetitive activity. Z Channel Ltd. P'ship v.
Home

Box

Office,

Inc.,

931

F.2d
19

1338,

1342

{9th

Cir.

1991)

(emphasis

in

original).

In

Orion

Pictures,

there

was

no

antitrust injury because ""^the injury to competition in that case

(allegedly

acquiring

the . . . injury
occurred."

monopoly

(loss

of

power)

revenue

at 1345 n.lO. Here,

had

from

the

ended
broken

by contrast,

before
contract)

competition was

not eliminated by the time that the doorskin pricing and quality

injuries
Supply

occurred.
Agreement

To the

contrary,

contained

Steves

provisions

asserts

intended

that the

to

preserve

competition: for instance, the requirement that Steves purchase

only 80% of its doorskins from JELD-WEN,

or the allowance of

purchases from other suppliers if JELD-WEN could not match their
low prices.
also be

Consequently,

breaches of the Supply Agreement can

considered antitrust

injuries

to

the

extent

that

they

resulted from the reduced competition under that contract that
was facilitated by the CMI Acquisition.

Steves has produced sufficient evidence to create a genuine
dispute of fact on this issue.

It has shown at least that the

Acquisition may have allowed JELD-WEN to raise prices under the

Supply Agreement or provide lower quality doorskins because the
merger

undercut

Steves'

higher-quality doorskins
that

there

post-merger

is

no

ability

Teverpan or Masonite,

seek

favorable

from other suppliers.

evidence

availability

to

to

support

of

these

alternate

both of which
20

prices

JELD-WEN claims

theories,

supply—from

JELD-WEN

or

focuses

but

the

either

on—is

a

subject of intense dispute. In addition, Steves has presented
evidence indicating that the merger permitted JELD-WEN to raise

prices

on Madison and Monroe

Masonite

to

terminate

limit

the

JELD-WEN's

doorskin

doorskins,
supply

Supply Agreement

enhanced market

to

to
the

market,

in September

power.

coordinate with

2014

A jury could

and

to

because

of

conclude

that

these steps were ''anticompetitive acts made possible by the [CMI
Acquisition]." See Brunswick, 429 U.S. at 489. As a result, even
if

is

not

extensive,

this

evidence

raises

a

genuine

dispute

about whether Steves has suffered an antitrust injury.

2. Impact from Anticompetitive Effects
JELD-WEN further contends that,

even if JELD-WEN's breaches

of the Supply Agreement could establish antitrust injury, Steves
has not shown that those injuries are causally linked to the CMI

Acquisition.

In the antitrust context,

the injury element "is

often referred to as impact or fact of damage. It is the causal
link between

the

antitrust

plaintiffs [,]

[and]

thus

showing

the

violation and the

injury

that

activity."
Litig. ,

In

re

New

522 F.3d 6,

quotations omitted).

19

requires

Motor

is

the

both

{1st Cir.

2008)

sought by

injury-in-fact

result

Vehicles

damages

and

a

of

the

antitrust

Canadian

Exp.

Antitrust

(internal citations and

To show ''fact of damage" or impact,

"[i]t

is enough that the illegality is shown to be a material cause of
the

injury;

a

plaintiff

need
21

not

exhaust

all

possible

alternative

sources

of

injury

in

fulfilling

his

burden

proving compensable injury." Zenith Radio Corp. v.
Research, Inc., 395 U.S. 100, 114 n.9 (1969)

of

Hazeltine

("Zenith Radio I").

Thus, for example, proof of impact in a Section 4 case can be

shown by proof of what price the plaintiff would have paid had
the merger never occurred. See Robinson v.
Ass^n, 387 F.3d 416, 422 {5th Cir. 2004)

simply

by

proof

competitive

of

rate."

purchase
(internal

at

a

Tex. Auto.

Dealers

{"[Ijmpact may be shown

price

quotations

higher

than

omitted));

In

the
re

Graphics Processing Units Antitrust Litig., 253 F.R.D. 478, 507
(N.D.

Cal.

2008)

the Clayton Act,
higher

price

for

("GPU")

CMHn order to satisfy Section 4 of

plaintiffs must demonstrate that they paid a
their

graphics

card

or

computer

than

they

otherwise would have paid in the absence of a conspiracy.").^
JELD-WEN argues that Steves has not met its burden because it
has not shown what doorskin prices or quality would have been
without the CMI Acquisition.

^ As Steves notes, both Robinson and GPU discussed impact at the
class certification stage, so evidence of a higher price that

every class member would have had to pay would be the only way
to satisfy the commonality and predominance requirements under
Rule 23.
Therefore,

Robinson, 387 F.3d at 422; GPU, 253 F.R.D. at 507.
these cases do not necessarily indicate that an

individual plaintiff must demonstrate a precise competitive
benchmark to show impact, as causation could be shown through
other individualized proof of harm.
22

Here too,

however,

JELD-WEN fails to account for certain

that

supports

Steves'

asserts

that

evidence
Steves

its

theory

liability

of

antitrust

expert,

Carl

injury.
Shapiro

("Shapiro"), did not conduct an empirical analysis of the prices
that JELD-WEN would have charged absent the Acquisition because

he

did not need to:

the Supply Agreement set the competitive

benchmark of prevailing doorskin prices before the merger. JELDWEN

certainly

benchmark,

disagrees

that

the

Agreement

an

accurate

but the weight of Shapiro's analysis is a question

for the jury, not the Court. Moreover,
JELD-WEN increased doorskin prices

as

is

key input

costs

at

evidence indicates that

from pre-merger levels even

JELD-WEN's

legacy plants

declined.^

Similarly, there is genuine evidence that the decrease in JELDWEN' s doorskin quality was exacerbated by the CMI Acquisitioneven

if

JELD-WEN

merger—and

that

quality issues.
create

a

had begun

customers
This

dispute

to

thin

other

than

circumstantial
about

its

whether

doorskins

Steves

evidence
the

395 U.S.

at

114

suffered

the

from

sufficient

Acquisition

anticompetitive effects that impacted Steves.
I,

is

before

to

caused

See Zenith Radio

(circumstantial evidence was

sufficient to

® This evidence can therefore show antitrust impact even without

considering
the
cost
reductions
allowed
by
JELD-WEN's
acquisition of CMI's Towanda plant because JELD-WEN still would
have owned the legacy plants in the absence of the merger.
23

"sustain

the

inference"

of

impact).

Consequently,

summary

judgment on Count One cannot be granted on this basis.
B. Future Lost Profits Damages Claim

JELD-WEN makes two separate arguments as to Steves' Section

4 claim for future lost profits damages.'' First, it asserts that
the claim is not ripe,

as Steves'

future damages relate to an

antitrust injury that Steves may never suffer. Second, JELD-WEN
contends that even if those damages

antitrust injury,

are based on

an existing

Steves cannot recover them because they are

unreasonably

speculative.

decision

on

the

evidence

at

trial,

second
so

As

noted,

argument
the

the

until

validity

of

Court
Steves

reserved
had

Steves'

its

presented

future

lost

profits damages claim is not discussed in this opinion. However,
because the ripeness contention calls into question the Court's

jurisdiction over that claim at trial, the Court will address it
here.

Article

III

of

the

Constitution

limits

federal

deciding actual '^''cases'' and "controversies." Doe v.

courts

Obama,

to

631

F.3d 157, 160 (4th Cir. 2011). JELD-WEN's motion pertains to two

intertwined aspects of the justiciability requirement,

standing

^ Steves seeks these damages only under Count One because it
concedes that JELD-WEN's September 2014 notice of termination of
the Supply Agreement did not breach the contract.
24

and ripeness.® See Miller v. Brown^ 462 F. 3d 312, 319 {4th Cir.
2006)

{''Analyzing ripeness is similar to determining whether a

party has standing."). Although a plaintiff must satisfy three

requirements to establish standing to seek particular relief,
the

only one

relevant

here

is

that

the plaintiff must have

suffered an injury in fact-"an invasion of a legally protected
interest

which

is

(a)

actual or imminent,
Defs. of Wildlife,

concrete

and

particularized,

and

(b)

not conjectural or hypothetical." Lujan v.
504 U.S. 555,

and quotations omitted).

560

However,

(1992)

(internal citations

"the standing doctrine only

answers the question of who may sue, not the question of when a

party may sue,
ripeness."
Common,
added)

which properly is addressed by the doctrine of

Hispanic

897

F.

Leadership

Supp.

2d

424

Inc.

(E.D.

v.
Va.

Fed.

Election

2012)

(emphasis

{citing Miller, 462 F.3d at 319).

The
issues

ripeness
until

a

doctrine

Mun.

inquiry,

Ct.

a

® JELD-WEN

of

L.A.,

court must

does

''prevents

controversy

concrete form.'" Miller,
v.

407,

Fund,

not

is

judicial consideration of

presented

462 F.3d at 318-19
331

U.S.

549,

"balance the

assert

that

584

fitness

Steves

in

^clean-cut

and

(quoting Rescue Army
(1947)).

of the

lacks

Under

issues

standing

to

that

for

seek

future lost profits damages. However, the elements of Article
III standing provide helpful context for JELD-WEN's ripeness
argument;
indeed,
JELD-WEN referenced those elements when
introducing the ripeness challenge in its supplemental brief.
25

judicial

decision

withholding

with

court

the

hardship

consideration."

to

Id.

the
at

parties

319

of

(internal

quotations omitted) . "A case is fit for judicial decision when
the issues are purely legal and when the action in controversy
is

final

and not

other words,
rests

upon

dependent

"Ma]

on

future

claim is not

contingent

future

uncertainties."

events

In

for adjudication if

ripe

Id.

it

that

may

not

occur

as

anticipated, or indeed may not occur at all.'" Scoqgins v. Lee's
Crossing Homeowners Ass'n,
(alteration in original)
U.S. 296,

''is

300

measured

718

F.3d 262,

270

(quoting Texas v.

(4th Cir.

2013)

United States,

523

(1998)). "The hardship prong," on the other hand,

by

the

immediacy

of

the

threat

and

the

burden

imposed on the [plaintiff]," including "the cost to the parties
of delaying judicial review." Miller, 462 F.3d at 319

(internal

quotations omitted). The plaintiff bears the burden of proving
ripeness.

Id.

The parties'

arguments focus almost entirely on the first

element—the fitness of Steves'

future damages claim for judicial

review.

this

The

disagreement

on

issue

concerns

whether

to

characterize the injury causing the future damages as a present

injury or a
stem

That

from

future

injury.

JELD-WEN's

injury,

Acquisition,

says

which

2014

Steves contends
termination

Steves,

enhanced

is

a

of

the

Supply Agreement.

consequence

JELD-WEN's
26

that those damages

power

in

of

the

CMI

the

interior

molded

doorskin

decisions

market

that

would

and

limit

manufacturers to obtain a

whatever

damages

terminates

in

allowed

to

make

ability

the

it

of

competing

stable doorskin supply.

Steves

incurs

September

2021

when

As

the

to

a

Supply

relate

will

long-term

door

result,

Agreement

a

previous

anticompetitive act that impacted Steves long before 2021.
JELD-WEN, on the other hand,

injuries

from

presumably,
Steves

the

CMI

concedes that claims for some

Acquisition

may

be

ripe—such

increased door prices. Nonetheless,

will

only

incur

lost

profits

as,

it insists that

damages

if

it

suffers

another antitrust injury in 2021, when JELD-WEN stops providing
Steves

with

doorskins

doorskin supply.
be

linked

requires

to

and

Steves

cannot

obtain

the

CMI

will come to pass.

Acquisition,

about

whether

its

occurrence

certain

supply

terms,

Steves

substantial

This

events

Specifically, the parties must fail to enter

doorskins

must

doorskin supply,

necessarily

intervening

into another long-term doorskin supply agreement,

to

alternate

JELD-WEN asserts that even if that harm could

speculation

refuse

an

be

to

unable

Steves
to

on

find

JELD-WEN must

commercially

any

other

viable

source

of

and Steves must go out of business or suffer a

loss.

framing

of the

injury relies

on the Supreme Court's

discussion of antitrust injury and damages in Zenith Radio Corp.
V.

Hazeltine Research,

Inc.,

401 U.S.
27

321

(1971)

(^'Zenith Radio

II'') . In that case, the court noted that, for purposes of the
statute of limitations for Section 4 damages claims, the general
rule is that ''a cause of action accrues and the statute begins
to

run

when

a

defendant

commits

an

act

that

injures

a

plaintiff's business." Id. at 338; see also 15 U.S.C. § 15. In
the specific context of ''a continuing conspiracy to violate the
antitrust laws . . . this

[rule]

has usually been understood to

mean" that each injury suffered gives rise to a separate cause

of action that is subject to its own limitations period. Zenith
Radio II,

521 U.S.

401 U.S.

179,

189

at 338; see also Klehr v. A.O.

(1997)

Smith Corp.,

(''Antitrust law provides that,

case of a continuing violation,

say,

in the

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 . . . starts the statutory period
running again . . . ." (internal quotations omitted)).
In

those

circumstances,

damages must be

connected to

discrete injuries that caused them:

[E]ach

separate

cause

accrues

entitles

a

of

plaintiff

action
to

that

so

recover not

only those damages which he has suffered at
the date of accrual,
will

suffer

in

but also those which he
the

future

from

the

particular invasion, including what he has
suffered during and will predictably suffer
after trial. Thus, if a plaintiff feels the
adverse impact of an antitrust conspiracy on
a
particular
date,
a
cause
of
action
immediately accrues to him to recover all
28

the

damages incurred
provable damages
future
that

acts

of

the

all
the

conspirators

on

date.

Zenith Radio II,

citations

from the

by that date and
that will flow in

401 U.S. at 338-39 (emphasis added)

omitted).

By extension,

then,

(internal

^^refus[ing]

to award

future profits as too speculative is equivalent to holding that
no cause of action has yet accrued for any but those damages

already suffered.

In these instances,

the cause of action for

future damages, if they ever occur, will accrue only on the date
they are suffered." Id.

the

^'particular

damages

relate

at 339. Applying this rationale here,

invasion"
to

is,

that
in

Steves'

JELD-WEN's

future

lost

view,

the

profits
eventual

expiration of the Supply Agreement in 2021. To the extent that
such damages are linked to an antitrust injury that has already
occurred,

they are too speculative because so many intervening

acts could change Steves'
Consequently,

doorskin supply by that future date.

if Steves can obtain those damages at all,

it can

only do so when it actually loses JELD-WEN's doorskin supply and

goes out of business in 2021.^

^ To preserve the viability of this potential claim,

JELD-WEN

reiterates its earlier representation to the Court that—should
Steves actually go out of business in 2021—JELD-WEN will not
seek dismissal of a Section 4 damages claim on the basis that
the

claim

accrued

earlier

and

is

barred

by

the

statute

of

limitations. Nor, says JELD-WEN, will it assert any time-related
defense.
29

JELD-WEN's

reading of

Zenith Radio

II misunderstands

the

scope of that case. Other courts have held that the "continuing
violations doctrine" described in Zenith Radio II and Klehr can

only

be

applied

in

''conspiracy

and

monopolization

cases

not

involving mergers or acquisitions." Z Techs. Corp. v. Lubrizol
Corp. ,

753

F.3d 594,

Klehr,

521 U.S.

599

at 189

(6th Cir.

2014)

(citing,

inter alia,

(emphasizing that the case involved "a

price fixing conspiracy"); Zenith Radio II,

401 U.S. at 338-39

(discussion confined to "the context of a continuing conspiracy
to violate the antitrust laws"));

Brunswick

Corp.,

207

F.3d

see also Concord Boat Corp.

1039,

1052

{8th

Cir.

v.

2000)

("Continuing violations have not been found outside the RICO or

Sherman Act

conspiracy

context . . . because

acts

that

simply

reflect or implement a prior refusal to deal or acts that are

merely unabated inertial consequences
restart

the

statute

of

(of a single act)

limitations."

(internal

do not

quotations

omitted)) .

This

action

Acquisition,
to

Steves

decrease

predicated

that—based on
by

allowing

on

a

and

give

without

JELD-WEN

notice

concern

"single

act,"

the

CMI

the disputed evidence—caused injury
to

the quality of its doorskins

customers,

Agreement

is

of

that

30

raise

with no

termination

Steves

doorskin

could

prices,

risk of losing
for

the

obtain

a

Supply

steady

doorskin supply elsewhere/® Those injuries appear to be the very
''unabated inertial consequences

(of a single act)" that do not

implicate the continuing violations doctrine underlying JELDWEN's argument. Concord Boat,

207 F.3d at 1052. JELD-WEN does

not explain why that doctrine applies in this situation,
that Steves'

such

future damages are necessarily separate from the

injury suffered when JELD-WEN gave notice of termination for the
Supply Agreement in 2014.^^ Therefore, JELD-WEN's claim that the
Court must assess ripeness injury-by-injury is irrelevant here.

12

Steves has shown that whether it suffered antitrust injury when

JELD-WEN's counsel claimed at the Final Pretrial Conference
that its notice of termination could not be considered an

antitrust injury because the parties had so stipulated. However,

JELD-WEN provided no evidence of that stipulation,

and Steves'

counsel indicated that the stipulation likely reflected that
JELD-WEN's notice could not give rise to contractual liabilitywhich Steves has agreed is not the case.

It may well be true that Steves could suffer some other future
antitrust injury from the CMI Acquisition that the parties have
not identified, and that the act causing that injury could be of
the type that implicates the continuing violations doctrine.
However, the Court cannot resolve that hypothetical issue here.

The only cases that JELD-WEN cites as purportedly establishing
this principle involved challenges to rules or standards that
were either completed and being enforced, and thus ripe for
review, or were in "early stages of development," and thereby
unripe. See Volvo N. Am. Corp. v. Men's Int'l Prof'1 Tennis
Council, 857 F.2d 55, 64-65 (2d Cir. 1988); Plant Oil Powered
Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 801 F. Supp. 2d
1163, 1183-84 (D.N.M. 2011). The harms that Steves suffered
because of the CMI Acquisition are not as easily separable in a
temporal or causal sense. As a result, it is uncertain whether
the rationale of those cases would hold for Steves' injuries.
31

JELD-WEN provided that notice is a triable factual issue, and it
is clear that a claim based on an existing injury is ripe.
Miller,

462 F.3d at 319.

Moreover,

the only other relevant case cited by JELD-WEN,

SureShot Golf Ventures,

17-127,

2017

inapposite.
antitrust
party

See

WL

Inc.

3658948

There,

v.

Topqolf Int'l,

(S.D.

plaintiff

Tex.

Aug.

alleged

that

Inc.,

No.

24,

CV H-

is

suffered

it

2017),

an

injury following defendant's acquisition of a third

because

defendant

refused

to

give

plaintiff

assurances

that it would exercise its option to renew the parties' contract

for plaintiff's license to proprietary technology developed by
the third party when that contract expired in five years. Id. at
*3-4. The court dismissed plaintiff's Section 4 damages claim as

unripe

because

defendant's

"perceived threats

behavior [we]re speculative and d[id]
at *4.

But,

of monopolistic

not confer standing." Id.

in reaching that conclusion,

the court specifically

noted that plaintiff had not pled that defendant had ''denied it
access to the
of

the

[proprietary technology]." Id.

antitrust

actually
competitors

occurred

(i.e.

from access

personnel for
technology

actions

which

[plaintiff]

controlling

to technology,

installation and service

only

to

companies

outside

centers)." Id.
32

In addition,
allege[d]

prices,
sending
requests,
of

golf

''none
ha[d]

foreclosing

less

qualified

licensing the
entertainment

In contrast, this case has advanced well past the pleading

stage, and the record demonstrates that JELD-WEN's conduct after
the

CMI

Acquisition

amounts

to

considerably

more

than

just

^^threats of monopolistic behavior." Indeed, Steves has presented
evidence creating a genuine dispute of fact as to whether it
suffered

antitrust

injury

when

JELD-WEN

gave

notice

of

termination of the Supply Agreement.

Accordingly,

Steves might

have

injury

the

suffered the

present

antitrust

Golf plaintiff could not even plead.

that

SureShot

Steves has therefore met

its burden in proving that its future damages claim is ripe for
presentation to the jury.
C. Divestiture Claim

Section

16

of

the

Clayton Act

allows

private

parties

to

obtain injunctive relief ''against threatened loss or damage by a
violation of the antitrust laws." 15 U.S.C.

seek injunctive relief under

[Section]

16,

§ 26.

"[I]n order to

a private plaintiff

must allege threatened loss or damage 'of the type the antitrust

laws were designed to prevent
makes

defendants'

Colorado,

U.S.

at

Inc.,

489).

acts

479 U.S.

and that

unlawful.'"

104, 113

flows

Carqill,

(1986)

from that which

Inc.

v.

Monfort

(quoting Brunswick,

of

429

The injunctive relief authorized by this statute

may include an order requiring the acquiring company to divest
the assets of the acquired firm,

private party.

even when the plaintiff is a

See California v. Am.
33

Stores Co.,

495 U.S.

271,

295-96

(1990) .

However,

^^equitable

defenses

laches . . . may protect consummated transactions

attacks by private parties." Id. at 296.
Steves'

divestiture

claim

under

because laches applies here,

Count

such

as

from belated

JELD-WEN argues that

One

must

be

dismissed

and because Steves has failed to

show any threatened antitrust injury from the CMI Acquisition.
1. Laches

^^Laches

proving

imposes

'^(1)

defense is

on

the defendant

lack of diligence by the party against whom the

asserted,

and

(2)

prejudice to the party asserting

the defense.'" White v. Daniel,

(quoting Costello v.
The

defense

909 F.2d 99,

United States,

"generally

applies

plaintiff who has unreasonably
''claims

the ultimate burden of

where

a

defendant

365 U.S.
to

(4th Cir. 1990)

265,

preclude

'slept'

is

102

282

(1961)).

relief

for

a

on his rights," barring

prejudiced

by

a

plaintiff's

unreasonable delay in bringing suit after the plaintiff knew of
the

Co. ,

defendant's

639

F.3d

Microsoft Corp.,

laches

violation."

111,

121

PBM

(4th

444 F.3d 312,

Prods.,

Cir.

325

LLC

2011);

v.

see

(4th Cir.

defendant"

(internal

also

2006)

involves an "equitable balancing of a

with prejudice to a

Mead

Johnson

Kloth

&

v.

(noting that

plaintiff s

quotations

delay

omitted)).

JELD-WEN contends that the undisputed evidence establishes that

Steves unreasonably delayed suit after it became aware that the

CMI

Acquisition

might

violate

Section
34

7,

and

that

the

delay

harmed

JELD-WEN

because

it

completely

integrated

CMI's

operations into its own business following the merger.

As

the

defense

Court

of

laches

circuits."

Steves

3d

537,

NV/SA,
Co.,

545
623

Inc.

has

has

F.3d

Taleff v.

(N.D.

Cal.

Supp.

2d

1235

2017)

Cir.

Inc.,

392

1172-73

those

cases

Cal.

Ginsburg

v.

InBev

Midwestern

Mach.

265,

Cir.

1122-25

Corp.,

JELD-WEN

that

(8th

116

F.

relies

on

of

extreme

remedy,

Rather,

the relevant question is whether JELD-WEN has shown that

JELD-WEN points

fact

277

2d 1118,

Tech.

2000)).

the

Supp.

several

as

But

F.

Supp.

Autonomous

(C.D.

here.

828 F.

in other

252

2010);
F.3d

equitable

claims

Inc.,

(citing

(8th

v.

''the

antitrust

JELD-WEN,

Sw. Airlines Co.,
Garabet

recognized,
bar

v.

Va.

Airlines,

2011);

1159,

Inc.

(E.D.

1229,

Nw.

2004);

been used to

& Sons,

& n.7

V.

previously

out,

is

divestiture

not pertinent

is

an

here.

there is no genuine dispute about the reasonableness of Steves'
delay or the prejudice to JELD-WEN.
The

that

evidence

burden.

intensive

The

in

the

record

application

analysis.

See

shows

of

White,

that

laches

909

JELD-WEN

is

F.2d

has

generally

at

102

not

a

met

fact-

(''[WJhether

laches bars an action depends upon the particular circumstances
of the case.").

And here,

to

of

both

Steves'

prongs
delay,

Acquisition

it

would

the
is

unresolved factual questions remain as

laches

unclear

have

inquiry.
when

First,

Steves

anticompetitive
35

with

respect

believed that

effects,

the

given

to
CMI

the

possibility

that

doorskin

prices

and

protected by the Supply Agreement.

121. Moreover,

quality

might

See PBM Prods.,

Second,

dispute

resolution

delay,

procedure

see White,

of prejudice is uncertain,
integrating

these

639 F.3d at

under

initiating the

that

Agreement.

even assuming JELD-WEN's burden is lower in light of the

length of Steves'

of

been

evidence suggests that Steves acted promptly once

it learned of JELD-WEN's anticompetitive conduct,

requisite

have

issues

the degree

as the parties dispute the costliness

JELD-WEN's

are

909 F.2d at 102,

and

unresolved,

CMI's

summary

operations.
judgment

on

Given
the

that

basis

of

laches is inappropriate.
2. Threat of Antitrust Injury

Of
still

course,

must

be

to
able

prevail
to

on

its

demonstrate

divestiture
"a

claim,

significant

Steves

threat

of

injury from an impending violation of the antitrust laws or from

a

contemporary

violation

likely

to

continue

or

recur.''

Zenith

Steves argues that its filing suit within the Clayton Act's
four-year statute of limitations for damages actions is relevant
to this factor. It cites a recent Supreme Court case, Petrella
V.

Metro-Goldwyn-Mayer,

Inc.,

134 S.

Ct.

1962

(2014),

as holding

that laches cannot be applied when a plaintiff has filed suit
within the limitations period imposed by a statute. Id. at 1977.
Even if that holding applies to Clayton Act claims, the fouryear statute of limitations applies to Section 4 damages claims,
not Section 16 divestiture claims.

See 15 U.S.C.

§

15(b).

Although JELD-WEN may be right that the consummation of the
merger is sufficient prejudice to implicate laches, the cost of
any divestiture order is still relevant to the Court's balancing
of the equities. See Ginsburg, 623 F.3d at 1235-36.
36

Radio

I,

395 U.S.

1170

("Section

cognizable

in

antitrust

future

requires

equity .

.

a

threatened

. proximately

{internal

This

doorskin

assertions

supply

fails

regarding
that

once

for

its

the

Steves'

potential

itself

is

CMI

that

are

Just

as

Acquisition
likely
with

to

by

has

that

from

Steves

contractual

same

reasons

injury

because

an

JELD-WEN

can obtain

relationship

as

JELD-WEN's

claim.
could

already
or

Section

summary

the

JELD-WEN's

be

prevented

evidence

by

of

Steves'

a

genuine

sides—about

whether

anticompetitive

effects

Moreover,

evidence

continue

Steves'

preclude

divestiture

on

both

caused
recur.

4

See

damages

judgment

on

there is

supra

Section

claim,

these

Steves'

II.A.

factual

Section

16

claim.

Count Four

JELD-WEN

also

moves

for

summary

arguing that it does not present a
by

injury

omitted)).

damages

future

mistaken,

disagreement—supported

III.

or

loss

resulting

quotations

ability to do either is disputed.

disputes

2d at

efforts to find another doorskin supplier or manufacture

doorskins

the

Supp.

ends.

argument

contention

116 F.

Steves cannot do so because its speculative claims

JELD-WEN

Steves'

see also Garabet,

injury are belied by evidence

alternative
with

16

violation.''

asserts that
of

at 130;

Article

III

because

the

judgment

Count

Four,

case or controversy required

termination
37

on

date

of

the

Supply

Agreement

is

Declaratory
the

facts

having

not

show

Ross V.

Reed,

is

judgment

U.S.C. § 2201,

is

28

substantial

legal

warrant

Zwickler,

A declaratory

Act,

""'^a

adverse
to

there

dispute.

Judgment

reality

V.

in

the

issuance

719 F.2d 689,
394

no

U.S.

694

103,

controversy

Agreement because,

of

a

{1969)).

about

the

1983)

if

parties

immediacy

declaratory

{4th Cir.

108

between

sufficient

of

the

only proper

controversy,

interests,

under

and

judgment.'"

{quoting Golden

JELD-WEN

contends

termination

date

of

notwithstanding its previous position,

agrees that the termination date is September 10,

that

2021,

the

it now

and that

it will supply Steves with doorskins until that date.
However,
current

recently

disputes

stance

as

about

prevent

March

the

summary

2015,

credibility

judgment

JELD-WEN

termination date under the

on

asserted

of

JELD-WEN's

Count

that

Supply Agreement was

Four.

the

As

proper

ambiguous,

and

reserved the right to argue that the Agreement terminated on the

original December 31,

2019 date,

rather than seven years after

JELD-WEN gave notice of termination—that is,
ECF No.

position

452-64

has

(Under

changed

Seal)

and

it

f

13.

JELD-WEN

believes

that

September 10,
now

the

claims

later

2021.

that

date

its

is

correct. But where a defendant seeks to moot a claim through its

voluntary conduct,

it absolutely clear

it bears the '''heavy burden'" of "'ma [king]

[to the court]

that the allegedly wrongful

behavior could not reasonably be expected to recur.'" Friends of
38

the Earth,

Inc.

v.

167, 189 (2000)
Export

Ass^n,

Laidlaw Envtl.

Servs.

(TOC),

Inc.,

528 U.S.

(quoting United States v. Concentrated Phosphate
393

U.S.

199,

203

(1968)).

JELD-WEN

has

done

nothing to convince the Court that its apparent change of heart
is

genuine

beyond

uncontroverted

insufficient

fact

to

Accordingly,

listing
in

the

its

satisfy

termination

motion.

This

JELD-WEN's

date

minimal

as

an

step

is

substantial

burden.

JELD-WEN's motion will be denied to the extent that

it seeks summary judgment on Count Four.
CONCLUSION

For
MOTION

the

FOR

foregoing

PARTIAL

reasons,

SUMMARY

PLAINTIFF STEVES AND SONS,

denied,

except as to Steves'

under

Count

trial

in the

matter

of

One,

the

DEFENDANT

JUDGMENT

INC.'S

ON

JELD-WEN,

COUNTS

COMPLAINT

I

INC.'S

AND

(ECF No.

IV

375)

was

future lost profits damages claim

validity

of

which

the

context of JELD-WEN's motion

Court

for

decided

judgment as

law.

I t is so ORDERED.

/s/

Robert E.

Payne

Senior United States District Judge

Richmond, Virginia
Date:
February

OF

2018

39

at

a