Ashley Furniture Industries, Inc. v. Packaging Corporation of America et al

Filing 145

OPINION AND ORDER denying 109 Partial Motion to Dismiss or for Judgment on the Pleadings; granting in part and denying in part 114 Partial Motion to Dismiss; denying 116 Partial Motion to Dismiss; denying 117 Partial Motion to Dismiss; denying 121 Partial Motion to Dismiss; granting in part 144 Joint Motion to Stay. Signed by District Judge William M. Conley on 9/26/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ASHLEY FURNITURE INDUSTRIES, INC.,
Plaintiff,

OPINION AND ORDER

v.
16-cv-469-wmc
PACKAGING CORPORATION OF AMERICA,
et al.,
Defendants.

Plaintiff Ashley Furniture Industries, Inc. (“Ashley”) is a purchaser of
containerboard products who alleges that between 2004 and 2013, defendants,
containerboard manufacturers, conspired to restrict output and raise prices in violation of
Section 1 of the Sherman Act, 15 U.S.C. § 1. Before the court are defendants’ partial
motions to dismiss plaintiff’s claims of a conspiracy lasting beyond 2010 and plaintiff’s
state law claims under Wis. Stat. § 133.14. As explained in more detail below, because
plaintiff has plausibly alleged a conspiracy extending into 2013, and because its claims as
to § 133.14 are adequately pled, defendants’ motions to dismiss will be denied.
Nevertheless, the court will grant in part the parties’ recent, joint motion to stay further
proceedings for the reasons set forth at the end of this opinion.

BACKGROUND
In its second amended complaint, which is the operative pleading, Ashley alleges an
ongoing conspiracy among defendants to restrict output and raise prices of containerboard
products between 2004 and 2013. As explained in more detail in this court’s opinion and

order on defendants’ motion to transfer this case to the Northern District of Illinois, Ashley
Furniture Industries, Inc. v. Packaging Corp. of America, No. 16-cv-469-wmc, 2017 WL
3207061 (W.D. Wis. July 28, 2017), plaintiff opted out of Kleen Products LLC, et al. v.
International Paper, et al., Case No. 1:10-cv-05711, a class action involving substantially
similar claims and defendants, but which was limited to a conspiracy period between 2004
and 2010.
Generally speaking, the second amended complaint includes allegations that
beginning in or around 2004, the containerboard industry was experiencing decreasing
profit margins and increased demand. (2d Am. Compl. (dkt. #95) ¶ 6.) In response to
those market conditions, plaintiff alleges that defendants agreed to a scheme to restrain
capacity artificially, and thus charge supra-competitive prices. (Id.) The second amended
complaint further alleges that in their effort to collude, defendants were aided by common
membership in industry and trade organizations, as well as consolidation and other market
characteristics in the containerboard industry that are conducive to price-fixing. (Id. at
¶¶ 37-46.)
Although, as already mentioned, Kleen Products is limited to an alleged conspiracy
period ending in 2010, Ashley alleges that similar market dynamics and behaviors
characteristic of price-fixing collusion continued through 2013.

Among these were

additional acquisitions, adjustments of capacity and coordinated price increases. (Id. at
¶¶ 185-90.) WestRock RKT Company, formerly Rock-Tenn Company, was responsible
for one of these acquisitions.1 In 2011, WestRock RKT acquired Smurfit-Stone Container

1

Plaintiff named WestRock RKT Company as a defendant in the second amended complaint, but

2

Corporation, which had emerged from bankruptcy a year earlier, and merged it into a
subsidiary, creating RockTenn CP, LLC, which itself later became defendant WestRock
CP, LLC. (Id. at ¶ 20.)
In addition to Sherman Act Section 1 claims, plaintiff’s second amended complaint
also includes claims that defendants’ conspiracy gives rise to additional remedies under
Wisconsin state law. Specifically, plaintiff alleges that all of its contracts or agreements for
purchases of containerboard products from defendants arise out of an illegal antitrust
conspiracy in violation of Wis. Stat. § 133.03. Accordingly, plaintiff seeks to recover “all
payments made under the void contracts or agreements” under § 133.14. (Id. at ¶ 215.)

OPINION
I.

Conspiracy Period
All defendants move to dismiss plaintiff’s claims that an illegal agreement extended

beyond 2010 through 2013.2 Opting not to challenge plaintiff’s allegations of a conspiracy
between 2004 and 2010, the same conspiracy period litigated in Kleen Products, defendants
argue primarily that plaintiff has failed to plead allegations of a conspiracy between 2011

those parties stipulated to the dismissal of all of plaintiff’s claims against WestRock RKT, which
the court accepted on August 25, 2017, having heard no objection from any of the other defendants.
(Dkt. #142.)
2
Defendant Georgia-Pacific LLC filed its own brief in support of its motion to dismiss the post2010 conspiracy claims or, in the alternative, for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c). (Dkt. ##109-10.) The remaining defendants -- International Paper
Company, WestRock CP, LLC and Packaging Corporation of America -- joined in the brief in
support of the motion to dismiss filed by defendants Temple-Inland Inc., TIN Inc., Cascades USA,
Inc., Cascades Canada ULC and Weyerhaeuser Company. Because the differences between the
parties’ briefs are immaterial for purposes of resolving their motions, the court will not address them
separately.

3

and 2013 with sufficient factual specificity to pass muster under the plausibility pleading
standard described in the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550
U.S. 554,556 (2007).3
More specifically, defendants argue that it is not enough for plaintiff to maintain a
§ 1 claim for the three-year period beyond that claimed in Kleen Products by simply alleging:
(1) Smurfit’s 2011 acquisition by WestRock RKT after bankruptcy; (2) International
Paper’s 2012 acquisition of Temple-Inland; and (3) two parallel price increases in 2012
and 2013. (See Defs.’ Opening Br. (dkt. #115) at 12 (citing 2d Am. Compl. (dkt. #95)
¶¶ 185-86, 189-90).) Moreover, with regard to the mergers, defendants point out that
both were cleared by the United States Department of Justice. (Id.) With respect to
another allegation in the second amended complaint, defendants also assert that plaintiff
misleadingly quoted an article analyzing stocks, which was published on the Internet, to
infer that containerboard capacity -- as opposed to other paper products -- decreased during
this three-year period, an assertion that plaintiff conspicuously fails to address. (Def.’s
Opening Br. (dkt. #110) at 5-7; Defs.’ Opening Br. (dkt. #115) at 13.)
Defendants bolster their arguments by citing cases standing for the proposition that
the filing of the 2010 lawsuit in Kleen Products neutralizes any plausible inference that an
illegal agreement continued after its commencement. See In re Domestic Drywall Antitrust
Litig., Civil Action 15-cv-1712, MDL No. 13-2437, 2016 WL 3453147, at *3 (E.D. Pa.
June 22, 2016) (describing claims based on price increases in last two years of alleged

Plaintiff concedes that for purposes of defendants’ motion, the conspiracy began no earlier than
2004. (Pl.’s Opp’n Br. (dkt. #130) at 16.)
3

4

conspiracy period to be implausible as pled, “[e]specially in light of the intervening [class
actions filed against the defendants]”); In re Folding Carton Antitrust Litig., 465 F. Supp.
618, 622 n.3 (N.D. Ill. 1979) (noting that “it is highly improbable that the price fixing
conspiracy was continued in 1975 while the government’s criminal investigation was
progressing”), vacated on other grounds, 699 F.2d 867 (7th Cir. 1979).
In response, plaintiff essentially argues that truncating the end date of the alleged
conspiracy at the pleadings stage makes little sense given that no defendant moves to
dismiss the allegations of a conspiracy between 2004 and 2010. In doing so, plaintiff cites
a handful of cases for the notion that parties should not “dismember” conspiracy
allegations and evaluate their sufficiency separately, as well as the notion that a conspiracy
is presumed to continue until an affirmative showing of abandonment. (Pl.’s Opp’n Br.
(dkt. #128) at 2-3.) Plaintiff also attempts to draw a contrast between allegations of the
conspiracy’s start date and its end date for purposes of deciding a motion to dismiss,
suggesting that courts have more closely scrutinized the former.
Bolstering its argument, plaintiff points to In re Lithium Ion Batteries Antitrust
Litigation, No. 13-MD-2420, 2014 WL 309192 (N.D. Cal. Jan. 21, 2014), in which the
district court found that although the plaintiffs did not adequately plead the beginning of
a conspiracy period, the end of the alleged period should not be similarly trimmed,
particularly in light of the plausible inference that the defendants did better to conceal
their illegal agreement over time. Id. at *12 (“[I]n this later period, unlike in the years
2000 and 2001, the relative paucity of allegations is plausibly explained by increased care
and efficiency in the operation of the conspiracy.”).
5

While the case that plaintiff cites in support of its argument that the adequacy of
allegations as to the end of a conspiracy should be viewed more leniently than those as to
its beginning is largely inapposite as applied here, the court agrees with plaintiff that the
conspiracy allegations here between 2011 and 2013 have been adequately pled, albeit just
barely. Defendants contend that the allegations as to that period are inadequate in part
because plaintiff does not allege any “specific meetings or communications” during that
time. See In re Urethane Antitrust Litig., 663 F. Supp. 2d 1067, 1076 (D. Kan. 2009)
(truncating the start of the alleged conspiracy in large part because there were “no
allegations of specific meetings or communications occurring during that period,” as
opposed to the allegations with respect to a later period); see also In re Foreign Exch. Benchmark
Rates Antitrust Litig., 13 Civ. 7789 (LGS), 2016 WL 5108131, at *16-17 (dismissing claims
that a conspiracy existed before 2007, since they were based only on communications
dating back to 2004 that the plaintiffs did not even suggest “reflected unlawful conduct”);
In re Lithium Ion Batteries, 2014 WL 309192, at *12 (dismissing as implausible claims that
a conspiracy began in 2000, which was “reflected in the dearth of meetings alleged in the
complaint in the years 2000 and 2001”).
But taking as true plaintiff’s allegations regarding the two acquisitions in 2011 and
2012 that further consolidated the containerboard industry, as well as two, lockstep price
increases in 2012 and 2013, it is at least plausible that an illegal conspiracy continued into
2013, particularly given plaintiff’s allegations with respect to the nature of the
containerboard industry and its susceptibility to price-fixing agreements, which plaintiff
asserts only intensified between 2011 and 2013. See In re Lithium Ion Batteries, 2014 WL
6

309192, at *12 (refusing to limit conspiracy period of 2009-2011 supported by only
“sparse” allegations, namely “a single bid-rigging incident involving two defendants in
2009, and another in 2010”); cf. In re Refrigerant Compressors Antitrust Litig., 795 F. Supp.
2d 647, 660-61 (E.D. Mich. 2011) (rejecting the defendants’ argument, “rely[ing] heavily”
on In re Urethane, that the alleged conspiracy period should be trimmed at the pleadings
stage).
Further tipping the scale of plausibility is the inference that despite the filing of
Kleen Products in 2010, defendants maintained their illegal agreement through arguably
more covert means than trade association meetings, which the court cannot rule out as
unreasonable at this stage of the litigation, even though the ultimate proof of that fact
appears improbable. See Twombly, 550 U.S. at 556 (“[O]f course, a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.”) (internal quotation marks omitted).
Indeed, the court maintains a healthy skepticism about the continuation of a conspiracy
post-2010 for reasons already discussed, which will have to be overcome on summary
judgment. Defendants’ motions to dismiss plaintiff’s claim of an ongoing conspiracy in
violation of § 1 of the Sherman Act must be denied.

7

II.

Wis. Stat. § 133.14
As noted, certain defendants also move to dismiss plaintiff’s state law claim to

recover payments made on contracts invalid under Wisconsin antitrust law pursuant to
Wis. Stat. § 133.14.4 (2d Am. Compl. (dkt. #95) ¶ 215.) In full, that statute provides
that:
All contracts or agreements made by any person while a
member of any combination or conspiracy prohibited by
s. 133.03, and which contract or agreement is founded upon,
is the result of, grows out of or is connected with any violation
of such section, either directly or indirectly, shall be void and
no recovery thereon or benefit therefrom may be had by or for
such person. Any payment made upon, under or pursuant to
such contract or agreement to or for the benefit of any person
may be recovered from any person who received or benefited
from such payment in an action by the party making any such
payment or the heirs, personal representative or assigns of the
party.
Wis. Stat. § 133.14.
A. Privity
Defendants first argue that plaintiff’s purported claims under the state’s little
Sherman Act fail because plaintiff does not sufficiently plead that it entered into invalid
contracts with them. Among other cases, defendants cite In re Western States Wholesale
Natural Gas Antitrust Litigation, 715 F.3d 716 (9th Cir. 2013), which held that “the plain
text of [Wis. Stat. § 133.14] . . . does not provide for recovery for indirect purchasers or

Specifically, defendants Temple-Inland Inc., TIN Inc., Cascades USA, Inc., Cascades Canada ULC
and Weyerhaeuser Company moved to dismiss plaintiff’s § 133.14 claim, and defendants Packaging
Corporation of America and WestRock CP, LLC joined in the portion of that motion challenging
whether plaintiff alleges sufficient Wisconsin contacts as discussed below.
4

8

other non-parties to [a] contract.” Id. at 747; see also Rozema v. Marshfield Clinic, Nos. 96C-592-C, 96-C-916-C, 96-C-730-C, 1997 WL 416292, at *15 (W.D. Wis. Mar. 10, 1997)
(“To the extent that there is no contract between a specific plaintiff and a specific
defendant, § 133.14 will not apply.”). In so holding in Western States, the Ninth Circuit
noted in particular that “[t]he second sentence of Section 133.14 permits the party making
a payment ‘upon, under or pursuant to such contract’ to recover those payments.” 715
F.3d at 746.
Plaintiff insists that § 133.14 is not so limited, arguing that the statute provides for
“co-conspirator liability.” (Pl.’s Opp’n Br. (dkt. #130) at 11.) According to plaintiff, the
Ninth Circuit and the district court decision it affirmed, In re Western States Wholesale
Natural Gas Antitrust Litigation, 619 F. Supp. 2d 1062 (D. Nev. 2008), got it wrong by
holding the opposite, having failed to appreciate that the Wisconsin Legislature’s general
pronouncement of intent in Wis. Stat. § 133.01 requires Chapter 133 to “be interpreted
in a manner which gives the most liberal construction to achieve the aim of competition.”
Plaintiff criticizes the Western States district court specifically for failing to cite either of
two Wisconsin Supreme Court cases endorsing the broadened scope of Chapter 133 after
it was amended in 1980. Meyers v. Bayer AG, 2007 WI 99, 303 Wis. 2d 295, 735 N.W.2d
448, and Olstad v. Microsoft Corp., 2005 WI 121, 284 Wis. 2d 224, 700 N.W.2d. As
defendants point out, however, the relevance of the holdings of those cases to plaintiff’s
co-conspirator liability argument is limited, as neither even consider the remedies set forth
in § 133.14.

9

Plaintiff further argues that by adding language permitting a plaintiff to recover
contract payments from “any person who received or benefited from such payment” in the
1980 amendments to § 133.14, the Wisconsin legislature intended to extend “coconspirator liability” to that provision.5 And, as plaintiff notes, even the Western States
district court “conclude[d] that [while] the principles of joint liability for co-conspirators
does not automatically attach to a § 133.14 claim, a co-conspirator may receive or benefit
from a particular payment even though not a party to the contract and thus be a proper
defendant to such claim under certain factual circumstances.” 619 F. Supp. 2d at 1071.
As the defendant correctly points out in reply, however, the Western States court
provided examples of such circumstances, including a corporation directing that a contract
payment be made to “its subsidiary, agent, or some other third party on its behalf,” or an
agreement among co-conspirators to “share ill-gotten profits or pool and divide contract
payments,” none of which appear to apply remotely to the facts alleged here. In particular,

As cited by the district court in Western States, the pre-1980 amendments version of the illegal
contracts and recovery provision provided that:
5

All contracts or agreements made by any person while a member of
any combination, conspiracy, trust or pool prohibited by s. 133.01
or 133.21, and which contract or agreement is founded upon, or is
the result of, or grows out of, or is connected with, any violation of
said sections, either directly or indirectly, shall be void and no
recovery thereon or benefit therefrom shall be had by or for any such
person. Any payments made upon, under or pursuant to such
contract or agreement to or for the benefit of such person, may be
recovered in an action by the party making any such payment, his
heirs, personal representatives or assigns; provided that suit for such
recovery is brought within 6 years after the making of said contract
or agreement.
619 F. Supp. 2d at 1070 (quoting Wis. Stat. § 133.23 (1976)).

10

plaintiff makes no effort to propose how damages could be assessed against any coconspirators who benefited from contract payments made to other co-conspirators in only
the most abstract sense. Id. at 1071. Although plaintiff is correct that courts are to
interpret Chapter 133 broadly, neither the plain language of § 133.14, nor the cases
interpreting it, support the generalized theory of “co-conspirator liability” for which it
advocates.6

This court, therefore, agrees with Western States district court reasoning

suggesting that a co-conspirator “benefitted from the conspiracy generally” is not the same
as demonstrating that a co-conspirator “benefitted from ‘such payment’ under any void
contracts.” Id.
As defendants Cascades USA, Inc., and Cascades Canada ULC (collectively
“Cascades”), the only basis for a § 133.14 claim that plaintiff can muster in the second
amended complaint is their inclusion in the allegation that “all Defendants benefitted from
each payment made by Ashley under the contracts or agreements . . . because each payment
made under the contracts or agreements between Ashley and certain Defendants furthered
the combination or conspiracy in which all Defendants participated and benefitted.” (Pl.’s
Opp’n Br. (dkt. #130) at 4 (emphasis and alteration in original) (quoting 2d Am. Compl.
(dkt. #95) ¶ 27).) Since plaintiff “agrees that the [second amended complaint] does not

6

There is a possibility that joint and several liability could provide the solution. See Paper Sys. Inc.
v. Nippon Paper Indus. Co., 281 F.3d 629, 632 (7th Cir. 2002); Segall v. Hurwitz, 114 Wis. 2d 471,
339 N.W.2d 333 (Wis. App. 1983). But see City of Madison v. Hyland, Hall & Co., 73 Wis. 2d 364,
243 N.W.2d 422 (Wis. 1976) (defendants may be held jointly liable for treble damages based on
a bid-fixing conspiracy claim, but illegal contracts claim “would only concern the individual liability
of particular defendants to particular plaintiffs”). Of course, plaintiffs are not left without a remedy
against co-conspirators with whom they formed no illegal contracts under Wisconsin law, as
§ 133.18 provides for recovery of treble damages for antitrust violations, but plaintiff does not plead
a claim for damages under that provision.

11

allege any contracts, agreements, or purchases of Containerboard Products by Ashley from
Cascades,” therefore, plaintiff has alleged no viable § 133.14 claim against them. (Pl.’s
Opp’n Br. (dkt. #130) at 8 n.2.)
The court disagrees, however, that plaintiff has failed to adequately plead a § 133.14
claim against defendants Temple-Inland Inc., TIN Inc. and Weyerhaeuser Company.
Indeed, plaintiff alleges specifically that it purchased containerboard products from each
of the defendants. (2d Am. Compl. (dkt. #95) ¶ 27.) While defendants cite Bissessur v.
Indiana University Board of Trustees, 581 F.3d 599, 602-03 (7th Cir. 2009), for the
proposition that a plaintiff must do more than simply plead that a “contract existed,” that
case is wholly unhelpful to defendants here. In contrast to Bissessur, in which the plaintiff,
a student, pleaded no facts to put the defendants on notice of the basis of his due process
claim that Indiana University breached an implied contract for “a continuing education,”
id. at 603, plaintiff’s complaint here gave defendants ample notice of the basis for its
§ 133.14 claims: Ashley Furniture purchased containerboard products from those
defendants under contracts or agreements that are invalid because of a per se illegal antitrust
conspiracy among themselves and other competitors, entitling it to recover payments made
pursuant to the contracts’ terms under Wisconsin law. Cf id. (“Our system operates on a
notice pleading standard; Twombly and its progeny do not change this fact.”). Hopefully,
none of the defendants will waste the court’s time in the future with such a dubious
application of a legal proposition plucked from an unrelated case.

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B. Wisconsin Contacts
This then leaves a lone question to be decided: whether plaintiff’s § 133.14 claim
against these defendants, along with defendants Packaging Corporation of America and
WestRock CP, LLC, must be dismissed for failure to allege Wisconsin-specific contacts. In
Olstad, the Wisconsin Supreme Court held that:
Wisconsin's antitrust statutes may reach interstate commerce
if (1) actionable conduct, such as the formation of a
combination or conspiracy, occurred within this state, even if
its effects are felt primarily outside Wisconsin; or (2) the
conduct complained of “substantially affects” the people of
Wisconsin and has impacts in this state, even if the illegal
activity resulting in those impacts occurred predominantly or
exclusively outside this state.
2005 WI 121 at ¶ 1. Defendants argue that plaintiff’s allegations satisfy neither of these
prongs because plaintiff does not plead that any of the conspiracy-forming activity took
place in Wisconsin, nor that any particular degree of defendants’ conduct affected
Wisconsinites.
In response to the defendants’ argument as to the first prong of the Olstad test,
plaintiff points to allegations in its second amended complaint that defendant Packaging
Corporation of America “furthered the conspiracy in 2005 when it ‘idled 65,000 tons per
year of production capacity by taking off-line one of its three paper machines at its
containerboard plant in Tomahawk, Wisconsin,’” as well as its allegations that “each
defendant sold Containerboard Products at supra-competitive prices into Wisconsin.”
(Pl.’s Opp’n Br. (dkt. #130) at 13-14 (citing 2d Am. Compl. (dkt. #95) ¶¶ 16-27, 79).)
Whether an example of one defendant idling machines in Wisconsin, albeit at seemingly
large volume in furtherance of a conspiracy formed and largely conducted by all defendants
13

outside the state is sufficient to satisfy the “actionable conduct,” requirement under Olstad
is at least open to argument. In contrast, considering the volume of sale of goods in
Wisconsin at supra-competitive prices as “actionable conduct” under the first test would
appear to swallow the second, which measures the impact of the illegal conduct on
Wisconsin. The court need not resolve these questions under Olstad’s first test, however,
since the plaintiff has adequately alleged that defendants’ conduct “substantially affects”
this state.
In particular, plaintiff points to its allegations that Ashley Furniture, as a company
with its principal place of business in Arcadia, Wisconsin, purchased containerboard
products at supra-competitive prices due to defendants’ per se illegal, horizontal conspiracy
for almost a decade. Even this and likely layoffs at the Tomahawk plant were insufficient,
plaintiff alleges quite plausibly that the containerboard industry involves sales of everyday
products, such as corrugated cardboard boxes, and enjoys sales “in the tens of billions of
dollars.” (Id. at 14-15 (citing 2d Am. Compl. (dkt. #95) ¶¶ 15-27, 29-31, 79).) Under
these facts, plaintiff rightly relies on the Wisconsin Supreme Court’s holding in Meyers that
“[a]n allegation that a group of pharmaceutical companies conspired to maintain monopoly
prices on a best-selling prescription drug purchased by thousands of Wisconsin residents
over several years meets the ‘substantially [a]ffects’ test set forth in Olstad.” 2007 WI 99,
at ¶ 57 (citation omitted).
In contrast, defendants argue that the allegations here are closer to those in
Emergency One, Inc. v. Waterous Co., 23 F. Supp. 2d 959 (E.D. Wis. 1998), which is one of
the cases that the Meyers court distinguished in reaching its holding. In Emergency One, the
14

district court granted a motion to dismiss the plaintiff’s Wisconsin law antitrust claims for
lack of “significant and adverse effects on economic competition in Wisconsin.”7 Id. at
971. In reaching that conclusion, the district court explained that plaintiff, a Florida-based
manufacturer of fire trucks, had only alleged “substantial adverse effects” on itself due to
defendants’ alleged conspiracy to inflate prices of water pumps, rather than to commerce
in Wisconsin, having failed to, among other things, “indicate how many fire trucks [of the
3,500 to 4,000 trucks it claimed were purchased by fire departments each year] are sold in
Wisconsin per year, how many by plaintiff, or how many by plaintiff’s competitors.” Id.
Defendants again cite In re Urethane for essentially the same proposition. In that
case, a Kansas district court likened the facts to Emergency One, rather than those in Meyers.
663 F. Supp. 2d at 1084. As here, the plaintiffs in that case had opted out of a certified
class action, then asserted claims under the laws of several different states, including
Wisconsin, as well as European law, alleging a price-fixing conspiracy, although that case
concerned “urethane chemical products.” Id. at 1069-70. Applying Wisconsin law, the
district court found inadequate allegations that: (1) the plaintiffs were located or had a
facility in Wisconsin and purchased the products from the defendants for use in this state,
though not stating whether they bought the products here; and (2) defendants shipped
“millions of dollars” of products to the plaintiffs and “other consumers” in Wisconsin. Id.
at 1084. Although granting them leave to amend, the district court dismissed the plaintiffs’
Wisconsin law claims, finding the “factual allegations only really show substantial effects

Though decided before Olstad, the Wisconsin Supreme Court acknowledged in Meyers that the
“adverse effects” standard applied in Emergency One was “in essence, the test [it] adopted in Olstad.”
2007 WI 99 at ¶ 37.
7

15

on plaintiffs themselves,” while revealing little “that could suggest the scope of the impact
in Wisconsin as a whole.” Id. at 1084-85.
Contrary to defendants’ assertions, the court finds the facts alleged here as to effects
on the people of Wisconsin to exceed in quality and quantity those in Emergency One and
In re Urethane, as well as to adhere much more closely to Meyers. For example, plaintiff
Ashley plausibly alleges that defendants’ agreement to sell containerboard products at
supra-competitive prices had a wide impact on Wisconsin, given its use in such products
as corrugated cardboard boxes. In light of the alleged billions in sale and the ubiquitous
use of container board by manufacturers, retailers and consumers each year, this court has
little difficulty inferring that plaintiff’s allegations satisfy the Olstad “substantially affects”
test. Admittedly, plaintiff’s second amended complaint lacks additional details that would
be helpful to frame the likely scope of overcharges for containerboard products in
Wisconsin, but “plaintiffs need not allege that the challenged conduct disproportionately
affected Wisconsin, only that the challenged conduct substantially affected the people of
Wisconsin and had impacts in this state.”8 2007 WI 99 at ¶ 51; see also id. at ¶¶ 49-50
(“This court held in [State v. Allied Chemical & Dye Corp., 9 Wis. 2d 290, 101 N.W.2d 133
(Wis. 1960),] that price-fixing is a monopolistic practice that, by its very nature,
substantially affects the public.”). Accordingly, the court will deny defendants’ motion to

At the very least, the court is satisfied that denying defendants’ motion to dismiss under these
circumstances presents little risk that endorsing “lesser standards would jeopardize the action,
undermine the validity of [Wisconsin’s] antitrust statute, and create the spectacle of Lilliputian
harassment in Wisconsin courts.” Olstad, 2005 WI 121 at ¶ 85.
8

16

dismiss plaintiff’s antitrust conspiracy claims under Wis. Stat. § 133.14 claims as
inadequately pled under the Olstad test.
III.

Joint Motion to Stay
This then brings us to the parties’ recent, joint motion to stay further proceedings

in this case “pending the outcome of an appeal captioned as Kleen Products LLC, et al. v.
International Paper, et al., No. 17-2808 (7th Cir.), No. 1:10-cv-05711 (N.D. Ill.).” (Dkt.
#144 at 1.) Although the plaintiff here alleges a conspiracy that lasted longer than that
now under consideration by the Seventh Circuit in Kleen Products and only two of the
defendants here remain in that case, there can be little doubt any opinion issued by the
court of appeals will be invaluable to the parties, as well as the court, given the core conduct
during the most robust period of the alleged conspiracy here is also at issue in that case.
Unlike the parties, however, the court is unconvinced this stay need extend through any
possible petition for certiorari review to the United States Supreme Court, which is a
decision that can await another day. Accordingly, the court will grant the joint motion as
set forth below.

See Clinton v. Jones, 520 U.S. 681, 706 (1997) (courts have “broad

discretion to stay proceedings as an incident to its power to control its own docket”).

ORDER
IT IS ORDERED that:
1) defendant Georgia-Pacific, LLC’s partial motion to dismiss or for judgment on
the pleadings (dkt. #109) is DENIED;

17

2) defendants Temple-Inland Inc., TIN Inc., Cascades USA, Inc., Cascades Canada
ULC and Weyerhaeuser Company’s partial motion to dismiss (dkt. #114) is
GRANTED IN PART and DENIED IN PART consistent with this opinion;
3) defendant International Paper Company’s partial motion to dismiss (dkt. #116)
is DENIED;
4) defendant WestRock CP, LLC’s partial motion to dismiss (dkt. #117) is
DENIED;
5) defendant Packaging Corporation of America’s partial motion to dismiss (dkt.
#121) is DENIED; and
6) the parties’ joint motion to stay proceedings (dkt. #144) is GRANTED IN
PART as follows: (a) the instant proceeding are STAYED until the Seventh
Circuit’s ruling on the Kleen Products appeal; (b) the clerk’s office is directed to
administratively close this case until that time; and (c) the parties shall promptly
notice this court of any substantive action by the Seventh Circuit in Kleen
Products (as opposed to clerical, scheduling or other procedural matters).
Entered this 26th day of September, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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