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March 9, 2004.


The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District

MEMORANDUM OPINION Re: Defendants' Motions for Summary Judgment on the Issue of an "All-Vitamins Conspiracy"
Pending before the Court are five defendants' motions*fn1 for summary judgment seeking judgment on the issue of the scope of the conspiracy pursuant to Fed.R.Civ.P. 56. Upon careful consideration of the parties' briefs, arguments presented, and the entire record herein, the Page 2 Court grants for certain Defendants and denies for one Defendant motions for summary judgment on Plaintiffs' "all-vitamins conspiracy" claim.


  This case stands at the heels of one of the largest criminal antitrust investigations ever undertaken by the United States Department of Justice. To date, the Antitrust division of the Department of Justice has prosecuted 30 cases and gathered well over $875 million in criminal fines relating to the international vitamins cartel.*fn2 This vitamins cartel enacted one of the most elaborate and wide-spread conspiracies ever prosecuted by the United States Department of Justice.*fn3

  The case before this Court is equally formidable. As of a few months ago, the consolidated action before the Court involved 55 separate multiparty lawsuits from 32 different federal courts. The enormity and complexity of this case can be seen through the fact that over 1,000 opinions and rulings have been issued by the Court in this case. Furthermore, well over 100 law firms participated in the preparation of over 10,000 separate filings that have been lodged in this matter to date. This opinion addresses five of the motions that have been filed in this case.

  Plaintiffs allege that Defendants, along with their co-conspirators, conspired to artificially inflate the price of certain vitamins and vitamin products, allocate shares of the vitamin market, Page 3 predetermine sales volume in the vitamin industry, eliminate competition from non-co-conspirators, limit supply, and allocate specific customers among themselves and their co-conspirators in the following vitamin markets: Vitamin A, Vitamin B1 (Thiamine), Vitamin B2 (Ribloflavin), Vitamin B3 (Niacin), Vitamin B4 (Choline Chloride), Vitamin B5 (CalPan), Vitamin B6 (Pyridoxine), Vitamin B9 (Folic Acid), Vitamin B12, Vitamin C, Vitamin D, Vitamin E, Vitamin H (Biotin), Astaxanthin, Beta Carotene, Canthaxonthin, Apocarotenal, and vitamin premix, in violation of Section 1 of the Sherman Act. See, e.g., Second Am. Compl. for Antitrust Violations, Blue Seal Feeds, Inc., et al., v. BASF A.G., et al., ¶¶ 1, 121-135. This alleged conspiracy between the sellers of the various vitamins listed above is referred to as the all-vitamins conspiracy. The issue before the Court is the viability of Plaintiffs' alleged all-vitamins conspiracy.

  As mentioned above, the procedural history in this case is quite extensive, and a brief review of the pertinent parties and pleadings affecting this morion is warrented. On or shortly before August 6, 2002, various Defendants filed forty-nine (49) motions with the court, while various Plaintiffs filed two dispositive motions. Of the forty-nine dispositive defense motions, twenty-two related to "scope of the conspiracy" defenses. Of those twenty-two motions, sixteen of them specifically addressed Plaintiffs' alleged all-vitamins conspiracy.

  On November 21, 2002, the Court heard oral argument on the all-vitamins conspiracy motions. Since that time, many individual cases have been resolved. The all-vitamins conspiracy motions that remain pending are #11, #13, #14, #16, and #17 (as numbered in the chart submitted by Dickstein, Shapiro, Morin & Oshinsky, LLP under cover of its August 14, 2002 letter to the Court). These motions were filed by the following Defendants, respectively: Page 4 Bioproducts, DuCoa and DCV, DuPont, Chinook, and UCB.

  Two separate moving papers have been filed on behalf of each Defendant: first, Defendants collectively filed Certain Defendants' Joint Memorandum of Law in Support of Summary Judgment on Plaintiffs' All-Vitamins Conspiracy Claim ("Defs.' Mem."); second, each Defendant filed an individual motion and reply brief on their own behalf.*fn4 Plaintiffs submitted two primary documents in opposition to Defendants' motions for summary judgment: first, Certain Plaintiffs' Joint Opposition to Certain Defendants' Joint Memorandum of Law in Support of Summary Judgment on Plaintiffs' All-Vitamins Conspiracy Claims (the "PJO"); second, Plaintiffs' Joint Counterstatement of Facts in Opposition to Defendants' Motions for Summary Judgment Regarding the Fact and Scope of the Conspiracy, Fraudulent Concealment, and Subsidiary Liability (the "PJC"). Plaintiffs also filed individual opposition papers against specific Defendants.*fn5 Page 5

  Two groups of cases remain. Some cases against Defendants will be remanded to their original jurisdictions, while others will remain in this Court for trial.*fn6 The following is a breakdown of the remaining cases pending against each Defendant:
Bioproducts: (1) Class action plaintiffs'*fn7 cases to tried in Minnesota*fn8
(2) Direct action plaintiffs'*fn9 cases to be remanded
DuCoa: (1) Direct action plaintiffs' cases to be remanded
DuPont: (1) Direct action plaintiffs' cases to be remanded
Chinook: (1) Class action plaintiffs' cases to be tried in Minnasota
(2) Direct action plaintiffs' cases to be remanded
UCB: (1) Hill's Pet Nutrition cases to be remanded
All parties agree that the instant motion is to be decided before these cases are remanded to their original filing jurisdictions.

  1. The Defendants

  a. UCB

  There are three UCB defendants: UCB, S.A.; UCB, Inc.; and UCB Chemicals Corporation. UCB, S.A. is a Belgium-based company that produces and sells prescription pharmaceuticals, high performance film and packaging materials, and specialty chemical Page 6 products. The Chemical Sector of UCB, S.A., which is involved in the production and sale of specialty chemical products, manufactures and sells choline chloride. UCB, Inc. is a subsidiary of UCB, S.A. located in the United States, and UCB, Inc. is a holding company that offers support services to its subsidiaries. UCB, Inc. never manufactured or sold choline chloride. UCB Chemicals Corporation is a subsidiary of UCB, Inc. and is also located in the United States. UCB Chemicals Corporation manufactures and markets specialty chemicals. UCB Chemicals Corporation did not manufacture choline chloride during any of the conspiracy periods but did sell choline from 1999-2001. UCB Mem. in Support Mot. Summ. J. ("UCB Mem.") at 3-5.

  UCB asserts that it did not manufacture or sell any vitamins other than choline chloride during the alleged conspiracy period, and did not participate in the markets for any of the non-choline vitamins during the conspiracy period. Id.

  b. DuPont

  There is one DuPont defendant: E.I. DuPont De Nemours and Company. E.I. DuPont De Nemours and Company is a world-wide "science company" that "deliver[s] science-based solutions in markets such as food and nutrition, health care, apparel, home and construction, electronics and transportation." DuPont Statement of Undisputed Material Facts In Supp. Mot. For Partial Summ. J. On All-Vitamins Conspiracy ¶ 2. DuPont is headquartered in Wilmington, Delaware. Id. DuPont's "sole connection" to this case is its "former ownership interest in a joint venture business, DuCoa, that manufactured choline chloride." DuPont Mem. in Support of Mot. For Partial Summ. J. On the Issue of an All-Vitamins Conspiracy at 1.

  According to DuPont, Plaintiffs have attempted to establish two connecting points that Page 7 render DuPont liable in the all-vitamins conspiracy. First, Plaintiffs have alleged that DuPont "participated" in a choline conspiracy, which is part of a larger conspiracy through the "alleged participation in a choline chloride conspiracy by Dr. Earnie Porta, a one-time DuPont employee and later, President of DCV, Inc." Id. at 20. Second, Plaintiffs assert that DuPont's status as a general partner in the joint venture, DuCoa, for a period of time in the late 1980s until the early 1990s renders it liable. Id. DuPont claims that it "did not manufacture, distribute or sell choline chloride," or any other vitamin at issue in the all-vitamins conspiracy. DuPont Statement of Undisputed Material Facts In Supp. Mot. For Partial Summ. J. On All-Vitamins Conspiracy ¶ 3.

  c. DuCoa/DCV

  There are two DuCoa defendants: DuCoa, L.P. and DCV, Inc. In December 1986, DuPont and ConAgra formed DuCon, a general partnership joint venture, in order to manufacture choline chloride. DuPont Statement of Undisputed Material Facts In Supp. Mot. For Partial Summ. J. On All-Vitamins Conspiracy ¶ 4. DuCon changed its name to DuCoa on October 1, 1991. Id. at ¶ 5. On December 31, 1992, DuCoa was converted to a limited partnership with DuPont and ConAgra as limited partners and DCV, Inc., a newly formed Delaware corporation, as the general partner. Id. Among the fourteen different partnerships organized under the umbrella of DCV, Inc., only DuCoa was involved in the manufacture and sale of choline chloride. Plaintiffs contest the accuracy of DuCoa's formation in that an insufficient record was provided by DuCoa in support thereof. Pls.' Opp'n. to Defs.' Statement of Facts Which Precludes Entry of Summ. J. on DuCoa, L.P. and DCV Inc.'s Mot. Summ. J. at 7.

  DuCoa (originally as DuCon) began manufacturing choline chloride in approximately Page 8 December 1987. DuCoa manufactured choline chloride from December 1987 through June 1, 2001. DuPont Statement of Undisputed Material Facts in Supp. Mot. Partial Summ. J. at ¶ 5-6. On June 1, 2001, DuCoa's choline business was sold as part of a package of businesses to Balchem. Id. In 1995, DuCoa began buying and reselling various "Vitamins"*fn10 and blending and selling premix. Id. at ¶ 6.

  d. Bioproducts

  There is one Bioproducts Defendant: Bioproducts, Inc. Bioproducts is a wholly-owned subsidiary of Mitsui*fn11 located in Fairlawn, Ohio. Bioproducts manufactured choline and vitamin premixes. Pls.' Joint Counterstatement of Facts in Opp'n to Defs.' Mots. Summ. J. ("PJC") ¶ 38. Bioproducts manufactured and sold feed-grade choline chloride during the conspiracy periods alleged by Plaintiffs. Bioproducts' Mem. Supp. Mot. Summ. J. at 2. Bioproducts maintains that it did not manufacture or sell any vitamins other than choline chloride during the conspiracy periods alleged by Plaintiffs. Id. Page 9

  e. Chinook

  There are two Chinook defendants: Chinook Group Limited and Chinook Group, Inc. Chinook Group Limited is a corporation organized under the laws of Ontario, Canada, with its principal place of business in Sombra, Ontario. Chinook Mot. Summ. J. Ex. A (Aff. of Dean Lacy). Chinook Group, Inc. is a Minnesota corporation that is wholly-owned by its Canadian parent, Chinook Group Limited. Chinook Mot. Summ. J. on All-Vitamins Conspiracy at 2.

  Chinook Group Limited manufactures and sells choline chloride which is produced at its plants in Canada. Chinook Group, Inc. provided a "toll" manufacturing service to Chinook Group Limited (formerly known as Chinook Group) from 1988 through 1998, converting aqueous choline chloride into dry choline chloride. Id.

  Neither Chinook Group Limited nor Chinook Group, Inc. manufactured or sold any vitamin product, nor any products that could be used as ingredients in any vitamin product, other than choline chloride. Id.

  2. The Product

  Defendants are all manufacturers of choline chloride, also known as Vitamin B4, more commonly known as "choline." Choline is a nutritional supplement used primarily in animal feed. Choline is synthesized from three chemical products: trimethylamines, ethylene oxide, and hydrochloric acid. During the relevant time period, all of the choline chloride manufacturers made at least one of the raw materials needed to manufacture choline. Pls.' Mem. Opp'n. UCB's Mot. Summ. J. at 5.

  Defendants differentiate choline from other vitamins because choline (1) is produced through a process using largely different raw materials than other vitamins, and (2) there are no Page 10 substitutes for choline (and, conversely, choline is not a substitute for any other vitamin). Defendants have even defined the term "Vitamins" so as not to include choline chloride. See, e.g., UCB's Mem. Supp. Mot. Summ. J. at 2. Plaintiffs argue that this "arbitrary" definition has been devised solely "to support [Defendants'] motions to sever choline from the rest of the conspiracy." Pls.' Mem. Opp'n. UCB's Mot. Summ. J. at 5.

  3. The Alleged "Ringleaders"

  a. BASF

  BASF Atkiengesellschaft, or BASF AG ("BASF"), is a corporation organized and existing under the laws of Germany. BASF's principal place of business is in Ludwigshafen, Germany. BASF Agreed Statement of Facts (Fed. Ct. Canada) (Sept. 17, 1999). Among other things, BASF is involved in the production and/or sale of oil and gas, bulk chemicals, plastics, high performance chemical products, plant protection products, and pharmaceuticals. BASF AG's Fine Chemicals Division produces and sells vitamins. At one time, BASF was the second largest supplier of bulk vitamins and carotenoids in the world. PJC at ¶ 7. From at least 1992 through 1995, BASF was one of the principal European manufacturers and marketers of choline chloride. BASF Agreed Statement of Facts (Fed. Ct. Canada) (Sept. 17, 1999). BASF is no longer a defendant in any active litigation as BASF has settled all claims with Plaintiffs.

  b. F. Hoffman-LaRoche Ltd

  F. Hoffman-LaRoche Ltd ("Roche"), headquartered in Basel, Switzerland, is one of the largest pharmaceutical and health groups in the world. PJC at ¶ 1. At the time of the European Commission decision against Roche (Nov. 21, 2001), Roche was the largest vitamin producer in the world, controlling approximately 50% of the overall market. ECF ¶ 77. Roche's vitamin Page 11 operations account for approximately 8% of the corporation's overall gross income. PJC ¶ 4.

  c. Coordination of Activities

  Although BASF and Roche are no longer parties to the instant motion, both are critical to Plaintiffs' case. Plaintiffs theorize that both BASF and Roche controlled the choline conspiracy. See, e.g., Pls.' Slide Ex. at 19 ("Roche and BASF were joint leaders and instigators of the collusive arrangements affecting the common range of vitamin products they produced. . . ." (quoting ECF ¶ 712)).

  BASF acknowledged to both Canadian and European authorities its "pre-eminent role" in the global agreements. PJC at ¶ 344; BASF Agreed Statement of Facts (Fed. Ct. Canada (Sept. 17, 1999)). BASF provided several documents to the EC indicating its intent to fix prices and allocate market shares in the choline chloride market. See, e.g., BASF AG 0033336-55; BASF AG 003361-62; BASF AG 0033449-75; BASF AG 0033477-79; BASF AG 0033480-33564; BASF AG 0033580-613. The documents also indicate BASF's coordination of conspiracy activities with Defendants. Id.

  The only direct link that Plaintiffs provide establishing Roche's connection to the conspiracy is a document produced by BASF.*fn12 BASF AG 0025648-49.*fn13 The European Commission found that Roche was the "prime mover and main beneficiary of the complex of collusive arrangements." ECF ¶ 568. The Commissions' findings, however, do not specifically Page 12 address choline.*fn14

  A secondary argument setting forth Roche's involvement in the choline conspiracy is Roche's economic incentives. In addition to manufacturing and selling many vitamin products, Roche is also a buyer and reseller of choline chloride, primarily in the form of premix. Premix is a blend of vitamins sold as a separate product. Most animal feed is purchased in the form of premix. Choline is a component in 25% of ...

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