No Pressure, Beth Just $12 Billion on the Line as Containerboard Class Action Gets Closer to Trial

Taking a price fixing class action to trial is not for the faint of heart. Damages are trebled, and any defendant left standing could be on the hook for the whole shebang.

That specter seemed to loom large for International Paper, which on Wednesday announced it would pay $354 million to settle a suit alleging seven industry players conspired to fix the price of containerboard products like corrugated boxes a market that while unglamorous, is absolutely enormous.

We continue to maintain that the allegations are baseless and without merit," said International Paper CEO Mark Sutton in a news release. "However, we have agreed to settle this lawsuit in order to avoid substantial on-going legal expenses and the inherent risks of a multi-billion-dollar class-action lawsuit."

It s a fat check to write if you did nothing wrong but the settlement, which comes as motions for summary judgment are pending, is a lot less than the $11.7 billion plaintiffs claim they re owed.

It leaves Georgia Pacific, represented by a team led by Beth Wilkinson of Wilkinson Walsh + Eskovitz, and WestRock CP, represented by Winston & Strawn s Michael P. Mayer, to fight the allegations.

Wilkinson, who declined comment, has no particular antitrust expertise but is known as one of the top trial lawyers in the country. Hiring her is a signal that GP is willing to take the case to a jury. Mayer, for his part, has represented companies in multiple antitrust class actions.

In 2010, containerboard customers sued the companies in U.S. District Court for the Northern District of Illinois, alleging that between February 15, 2004 and November 8, 2010, the defendants colluded to raise prices, making lockstep announcements and cutting capacity.

These guys tried to raise prices 15 times, plaintiffs co-lead counsel Dan Mogin of MoginRubin said in an interview. It didn t matter if the economy was up, down or sideways. In an industry highly dependent on the economic cycle, they even tried to raise prices three times in the worst recession of our lifetime. Even when the price increases failed, that they attempted to do so and so brazenly and frequently tells you that they had an expectation of a different outcome, that they could defy economic gravity.

He added, If the rules of gravity didn t apply, the rules of collusion did.

Freed Kanner London & Millen is co-lead counsel. A long list of firms including Kellogg, Hansen, Todd, Figel & Frederick; Hagens Berman Sobol Shapiro; Berger & Montaque and Saveri & Saveri, are also representing the plaintiffs.

They re sitting pretty now. The $354 million settlement includes a request for $106 million in legal fees. Even if the plaintiffs crash and burn at trial, the lawyers won t walk away empty-handed.

The risk is much bigger for Georgia Pacific, which could in theory get saddled with the entire $11.7 billion penalty (minus a $354 million deduction for the settlement).

WestRock, previously known as Smurfit-Stone Container Corp., appears to be in a less vulnerable position. The company declared bankruptcy in 2009. When it emerged in 2010, it was released from all prior claims. That means the current antitrust claims are limited to its post-bankruptcy conduct all four months of it.

Still, it simplifies Georgia Pacific s story now that International Paper has exited the stage.

Represented by Foley & Lardner and Eimer Stahl, the company is the biggest player in the market, especially since it bought two of the other companies it was accused of colluding with.

Weyerhaeuser, represented in the antitrust suit by McDermott, Will & Emery, sold its containerboard business to International Paper for $6 billion in 2008. Temple-Inland Inc., represented here by Mayer Brown, was acquired by International Paper in 2012 for $4.5 billion.

(Another defendant, Packaging Corp. of America, represented by Kirkland & Ellis, settled in 2014 for $17.6 million, and Cascades Canada ULC/Norampac Holdings U.S. Inc., represented by K&L Gates, settled for $4.8 million.)

The acquisitions tend to reinforce the notion of coziness, which would have made the defense more challenging. Foley partner James McKeown, a member of the firm s management committee and former chair of its antitrust practice, did not respond to a request for comment.

The settlement contains a somewhat unusual provision. It allows International Paper to reduce its settlement payment if Georgia Pacific settles before trial. If so, depending on how much Georgia Pacific pays, International Paper could pay up to $118 million less.

As the case moves forward, Georgia Pacific on its own can stress that even while other defendants may have reduced capacity, it did not.

GP added a fifth containerboard mill increasing its capacity during the class period, Wilkinson wrote in a motion for summary judgment. GP was increasing its containerboard capacity during a time when Plaintiffs allege there was an across-the-board conspiracy to reduce supply.

As for the price increases, she argues, There is no evidence that GP had advance knowledge of any competitor s price increases announcements much less an agreement with them to raise prices For the most part, GP simply followed-the-leader i.e., announced a price increase after one or more competitors was publicly reported to have done so.

Like many antitrust cases, this one may turn on expert witnesses. On May 31, U.S. District Judge Harry D. Leinenweber released a lengthy Daubert opinion, where he allowed almost all the testimony.

But he warned, While the court has admitted most of the expert opinions at issue in the case, it cautions the parties that whether the evidence admitted is sufficient to carry the case to trial is another matter. The court will take up that issue when it rules on the pending motions for summary judgment.

Contact Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna.

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