1 The named plaintiffs in the complaint are: The Plumbing

Source, Inc.; The Neenan Company; Trumbull Industries, Inc.;

Republic Plumbing Supply Company; Thames Valley Winnelson

Company; and Security Supply Company. The plaintiffs are

bringing this action on behalf of a class of all individuals or

entities who purchased bath and kitchen fixtures directly from

one of the defendants or their co-conspirators in the United

States from January 1, 2001 through December 31, 2004. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

In re BATH and KITCHEN FIXTURES :

ANTITRUST LITIGATION : MASTER DOCKET NO.

___________________________________: 05-cv-00510 MAM

:

THIS DOCUMENT RELATES TO: :

ALL ACTIONS :

___________________________________:

MEMORANDUM AND ORDER

McLaughlin, J. July 19, 2006

The plaintiffs1 have alleged that the defendants,

manufacturers and/or distributors of bath and kitchen fixtures,

entered into an agreement to fix the price of bath and kitchen

fixtures sold in the United States in violation of Section 1 of

the Sherman Act. 

All four of the defendants have moved to dismiss the

consolidated and amended complaint. Defendants OEP, Inc., f/k/a

Eljer Plumbingware, Inc. (“Eljer”) and Kohler Co. (“Kohler”)

filed one motion. Defendants American Standard Companies, Inc.

(“American Standard”) and Masco Corp. (“Masco”) filed another. 

The Court will grant both motions, but will give the plaintiffs

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 1 of 22
2 When considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a court accepts all facts and

allegations listed in the complaint as true and construes them in

the light most favorable to the plaintiff. H.J., Inc. v. Nw.

Bell Tel. Co., 492 U.S. 229, 249 (1989); Rocks v. City of

Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).

3 The docket also incorrectly states that the consolidated

and amended complaint was filed against Grohe America.

2

thirty (30) days to amend their complaint.

I. Factual Background2

In early 2005, seventeen separate complaints were filed

against different combinations of defendants including American

Standard and Masco. On March 29, 2005, the Court ordered that

all the complaints be consolidated. On June 7, 2005, the

plaintiffs filed a consolidated and amended complaint against

American Standard and Masco, as well as Eljer and Kohler.3 Other

entities that were named as defendants in some of the individual

cases were dropped.

The plaintiffs’ consolidated and amended complaint

alleges that the defendants conspired to fix the prices of bath

and kitchen fixtures from at least January 1, 2001 through

December 31, 2004 in violation of Section 1 of the Sherman Act. 

The plaintiffs claim that they and other class members paid

artificially high prices for bath and kitchen fixtures as a

result of the defendants’ unlawful conduct. Bath and kitchen

fixtures are defined broadly as “products used to receive water

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 2 of 22
3

at the point of use (e.g., bathtubs, lavatories, sinks, basins,

washtubs, washtrays, toilets/tanks and urinals) and the related

trimmings and components.”

Although the complaint makes allegations of a large

scale price fixing conspiracy, the sum total of the plaintiffs’

allegations with respect to the critical element of concerted

action consist of claims that the defendants: (1) communicated

with each other to discuss prices of bath and kitchen fixtures;

(2) agreed to charge prices at specific levels and refused to

sell bath and kitchen fixtures below the agreed upon levels; (3)

issued price quotations and price announcements; and (4) sold

bath and kitchen fixtures throughout the United States at agreed

upon prices. 

The plaintiffs claim that the conspiracy was not

discovered until November of 2004, due to the defendants’

fraudulent concealment of their scheme. It is not clear how the

plaintiffs discovered this alleged conspiracy, though it appears

that the plaintiffs somehow became alerted to a conspiracy to fix

prices in the United States when American Standard and Masco

disclosed that they were being investigated for possible

anticompetitive activities in Europe in November of 2004. 

This case had a somewhat tortured history prior to the

filing of the consolidated and amended complaint. The original

complaints differed significantly on the identity of the

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 3 of 22
4

defendants and the products that were allegedly the subject of

the conspiracy to fix prices. Although all of the initial

complaints identified American Standard and Masco as defendants,

none of them named either Eljer or Kohler. Furthermore, although

a few of the initial complaints alleged a conspiracy to fix the

prices of bath and kitchen fixtures, most alleged either a

conspiracy to fix the prices of bathroom fittings or a conspiracy

to fix the prices of both fittings and fixtures.

The difference between fittings and fixtures is not

mere semantics. The parties do not dispute that generally,

fittings are products such as faucets and showerheads that

deliver water, while fixtures are products such as sinks and

bathtubs that receive water. Additionally, the consolidated and

amended complaint references two different governmental

investigations, only one of which involves fixtures. One

reference concerns a grand jury subpoena received by defendant

American Standard from the United States Department of Justice

that requested information related to the sale of bathroom

fittings. The other concerned an investigation by the European

Commission that involved fittings and fixtures. Although the

consolidated and amended complaint alleges that both American

Standard and Masco (but not Eljer or Kohler) were contacted as

part of the European investigation, that investigation only

involved the distribution of fittings and fixtures in certain

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 4 of 22
5

European countries. The consolidated and amended complaint only

makes allegations of price fixing in the United States. 

Following the filing of the consolidated and amended

complaint, Eljer and Kohler filed a motion to dismiss on

September 12, 2005. On September 22, 2005, American Standard and

Masco did the same. Both motions to dismiss argue that: (1) the

complaint does not state an antitrust conspiracy claim; (2) the

complaint does not adequately allege that the individual

defendants joined the conspiracy; (3) the complaint fails to

provide fair notice of the products involved in the conspiracy;

and (4) the complaint does not adequately allege fraudulent

concealment.

II. Legal Analysis

Section 1 of the Sherman Act provides that “[e]very

contract, combination in the form of trust or otherwise, or

conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is hereby declared to be

illegal.” 15 U.S.C. § 1. Courts have long recognized that

Section 1 only prohibits unreasonable restraints of trade. Bus.

Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988). 

To establish a Section 1 violation, a plaintiff must

prove: “(1) concerted action by the defendants; (2) that produced

anti-competitive effects within the relevant product and

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 5 of 22
6

geographic markets; (3) that the concerted action was illegal;

and (4) that the plaintiff was injured as a proximate result of

the concerted action.” Queen City Pizza, Inc. v. Domino’s Pizza,

Inc., 124 F.3d 430, 442 (3d Cir. 1997); Tunis Bros. Co., Inc. v.

Ford Motor Co., 952 F.2d 715, 722 (3d Cir. 1991). When a

plaintiff demonstrates that a horizontal conspiracy to fix prices

exists, which constitutes a per se violation of the Sherman Act,

a plaintiff need only prove that the conspiracy existed and that

it was the proximate cause of the plaintiff’s injuries. In re

Flat Glass Antitrust Litig., 385 F.3d 350, 356 (3d Cir. 2004).

It is undisputed that the plaintiffs’ complaint is

subject to the minimal requirements of Federal Rule of Civil

Procedure 8(a)(2) and is not subject to any heightened pleading

standard. See Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); Lum

v. Bank of Am., 361 F.3d 217, 228 (3d Cir. 2004). 

Rule 8(a)(2) requires “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). Interpreting this rule, the United States

Supreme Court has held that a complaint must “‘give the defendant

fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512

(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus,

the Supreme Court has set up a two-step analysis under Rule

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 6 of 22
7

8(a)(2). First, a complaint must give the defendants notice of

what the claim is and second, the complaint must state the

grounds upon which that claim rests.

The defendants have conceded that the consolidated and

amended complaint states a claim and indeed it is clear that the

plaintiffs allege a conspiracy to fix prices in violation of

Section 1 of the Sherman Act. At issue is whether the plaintiffs

have done enough to state the grounds upon which their claim

rests.

The question of what a plaintiff must do to plead the

grounds upon which a claim rests was recently addressed by the

United States Court of Appeals for the Third Circuit in In re

Tower Air, 416 F.3d 229 (3d. Cir. 2005). In that case, the Court

of Appeals held that even at the pleading stage, “a defendant

deserves fair notice of the general factual background for the

plaintiff’s claims.” In re Tower Air, 416 F.3d at 237. However,

a complaint should not be dismissed for a lack of detailed facts. 

Id.

In the antitrust context and in accordance with the

general standard of Rule 8(a)(2), a general allegation of

conspiracy, without more, is not sufficient. Although detail is

not necessary, a plaintiff “must plead the facts constituting the

conspiracy, its object and accomplishment.” Black & Yates, Inc.

v. Mahogany Ass’n, Inc., 129 F.2d 227, 231 (3d Cir. 1941).

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 7 of 22
8

Here, although it is undisputed that the plaintiffs’

complaint states a claim in that it alleges that the defendants

conspired to fix the prices of bath and kitchen fixtures, the

complaint is devoid of even a minimal factual background that

gives the defendants fair notice of the grounds upon which that

claim is based. 

The plaintiffs devote only two paragraphs of the

consolidated and amended complaint to describing the antitrust

violations that the defendants allegedly committed. Paragraph 43

states simply that the defendants conspired to fix prices for

bath and kitchen fixtures. Paragraph 44 purports to allege

anticompetitive activities engaged in by the defendants, but adds

little if any factual background to the general assertion that

the defendants conspired to fix prices.

Specifically, paragraph 44 of the complaint alleges

that the defendants communicated with each other about the price

of bath and kitchen fixtures, agreed to charge specific prices,

issued price announcements in accordance with these agreements

and sold bath and kitchen fixtures at the agreed upon prices. 

Thus, in total, the plaintiff alleges that the defendants agreed

to fix the prices of bath and kitchen fixtures, engaged in some

unspecified communications and quoted prices and sold products at

the agreed upon levels.

Should this case go forward with the consolidated and

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 8 of 22
9

amended complaint in its present form, the defendants would be

forced to defend against a large scale class action with no

notice of what they allegedly did wrong beyond the general claim

that they agreed to fix the prices of a large amount of products

and carried out that agreement. The Court concludes that such

allegations do not meet the requirements of Rule 8(a)(2).

In Black & Yates, Inc. v. Mahogany Association, Inc.,

129 F.2d 227 (3d Cir. 1941), the United States Court of Appeals

for the Third Circuit considered whether a complaint adequately

pled a Sherman Act conspiracy claim. According to the District

Court, the complaint alleged only that the defendant and others

devised a plan to reduce competition and detailed some unfair

statements that were made that related to the plaintiff’s

business. The Court of Appeals upheld the District Court’s

dismissal of the antitrust claim noting that the plaintiff had

not pled the date of the conspiracy, its attendant circumstances

or where, when or by whom the statements at issue were made. 

Black & Yates, 129 F.2d at 231-32; Black & Yates Inc. v. Mahogany

Ass’n, Inc., 24 F.Supp 450, 456 (D. Del. 1940).

Later, in Garshman v. Universal Resources Holding,

Inc., 824 F.2d 223 (3d Cir. 1987), the United States Court of

Appeals for the Third Circuit reaffirmed that overly vague

allegations of antitrust violations will not survive a motion to

dismiss. With respect to the Section 1 claim at issue, all that

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 9 of 22
10

was alleged was that one of the defendants, its subsidiary and

other unnamed entities engaged in concerted action to achieve

anticompetitive effects. The Court of Appeals cited Black &

Yates and held that “[t]he allegation of unspecified contracts

with unnamed other entities to achieve unidentified

anticompetitive effects does not meet the minimum standards for

pleading a conspiracy in violation of the Sherman Act.” 

Garshman, 824 F.2d at 230.

The consolidated and amended complaint at issue here

does provide a little bit more detail than the complaints that

the Court of Appeals disapproved of in Black & Yates and

Garshman. However, it is comparable to a complaint which the

United States Court of Appeals for the Second Circuit found

inadequate in Klebanow v. New York Produce Exchange, 344 F.2d 294

(2d Cir. 1965). The complaint at issue in Klebanow alleged that

the defendants, certain exchanges and a bank, conspired to fix

the price of cottonseed oil. The Court of Appeals for the Second

Circuit concluded that the complaint “furnishes not the slightest

clue as to what conduct by the defendants is claimed to

constitute an illegal contract combination and conspiracy” and

held that “[a] mere allegation that defendants violated the

antitrust laws as to a particular plaintiff and commodity no more

complies with Rule 8 than an allegation which says only that a

defendant made an undescribed contract with the plaintiff and

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 10 of 22
11

breached it.” Klebanow, 344 F.2d at 296, 299 (internal

quotations omitted). Although Klebanow was decided over forty

years ago, it is routinely cited by courts considering whether

dismissal of an antitrust claim is appropriate. See, e.g.,

Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988);

Twombly v. Bell Atl. Corp., 425 F.3d 99, 109 (2d Cir. 2005);

Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213,

221 (4th Cir. 1994). 

The Court finds the reasoning in Klebanow both

persuasive and consistent with the Third Circuit Court of

Appeals’ precedent in Black & Yates and Garshman. The Klebanow

Court stated that although there was no special pleading standard

required in antitrust cases, merely pleading “statutory words”

does not satisfy Rule 8(a)(2). Klebanow, 344 F.2d at 299. That

is consistent with the Third Circuit Court of Appeals’ holdings

that simply pleading a “general allegation of conspiracy” (Black

& Yates) or that the defendants engaged in concerted action to

achieve anticompetitive effects (Garshman) are insufficient

allegations to survive a motion to dismiss.

The plaintiffs rely heavily on Fuentes v. South Hills

Cardiology, 946 F.2d 196 (3d Cir. 1991) to argue that the

consolidated and amended complaint meets the requirements of Rule

8(a)(2). The complaint at issue in Fuentes made allegations of a

group boycott in violation of Section 1 of the Sherman Act. 

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 11 of 22
12

Specifically, the plaintiff in Fuentes alleged that over a

specified one-week time period, four doctors who competed with

the plaintiff requested that a hospital deny the plaintiff staff

privileges and that in direct response to this request, the

hospital did exclude the plaintiff from practicing there. 

Fuentes, 946 F.2d at 201.

The United States Court of Appeals for the Third

Circuit concluded that the plaintiff’s allegations were

sufficient to allege concerted action. However, in addition to

the fact that the complaint in Fuentes alleged a group boycott as

opposed to price fixing, Fuentes is also distinguishable based on

the level of detail in the complaint. In Fuentes, with respect

to the allegations of concerted action, the complaint was

reasonably specific as to how the alleged agreement was formed. 

The Fuentes complaint alleged that the defendant doctors made a

specified request to terminate the plaintiff’s staff privileges

to the defendant hospital which the hospital accepted. The

Fuentes complaint also specified a narrow range of dates when the

agreement was allegedly formed. Id. Those allegations stand in

contrast to the ones made in this case which allege only that the

defendants “agreed,” “conspired” and “communicated” without

providing any specifics about how the agreement or conspiracy was

formed. 

Furthermore, the consolidated and amended complaint,

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 12 of 22
13

except for alleging that the agreement to fix prices was carried

out over an approximately four year time period, makes no claims

as to when the defendants actually formed the conspiracy. The

Court of Appeals stated in Fuentes that a plaintiff need not

identify meetings or phone calls at which the conspiracy was

carried out. Id. at 202. However, the Fuentes Court never

stated that a plaintiff in an antitrust case is relieved of Rule

8(a)(2)’s requirement, articulated by the Court of Appeals in

Black & Yates and Garshman, that an antitrust plaintiff must

provide the defendants some minimal factual background regarding

how any alleged conspiracy was formed.

The plaintiffs rely less on the specific allegations

that were made by the plaintiff in Fuentes and more on a phrase

in the Court of Appeals’ decision which stated that “[the

plaintiff’s] allegations identifying the conspiracy’s

participants, purpose and motive are sufficient to survive a

motion to dismiss.” Fuentes, 946 F.2d at 202. Although, when

considering any allegation that certain defendants conspired to

fix prices, it is possible to identify or infer the participants

(the defendants), the purpose (to fix prices) and the motive (to

make money), by the plain language of the Fuentes decision, the

Court of Appeals did not frame the “participants, purpose and

motive” language as a general principle, but stated only that

“his [referring to the plaintiff] allegations identifying the

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 13 of 22
14

conspiracy’s participants, purpose and motive are sufficient to

survive a motion to dismiss.” Id. Importantly, the Fuentes

Court reaffirmed the holding from Black & Yates that “[a] general

allegation of conspiracy without a statement of the facts is an

allegation of a legal conclusion and insufficient of itself to

constitute a cause of action.” Id. at 201-02 (quoting Black &

Yates, 129 F.2d at 231).

There have been some district court cases which appear

to apply Fuentes as a general principle in considering the

sufficiency of a complaint which makes Section 1 conspiracy

allegations. However, like the complaint in Fuentes itself, the

complaints at issue in these cases tend to allege at least a

minimal factual background in support of the conspiracy

allegations at issue.

For example, in one of those cases, In re Hydrogen

Peroxide Antitrust Litigation, No. 05-666, 2005 U.S. Dist. LEXIS

31590 (E.D. Pa. Nov. 22, 2005), the complaint at issue alleged a

conspiracy among the defendants to fix the price of hydrogen

peroxide and additionally, the plaintiffs alleged two specific

instances of the defendants raising prices almost simultaneously

following industry meetings. In re Hydrogen Peroxide Antitrust

Litig., 2005 U.S. Dist. LEXIS 31590 at *9-10.

Similarly, another such case, In re Linerboard

Antitrust Litigation, Nos. 98-5055, 99-1314, 2000 U.S. Dist.

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 14 of 22
4 The District Court’s decision in Shaw was affirmed on

appeal. However, the Court of Appeals’ decision only focused on

the applicability of the Sports Broadcasting Act and did not

consider whether the plaintiffs’ conspiracy claims satisfied Rule

8(a)(2) or the proper application of Fuentes’ “participants,

purpose and motive” language. Shaw v. Dallas Cowboys Football

Club, LTD., 172 F.3d 299 (3d Cir. 1999).

Additionally, I issued a recent decision in U.S.

Horticultural Supply, Inc. v. Scotts Co., No. 04-5182, 2006 U.S.

Dist. LEXIS 36015 (E.D. Pa. June 1, 2006) which denied a motion

to dismiss a Section 1 claim and cited Fuentes. However, the

Court did not apply Fuentes as a general principle. The Court

noted that the complaint at issue in U.S. Horticultural Supply,

in addition to identifying the participants, purpose and motive

of the conspiracy, went into some detail about how the alleged

co-conspirators accomplished and carried out their agreement. 

U.S. Horticultrual Supply, 2006 U.S. Dist. LEXIS 36015 at *7-9.

15

LEXIS 14433 (E.D. Pa. Oct. 5, 2000), also involved a Section 1

claim where the plaintiffs provided some background for their

price fixing conspiracy allegations by referencing coordinated

price increases by the defendants. In re Linerboard Antitrust

Litig., 2000 U.S. Dist. LEXIS 14433 at *19-20.

Finally, Shaw v. Dallas Cowboys Football Club, LTD.,

No. 97-5184, 1998 U.S. Dist. LEXIS 9896 (E.D. Pa. June 19, 1998)

(aff’d 172 F.3d 299 (3d Cir. 1999)) also applied the

“participants, purpose and motive” language from Fuentes. 

However, the complaint in Shaw, which alleged that there was an

agreement among the National Football League and its member clubs

to restrict non-network broadcasts of games, went into some

detail about how the defendants carried out their alleged

agreement. Shaw, 1998 U.S. Dist. LEXIS 9896 at *1-3, 13-14.4

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 15 of 22
5 Because the Court concludes that the consolidated and

amended complaint does not satisfy Rule 8(a)(2) because it fails

to state the grounds upon which the allegations of the price

fixing conspiracy are based, the Court will not reach the issue

of whether the complaint fails to satisfy the applicable pleading

requirements for any other reason. However, the Court will

discuss other aspects of the complaint and the procedural history

of this case so that the plaintiffs’ conspiracy allegations can

be viewed in the proper context. 

16

Thus, the Court concludes that the consolidated and

amended complaint fails to satisfy the requirements of Rule

8(a)(2) because, with respect to the critical claim of the

existence of a conspiracy to fix prices, the complaint fails to

state the grounds upon which that claim is based. This

conclusion is reinforced by the fact that the history of this

litigation demonstrates that the plaintiffs have changed their

allegations with respect to the defendants who were members of

the conspiracy and the products involved, all while continuing to

make the same core, but vague allegations of a Section 1

violation.5

With respect to the defendants allegedly involved in

the conspiracy, the original complaints alleged that American

Standard and Masco, along with other entities, conspired to fix

the prices in the United States of bathroom and kitchen fittings

or fixtures or both. It appears that these allegations were made

after American Standard and Masco disclosed that they were being

investigated for anticompetitive activities in Europe and

American Standard confirmed it received a subpoena from the

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 16 of 22
17

United States Justice Department regarding the sale of bathroom

fittings. None of the original complaints named either Eljer or

Kohler as defendants.

The consolidated and amended complaint dropped all of

the entities other than American Standard and Masco that were

named in some of the original complaints and added Eljer and

Kohler. It is not clear what the reason for this switch was and

the consolidated and amended complaint makes no allegations

regarding either the individual defendants’ role in the

conspiracy or how they each joined the conspiracy.

Additionally, although many of the original complaints

alleged a conspiracy to fix the prices of either fittings and

fixtures or just fittings, the consolidated and amended complaint

only alleged that the defendants fixed the price of bathroom and

kitchen fixtures. Although, by focusing only on fixtures, the

plaintiffs significantly scaled back the amount of products that

were the subject of the alleged conspiracy, the plaintiffs did

not dispute the defendants’ assertion that the plaintiffs’

definition of bathroom and kitchen fixtures covers thousands of

products.

Finally, the plaintiffs also claim that they did not

discover the defendants’ price fixing scheme until November of

2004 due to fraudulent concealment and thus the statute of

limitations should be tolled. According to the complaint, the

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 17 of 22
18

plaintiffs discovered the conspiracy to fix the prices of

bathroom and kitchen fixtures in the United States about the same

time that two of the defendants, American Standard and Masco

disclosed they were being investigated in Europe for

anticompetitive activities. Although it is not clear how an

apparently voluntary disclosure of a European investigation by

two defendants could lead to the discovery of a previously

fraudulently concealed price fixing conspiracy in the United

States by all four defendants, because the Court concludes that

the plaintiffs have not adequately pled a conspiracy to fix

prices, the Court need not address the issue of whether the

allegations of fraudulent concealment meet the stricter pleading

requirements of Federal Rule of Civil Procedure 9(b). However,

as with the allegations concerning the products involved in the

conspiracy and the role of each defendant, the plaintiffs’

allegations of fraudulent concealment further demonstrate that

the plaintiffs appear to be using different defendants and

products interchangeably when making allegations of price fixing.

Although the fact that discovery will be both expensive

and time consuming does not merit a higher pleading standard, the

Supreme Court has held that in complex cases “a district court

must retain the power to insist upon some specificity in pleading

before allowing a potentially massive factual controversy to

proceed.” Associated Gen. Contractors, Inc. v. Cal. State

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 18 of 22
19

Council of Carpenters, 459 U.S. 519, 528 n.17 (1983). This

statement is particularly applicable here, where the plaintiffs

have made vague allegations that an ever changing group of

defendants conspired to fix the prices of a broad swath of

products. 

On the specific topic of concerted action by the

defendants, which is essential to the plaintiffs’ Section 1

claim, the consolidated and amended complaint alleges only in the

most general terms that the defendants agreed to fix prices, that

they communicated about this agreement and that they carried out

the agreement. Of course a conspiracy is by definition an

agreement and to agree one must communicate and thus, stripped of

its redundancies, the consolidated and amended complaint’s only

allegation of concerted action is that the defendants conspired

to fix the prices of bath and kitchen fixtures and carried out

that conspiracy. Because a general allegation of conspiracy

without more does not suffice to plead a Section 1 conspiracy,

the Court concludes that the consolidated and amended complaint

fails to satisfy even the minimal requirements of notice

pleading. See Black & Yates, Inc. v. Mahogany Ass’n, Inc., 129

F.2d 227, 231 (3d Cir. 1941).

That said, the Court will not dismiss the consolidated

and amended complaint with prejudice at this time as the

defendants request. At oral argument, the Court asked counsel

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 19 of 22
20

for the plaintiffs if there were any supplemental facts that

could be pled to address the defendants’ arguments that the

consolidated and amended complaint did not provide sufficient

notice of the grounds upon which the conspiracy claim was based. 

Counsel implied that they might possess more information than was

alleged in the pleadings, but did not supplement the complaint. 

(Mots. to Dismiss Hr’g Tr., 70-72, Jan. 26, 2006). The Court,

nevertheless, will allow the plaintiffs an opportunity to amend

their pleadings. See, e.g., Klebanow v. N.Y. Produce Exch., 344

F.2d 294, 299-300 (2d Cir. 1965) (concluding that a general

allegation of a price fixing conspiracy did not satisfy Rule 8

but allowing the complaint to be amended). 

An appropriate Order follows.

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 20 of 22
1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

In re BATH and KITCHEN FIXTURES :

ANTITRUST LITIGATION : MASTER DOCKET NO.

___________________________________: 05-cv-00510 MAM

:

THIS DOCUMENT RELATES TO: :

ALL ACTIONS :

___________________________________:

ORDER

AND NOW, this 19th day of July, 2006, upon

consideration of the motion to dismiss filed by Eljer and Kohler

(Docket No. 27), the motion to dismiss filed by American Standard

and Masco (Docket No. 31), the plaintiffs’ response in opposition

to both motions, the reply of Eljer and Kohler, the reply of

American Standard and Masco, the plaintiffs’ consolidated and

amended complaint and arguments presented at a hearing held on

January 26, 2006, IT IS HEREBY ORDERED that for the reasons

stated in a Memorandum and Order of this date, the motion to

dismiss filed by Eljer and Kohler and the motion to dismiss filed

by American Standard and Masco are both GRANTED to the extent

they argue that the consolidated and amended complaint fails to

provide the defendants notice of the grounds upon which the

plaintiffs’ claims rest.

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 21 of 22
2

The Court will not dismiss the consolidated and amended

complaint at this time, but will allow the plaintiffs thirty (30)

days to amend their complaint.

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

Case 2:05-cv-00510-MAM Document 42 Filed 07/19/06 Page 22 of 22