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Case: 1:08-cv-05468 Document #: 152 Filed: 04/26/16 Page 1 of 68 PageID #:509

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SUPREME AUTO TRANSPORT LLC,
A Michigan Corporation,
on behalf of themselves and all
others similarly situated,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
ARCELOR MITTAL;
)
ARCELOR MITTAL USA, INC.;
)
UNITED STATES STEEL CORPORATION; )
NUCOR CORPORATION;
)
GERDAU AMERISTEEL CORPORATION; )
STEEL DYNAMICS, INC.;
)
AK STEEL HOLDING CORPORATION;
)
SSAB SWEDISH STEEL CORPORATION; )
COMMERCIAL METALS, INC.,
)
)
Defendants.
)
_____________________________________ )

Case No. 08-cv-5468
Judge: James B. Zagel

Jury Trial Demanded

AMENDED CLASS ACTION COMPLAINT
Plaintiffs bring this action under state antitrust, consumer protection laws, and
unjust enrichment common law claims on behalf of themselves individually and on behalf
of a Plaintiff class (the “Class”, defined in ¶37 below) consisting of all persons and entities
in the United States (excluding Ohio and Indiana), in the listed Indirect Purchaser States
(defined in ¶5 below), and the listed Consumer Protection States (defined in ¶6 below),
who indirectly purchased steel products (defined in ¶3 below) demanding a trial by jury,
complains, and allege as follows:

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JURISDICTION AND VENUE
1.

The Court has jurisdiction over this action pursuant to 15 U.S.C. §§ 15 and

26, and pursuant to 28 U.S.C. §§ 1331, 1337(a) and 1367. This Court has personal
jurisdiction over each of the Defendants because each was engaged in an illegal pricefixing scheme and conspiracy that was directed at and/or caused injury to persons and
entities residing in, located in, or doing business in this District and throughout the United
States. For the state law claims, the court also has jurisdiction pursuant to 28 USC
§1332(d), in that this is a class action in which the matter of controversy exceeds the sum
of $5,000,000, exclusive of interest and costs, and which some members of the proposed
class are citizens of a different state than of the Defendants.
2.

Venue is proper in this judicial district pursuant to 15 U.S.C. § 22 and 28

U.S.C. § 1391(b) and (c) because some of the defendants reside, or are licensed to do
business or are doing business, or are found or transact business in this district and/or the
claims arose in this district.
DEFINITIONS
3.

“Steel products” means any consumer steel product for end use and not for

resale, including clothes washers, clothes dryers, refrigerators, freezers, dishwashers,
microwave ovens. regular ovens, automobiles, semi-tractor trailers, farm and construction
equipment, room air conditioner units, hot water heaters, snow blowers, barbeque grills,
lawn mowers, and reinforcing bars used in patios, driveways, swimming pools and
sidewalks.
4.

As used herein, the term “Class Period” means the time period January 1,

2005 to September 17, 2008.

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5.

The “Indirect Purchaser States” are Arizona, California, District of

Columbia, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Nebraska, Nevada,
New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee,
Vermont, Utah, West Virginia, and Wisconsin.
6.

The “Consumer Protection States” are Alaska, Arkansas, California,

Colorado, Delaware, District of Columbia, Florida, Idaho, Maine, Massachusetts,
Michigan, Montana, Nebraska, Nevada, New York, New Hampshire, North Carolina,
Vermont, and Wisconsin.
THE PARTIES
PLAINTIFFS
7.

SUPREME AUTO TRANSPORT LLC, a Michigan Corporation and a

Michigan citizen and resident, is an auto transport company. Plaintiff purchased one or
more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

Plaintiff was injured as a result of

Defendants’ illegal conduct.
8.

PETER KREUTZFELDT as a Michigan citizen and resident purchased one

or more steel products containing steel purchased from one or more of the Defendants
during the Class Period for end use and not for resale. Plaintiff was injured as a result of
Defendants’ illegal conduct.
9.

DOUGLAS BAKER as a Florida citizen and resident purchased one or

more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.
Defendants’ illegal conduct.

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Plaintiff was injured as a result of

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10.

CYNTHIA SELEY as a California citizen and resident purchased one or

more steel products containing steel from one or more of the Defendants during the Class
Period for end use and not for resale. Plaintiff was injured as a result of Defendants’ illegal
conduct.
11.

MARK P. LYNCH as a California citizen and resident purchased one or

more steel products containing steel from one or more of the Defendants during the Class
Period for end use and not for resale. Plaintiff was injured as a result of Defendants’ illegal
conduct.
12.

SHARMILA SINGH as a California citizen and resident purchased one or

more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

Plaintiff was injured as a result of

Defendants’ illegal conduct.
13.

MARGARET FEERICK as a New York State citizen and resident

purchased one or more steel products containing steel purchased from one or more of the
Defendants during the Class Period for end use and not for resale. Plaintiff was injured as
a result of Defendants’ illegal conduct.
14.

CASEY CHRISTENSEN as a South Dakota citizen and resident purchased

one or more steel products containing steel purchased from one or more of the Defendants
during the Class Period for end use and not for resale. Plaintiff was injured as a result of
Defendants’ illegal conduct. Plaintiff as an Iowa citizen and resident purchased one or
more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

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15.

HELENE CHU as a New York citizen and resident of purchased one or

more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

Plaintiff was injured as a result of

Defendants’ illegal conduct.
16.

CARA BORTH as a Kansas citizen and resident purchased one or more

steel products containing steel purchased from one or more of the Defendants during the
Class Period for end use and not for resale. Plaintiff was injured as a result of Defendants’
illegal conduct.
17.

KIRSTEN LUENZ as a Kansas citizen and resident purchased one or more

steel products containing steel purchased from one or more of the Defendants during the
Class Period for end use and not for resale. Plaintiff was injured as a result of Defendants’
illegal conduct.
18.

DOUG SHRYOCK as a Montana citizen and resident purchased one or

more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

Plaintiff was injured as a result of

Defendants’ illegal conduct.
19.

KEVIN ELIJAH as a North Carolina citizen and resident purchased one or

more steel products containing steel purchased from one or more of the Defendants during
the Class Period for end use and not for resale.

Plaintiff was injured as a result of

Defendants’ illegal conduct.
20.

JUDITH STUCHINER as a New York citizen and resident purchased one

or more steel products containing steel purchased from one or more of the Defendants

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during the Class Period for end use and not for resale. Plaintiff was injured as a result of
Defendants’ illegal conduct.
21.

JOSEPH SPOSI as an Arizona citizen and resident purchased one or more

steel products containing steel purchased from one or more of the Defendants during the
Class Period for end use and not for resale. Plaintiff was injured as a result of Defendants’
illegal conduct.
22.

CHARLES BENSON III as a Tennessee citizen and resident purchased one

or more steel products containing steel purchased from one or more of the Defendants
during the Class Period for end use and not for resale. Plaintiff was injured as a result of
Defendants’ illegal conduct.
DEFENDANTS
23.

Arcelor Mittal (“Mittal” or “Mittal Steel”) is a Luxembourg corporation

located at 19 Avenue de la Liberte, L-2930, Luxembourg, Grand Duchy of Luxembourg.
The Defendant Arcelor Mittal, was formerly known as Mittal Steel Company N.V. and/or
as Ispat International N.V., Defendant has operations in the United States, by either direct
operations or through wholly-owned and controlled subsidiaries and affiliates. During the
Class Period, Defendant Arcelor Mittal and/or its predecessors, wholly-owned and/or
controlled subsidiaries and/or affiliates sold steel products to consumers in the United
States, and sold to consumers in the Indirect Purchaser States listed above.
24.

Arcelor Mittal USA, Inc. (“Mittal” or “Mittal Steel”) is the principal of the

United States operating subsidiary of Arcelor Mittal. Arcelor Mittal USA, Inc. is a whollyowned subsidiary of Arcelor Mittal located at 1 South Dearborn, Chicago, IL 60603. The
Defendant Arcelor Mittal USA is the successor of: Mittal Steel USA ISG, Inc.;

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International Steel Group, Inc.; Ispat Inland; and Mittal Steel USA, Inc. During the Class
Period, Arcelor Mittal USA and/or its predecessors, wholly-owned and/or controlled
subsidiaries and/or affiliates sold steel products to consumers in the United States, and sold
to consumers in the Indirect Purchaser States listed above.
25.

United States Steel Corporation (“U.S. Steel”) is a Delaware corporation

located at 600 Grant Street, Pittsburgh, Pennsylvania 15219. During the Class Period, U.S.
Steel and/or its predecessors, wholly-owned and/or controlled subsidiaries and/or affiliates
sold steel products to consumers in the United States, and sold to consumers in the Indirect
Purchaser States listed above.
26.

Nucor Corporation (“Nucor”) is a Delaware corporation located at 1915

Rexford Road, Charlotte, North Carolina 28211. During the Class Period, Nucor and/or its
predecessors, wholly-owned and/or controlled subsidiaries and/or affiliates sold steel
products to consumers in the United States, and sold to consumers in the Indirect Purchaser
States listed above.
27.

Gerdau Ameristeel Corporation (“Gerdau Ameristeel”) is a Canadian

corporation located at 4221 West Boy Scout Boulevard, Suite 600, Tampa, Florida 33607.
During the Class Period, Gerdau Ameristeel and/or its predecessors, wholly wholly-owned
and/or controlled subsidiaries and/or affiliates sold steel products to consumers in the
United States, and sold to consumers in the Indirect Purchaser States listed above.
28.

Steel Dynamics, Inc. (“Steel Dynamics”) is an Indiana corporation located

at 6714 Pointe Inverness Way, Suite200, Fort Wayne, Indiana 46804. During the Class
Period, Steel Dynamics and/or its predecessors, wholly-owned and/or controlled

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subsidiaries and/or affiliates sold steel products to consumers in the United States, and sold
to consumers in the Indirect Purchaser States listed above.
29.

AK Steel Holding Corporation (“AK Steel”) is a Delaware corporation

located at 9227 Centre Point Drive, West Chester, Ohio 45069. During the Class Period,
AK Steel and/or its predecessors, wholly-owned and/or controlled subsidiaries and/or
affiliates sold steel products to consumers in the United States, and sold to consumers in
the Indirect Purchaser States listed above.
30.

SSAB Swedish Steel Corporation (“SSAB”) is a Swedish corporation

headquartered in Stockholm, Sweden, located at 650 Warrenville Road, Suite 500, Lisle,
Illinois 60532. SSAB is the predecessor of IPSCO, Inc. (“IPSCO”). During the Class
Period, SSAB and IPSCO and/or their predecessors, wholly-owned and/or controlled
subsidiaries and/or affiliates sold steel products to consumers in the United States, and sold
to consumers in the Indirect Purchaser States listed above.
31.

Commercial Metals Company (“Commercial Metals”) is a Delaware

corporation located at 6565 MacArthur Boulevard, Irving, Texas 75039. During the Class
Period, Commercial Metals and/or its predecessors, wholly-owned and/or controlled
subsidiaries and/or affiliates sold steel products to consumers in the United States, and sold
to consumers in the Indirect Purchaser States listed above.
CO-CONSPIRATORS
32.

Various entities not named as defendants participated in the violations

alleged herein and have performed acts and made statements in furtherance of the
conspiracy, illegal acts, and conduct alleged herein. Plaintiffs reserve the right to name
some or all of these entities as defendants at a later date.

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33.

The acts alleged herein that were done by each of the co-conspirators were

fully authorized by each of those co-conspirators, or ordered, or done by duly authorized
officers, agents, employees, or representatives or each co-conspirator while actively
engaged in the management, direction, or control of its affairs.
34.

Defendants also are liable for acts done in furtherance of the alleged

conspiracy by companies they acquired through mergers and acquisitions.
35.

Defendants conduct business throughout the United States including the

State of Illinois, and they have purposely availed themselves of the laws of the Indirect
Purchaser States and Consumer Protection States.
NATURE OF THE ACTION
36.

The nature of this action is that Defendants conspired to fix, raise, maintain

and/or stabilize the price of steel products that were sold in the United States during the
Class Period. The Defendants’ conspiracy included a scheme to artificially restrict the
supply of steel and steel products in the United States, and in the Indirect Purchaser and
Consumer Protection States listed above, allowing Defendants to charge supracompetitive
prices for steel and steel products in the United States and in the Indirect Purchaser and
Consumer Protection States listed above.
37.

During the Class Period, Defendants met with each other to discuss the need

to impose industry wide production “discipline” and to “adjust their production rates so the
price of steel doesn’t drop.” These statements and others by and between the Defendants
were followed with specific action: massive, coordinated, and unprecedented market
downtime, i.e., idling and/or reducing production of steel products.

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38.

Pursuant to their collusive conduct, Defendants removed remarkable

amounts of steel products from the global market, which caused prices to rise artificially.
The impact on the Class has been and continues to be exceedingly substantial. The Class
was “squeezed by the steel mills’ market domination and shortening of supply,” and, as
indirect consumers of steel products, paid substantially more for the steel products during
the conspiracy period than they would have paid in a truly competitive market
environment.
PLAINTIFFS’ INJURY
39.

Each Plaintiff, including SUPREME AUTO TRANSPORT LLC, PETER

KREUTZFELDT, DOUGLAS BAKER, CYNTHIA SELEY, MARK P. LYNCH,
SHARMILA SINGH, MARGARET FEERICK, CASEY CHRISTENSON, HELENE
CHU, CARA BORTH, KIRSTEN LUENZ, DOUG SHRYOCK, KEVIN ELIJAH,
JUDITH STUCHINER, JOSEPH SPOSI, and CHARLES BENSON III purchased one or
more steel products during the Class Period. Plaintiffs’ and the Class purchased steel
products that contained steel manufactured by Defendants and paid a supra-competitive
price for the steel product based upon the conspiracy between the Defendants to raise and
fix prices of steel and steel products in the United States, and in the Indirect Purchaser
States, and in the Consumer Protection States.
40.

To the extent necessary, the relevant product market is the market for steel

products sold to end users in the United States, the Consumer Protection States, and in the
Indirect Purchaser States. The relevant geographic market is the entire United States,
and/or the Indirect Purchaser States and/or Consumer Protection States. At all relevant

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times, including the present, Defendants’ collectively held and continue to hold a vast
majority (80%-85%) of the market share in the relevant product and geographic markets.
CLASS ACTION ALLEGATIONS
41.

Plaintiffs bring this action on behalf of themselves, and on behalf of all

others similarly situated. Plaintiffs seek to represent the following class, defined as:
All persons and entities residing in the United States, residing in the
Indirect Purchaser States, and/or those residing in the Consumer Protection
States from January 1, 2005 to September 17, 2008, who indirectly purchased
steel products in the United States for their own use and not for resale.
Excluded from the Class are: governmental entities, any judge, justice or
judicial officer presiding over this matter and the members of his or her
immediate family, Defendants and their co-conspirators, along with their
respective parents, subsidiaries and/or affiliates. Also excluded from this
Class are the legal representatives, heirs, successors and attorneys for any
excluded person or entity, and any person acting on behalf of any excluded
person or entity.
42.

All Class members are hereinafter referred to as the “Class,” subject to

additional information obtained through further investigation and discovery.
43.

This action has been brought and may properly be maintained as a class

action, pursuant to the provisions of the Rule 23(a), (b)(2), and (b)(3) of the Federal Rules
of Civil Procedure on behalf of all members of the Class including from a retailer in the
United States and/or Indirect Purchaser States (defined above), or the Consumer Protection
States (defined above) during the Class Period:
a.

The Class is so numerous that joinder of all members is

impracticable. Due to the nature of the trade and commerce involved, the members
of the Class are geographically dispersed throughout the United States and/or the
Indirect Purchaser States and/or the Consumer Protection States. The precise
number of Class members is unknown to Plaintiffs. Throughout the period of time

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covered by this Complaint, Defendants and their co-conspirators engaged in the
business of marketing and selling steel products throughout the United States and
throughout the Indirect Purchaser States and Consumer Protection States.
b.

Common questions of law and fact exist as to all members of the

Class and predominate over any questions affecting solely individual members of
the Class. Among the questions of law and fact common to the Class are:
i.

whether Defendants formed and operated a combination or

conspiracy to fix, raise, maintain, manipulate or stabilize the prices of,
or allocate the market for, sales of steel products;
ii.

whether the combination or conspiracy caused steel products’

prices to be higher than they would have been absent the Defendants’
conduct;
iii.

the time period of Defendants’ combination or conspiracy;

iv.

whether the Defendants’ alleged conduct caused injury to the

business or property of Plaintiffs and the members of the Class;
v.

the appropriate measure of damages suffered by the Class;

vi.

Whether the alleged conduct violated the Indirect Purchaser

States laws concerning antitrust as alleged in Count I of this
Complaint;
vii.

whether Defendants’ conduct violates unfair competition and

consumer protection laws of the other states as alleged below in Count
II;

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c.

Plaintiffs’ claims are typical of the claims of the other members of the

Class it seeks to represent. Defendants’ illegal and inequitable methods, acts, and trade
practices have targeted and affected all members of the Class in a similar manner.
Furthermore, Plaintiffs and all members of the Class sustained monetary injury arising
out of Defendants’ wrongful conduct.
d.

Plaintiffs will fully and adequately protect the interests of all

members of the Class. Plaintiffs have retained counsel who are experienced in class
action and antitrust litigation. Plaintiffs have no interests which are adverse to or
in conflict with other members of the Class.
e.

A class action is superior to other available methods for the fair and

efficient adjudication of this controversy since joinder of all class members is
impracticable. The prosecution of separate actions by individual members of the
Class would impose heavy burdens upon the courts, and would create a risk of
inconsistent or varying adjudications of the questions of law and fact common to
the Class. A class action, on the other hand, would achieve substantial economies
of time, effort, and expense, and would assure uniformity of decision with respect
to persons similarly situated without sacrificing procedural fairness or bringing
about other undesirable results.
f.

The interest of members of the Class in individually controlling the

prosecution of separate actions is theoretical rather than practical. The Class has a
high degree of cohesion, and prosecution of the action through representatives
would be unobjectionable. The damages suffered by the individual class members
may be relatively small; therefore, the expense and burden of individual litigation

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make it virtually impossible for them to redress the wrongs done to them. Plaintiffs
anticipates no difficulty in the management of this action as a class action.
FACTUAL ALLEGATIONS
44.

Steel is one of the most widely used building materials and one of the largest

commodity markets in the World and in the United States, comprising approximately $80
billion in annual domestic sales by United States producers, and approximately 100 million
tons of annual domestic raw steel production.
45.

The main product for the steel industry is “raw steel,” a necessary

component that is the primary input for a variety of steel products manufactured and sold
by the Defendants, including but not limited to the following: steel bars and rods; steel
pipes and other tubular products; galvanized steel products; steel plates; steel beams and
rails; flat steel sheets and coils; steel wire and wire rod; and a variety of other products
made from raw steel.
46.

These and other steel products are used in a multitude of manufacturing

industries, including; the auto manufacturing industry; lawn, farm and construction
machines; transportation; housing; construction; and household appliance manufacturing
industries; almost all heavy manufacturing industries use steel products.
47.

The Worldwide and United States price of steel products sold is a direct

result of the production, supply, and price of raw steel.
48.

Worldwide and in the United States, raw steel is made mostly by two

methods of production: (1) the basic oxygen furnace (changing iron ore into steel) and (2)
the electric arc furnace (recycling old steel scraps into a new useable steel).

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49.

The Basic Oxygen furnaces are operated by “integrated” steel

manufacturers. Integrated steel production mills combine iron ore (FeO3), limestone
(CaCO3), and coke (a source of Carbon) in a large “blast furnace,” which combine to
produce molten iron. The molten Iron is transferred to a basic oxygen furnace, where it
impurities are removed raw steel is the end product.
50.

Defendant Arcelor Mittal is the largest integrated producer of steel in the

United States, controlling approximately 20-25% of total domestic raw steel capacity
during the class period. Defendant U.S. Steel is the second largest integrated producer of
steel in the United States, controlling approximately 16% of total domestic raw steel
capacity.
51.

Another method of raw steel production is the electric arc furnace. Electric

arc production (also known as “mini-mill” production) produces raw steel by melting scrap
steel and other purifying agents in an electric arc furnace and recycling the materials in to
usable raw steel.
52.

Defendant Nucor is the largest steel recycling, electric arc (“mini-mill”)

producer in the United States, controlling approximately 21% of total domestic raw steel
capacity. Other major United States steel producers include Defendants Gerdau Ameristeel
(10%), AK Steel (5%), Steel Dynamics (4%), IPSCO (2.5%), and Commercial Metals (2%)
of total domestic raw steel capacity.
53.

In total, the Defendants control approximately 80-85% of total domestic

raw steel capacity. Raw steel production is and was sufficiently concentrated in the relevant
United States and Indirect purchaser states markets and so collusion among Defendants
was easily obtained throughout the class period.

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54.

Steel production has extremely high barriers to entry: steel production

startup costs are characterized by costly and lengthy new entry, including new mill
construction and startup costs exceeding $1billion. Steel production is vigorously
controlled by federal environmental laws and regulations, and is insulated from foreign
competition by significant transportation costs (including ocean freight rates) and trade
barriers (including import duties).
55.

U.S. Steel admitted during the class period that a distinct geographic market

for steel products is in the United States due to “freight” and other import costs.
DEFENDANTS’ ILLEGAL CONDUCT
56.

During the Class Period, the exact dates being unknown to Plaintiffs,

Defendants and their Co-Conspirators engaged in a continuing contract, combination, or
conspiracy with respect to the production and sale of steel products in the United States,
Consumer Protection States, and in the Indirect Purchaser States in an unreasonable
restraint of interstate trade and commerce, in violation of Section 1 of the Sherman Act, 15
U.S.C. §1, The Clayton Act and Indirect Purchaser State antitrust laws and State Consumer
Protection laws.
57.

The combination and conspiracy consisted of an agreement among the

Defendants and their Co-Conspirators, the substantial terms of which were to restrict output
and to fix, raise, stabilize, and maintain artificially high levels of prices for steel products
in the United States, in the Indirect Purchaser states, and in the consumer protection states.
58.

Between 2000 and 2004, a series of bankruptcies, mergers, and acquisitions

consolidated what previously had been a fragmented competitive market. Defendants

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Mittal Steel, U.S. Steel, and Nucor came through this time as the major domestic producers,
all together controlling approximately 55% of domestic raw steel production capacity.
59.

The industry’s rapid change and consolidation coincided with strong

demand, prices, and earnings through mid-2004, before pricing began to decline in the
latter part of 2004.
60.

Then, in the first half of 2005, Mittal Steel USA (the largest domestic

producer and predecessor of Defendant Arcelor Mittal USA) hatched a scheme to improved
industry “discipline” to improve prices and profits in the United States steel market. In
short order, senior Mittal Steel executives believed that the industry should limit its total
raw steel output in an effort to reduce supply and increase steel prices.
61.

Lakshmi Mittal, chairman and owner of Mittal Steel, on February 11, 2005,

explained his company’s strategy: “Mr. Mittal said the growing consolidation in the sector,
led by his group, had led to a greater focus on profitability, making companies more likely
to cut output than prices in any downturn.” This gave a signal to the other steel producers.
62.

Mittal Steel knew that it could not, on its own, control the price of steel in

the United States, and knew that price and supply stabilization required the major producers
to take coordinated action. In deference to this idea, senior Mittal executives conspired
with other Defendants to limit the industry’s total production and output. Then, on March
1, 2005, Mittal Steel USA executive Louis Schorsch spoke at a steel industry meeting in
Chicago and criticized the industry’s traditional business model, which “ensured that most
producers would cut price before reducing volume.”
63.

Mr. Schorsch, later stated that 2004-2005 was a “watershed” period,

marking “the resolution of many of these structural issues” because “consolidation has

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improved the industry structure and should ultimately lead to better conduct and therefore
better performance.” Mr. Schorsch continued: “Ultimately, if we are going to see improved
conduct and thus improved performance, it will only be because the consolidation we have
undergone encourages a change in behavior to match the industry structure. This means an
emphasis on value instead of just cost, a focus on profits rather than tons, and an ability to
manage strategically rather than just for the short term.” Mr. Schorsch concluded by calling
on the industry to “respond to market fluctuations” with “adjustments in operating rates.”
In response to falling prices, Mr. Schorsch asked other producers to avoid “an inevitable
‘race to the bottom,’” and to instead cut production at “marginal facilities.”
64.

In an article published in the April 27, 2005 edition of the Financial Times,

Lakshmi Mittal reported that the “steel industry has become more disciplined, with
companies showing themselves more willing to cut production (at times of softening
demand) so that profitability is kept reasonably high.”
65.

On May 11, 2005, Malay Mukherjee, Chief Operating Officer of Defendant

Mittal delivered the “Keynote Address” at AISTech 2005, hosted by the Association for
Iron & Steel Technology (“AIST”) in Charlotte, North Carolina, before a sold-out crowd
exceeding 800 people, including CEOs from Defendants U.S. Steel, Nucor, Steel
Dynamics, Gerdau, and Commercial Metals. Mr. Mukherjee stated that “what is needed
from the industry is a disciplined approach to bringing on supply and managing capacity.
A better collective understanding of the microeconomics of our industry—meaning the
cost structure and other aspects of the supply side, the likely scenarios for demand growth
and what these imply for fair, long-run prices—will help ensure that we achieve a better
match with demand, more stable price levels and a financially healthier industry overall.”

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66.

A panel of senior executives, including Keith E. Busse of Defendant Steel

Dynamics.; Phillip E. Casey, chairman of the board and chief executive of Defendant
Gerdau; Daniel R. DiMicco, vice chairman, president, and chief executive officer of
Defendant Nucor; and John P. Surma, Jr., president and chief executive officer of
Defendant U. S. Steel, spoke at a “Town Hall Forum” hosted by the ASIT at its conference
in Charlotte on Tuesday, May 10, 2005. Mr. DiMicco characterized 2004 as “really a
blowout year,” crediting “consolidation” as “driving us in the direction where we can
become a healthier industry both domestically and globally.” Mr. Busse declared that
“consolidation has mattered greatly,” and predicted that …you’ll see consolidation
continue.” He added: “We hit a home run in 2004, but prosperity is sustainable. We’re no
longer having to live with the desperate acts of dying men or the companies that believe
the next 100,000 tons they sell will be their salvation.”
67.

Seven days later, on May 16-17, 2005, steel executives met in Washington,

DC, for the American Iron and Steel Institute (“AISI”) annual meeting, a trade association
whose members include Defendants Arcelor Mittal, Nucor, AK Steel, U.S. Steel, and Steel
Dynamics. The trade association’s past Chairmen include Mittal Steel USA CEO Louis
Schorsch, U.S. Steel CEO John Surma, Nucor CEO Dan Di Micco, and the former CEO
of IPSCO, David Sutherland.
68.

After these meetings concerning the need to limit industry output, Mittal

Steel and U.S. Steel curtailed several domestic blast furnaces in May 2005 in order to
reduce the market supply of steel. Then, approximately one month later, from June 20-22,
2005, senior executives from each Defendant convened in New York City for the Steel
Success Strategies XX trade conference. According to Lakshimi Mittal, Steel Success

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Strategies brings together “the most influential stake holders in the steel industry
today....this event [is] a must-attend for anyone involved in the industry.”
69.

Attendees of the June 2005 Steel Success Strategies conference was a

laundry list of the major producers high level executives including: Lakshmi Mittal,
Chairman and CEO of Mittal Steel; Louis Schorsch, CEO of Mittal Steel USA; Daniel R.
DiMicco, Vice Chairman, President and CEO of Nucor; Phillip E. Casey, Chairman and
CEO of Gerdau Ameristeel; Keith Busse, President and CEO of Steel Dynamics, Inc.;
James L. Wainscott, President and CEO of AK Steel; David Sutherland, President and CEO
of IPSCO; and executives and/or senior managers from Defendants U.S. Steel and
Commercial Metals.
70.

During the June 2005 Steel Success Strategies conference, “industry leaders

discussed at length the changes the industry has gone through in the past 12-18 months
(especially the impact of consolidation and its ability to bring new found discipline to what
traditionally has been an unruly market).” Industry executives including Mittal Steel USA
CEO Louis Schorsch made the point that steel’s resurgence in demand and profitability
during the past 18 months can be sustained “but only if capacity and production are brought
under control now.” Additionally, at the same 2005 Steel Success Strategies conference,
Phillip Casey, chairman and CEO of Gerdau Ameristeel Corp., “urged that it’s time for the
industry to take advantage of the lessons learned from the recent wave of consolidation.”
Mr. Casey elaborated: “We have demonstrated the advantages of market discipline,
accelerated supply responsiveness, improved asset utilization, an improved network ability
to exchange operating knowledge and best operating practices, and an improved capital
structure. I think all these will improve the stability of our industry. We can take advantage

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of the education we have received and learn from it, and will find that fewer players and
tighter metallics will be beneficial for the overall industry.”
71.

Mittal Steel USA CEO Louis Schorsch also warned the industry against

“growing supply” at the 2005 Steel Success Strategies conference. Then, Mittal Steel CEO
Lakshmi Mittal explained at the conference that: “Today’s softening of the market is not
due to a sudden drop in demand but due to an inventory over hang situation created in the
market.” According to Mr. Mittal, “[t]his situation can be better dealt with through
consolidation of the industry. Consolidation will lead to companies adjusting production
levels to ensure that the inventory corrects itself and the state of equilibrium is reestablished. Thus if we as an industry can understand this phenomena we will be able to
build more sustainability in our operations.”
72.

Additionally, CEOs including Lakshmi Mittal from ArcelorMittal, John

Surma from U.S. Steel, and Dan DiMicco from Nucor normally met every quarter during
2004-2005 and beyond as members of the executive committee of the International Iron
and Steel Institute (“IISI”), a trade group comprised of President and CEO-level executives
from the world’s largest steel producers. In these trade group meetings Defendants
discussed capacity and output, including at an executive meeting in 2005 where Nucor
CEO Dan DiMicco cautioned the industry against oversupplying the market.
73.

In mid-2005, immediately after these meetings, the major domestic steel

producers took unprecedented and cooperative action. Mittal Steel USA (the largest United
States producer and predecessor of Defendants Arcelor Mittal and ArcelorMittal USA)
substantially curtailed production at several of its United States mills in mid-2005.

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74.

As of June 29, 2005 (one week after the trade meeting at which Lakshmi

Mittal explicitly called on the industry to “adjust… operating levels”), Mittal Steel USA
closed five of its twelve United States integrated blast furnaces, began operating other mills
at reduced rates, and announced that it would extend its North American production
cutbacks in the third quarter of 2005. According to Mittal, its objective in taking downtime
was to remove supply from the market place. Then, in July 2005, Mittal Steel USA operated
its United States mills at only 55% of available capacity.
75.

According to Lakshmi Mittal, Mittal Steel was the “[f]irst steel company to

announce production cutbacks, of one million tons, for third quarter 2005, maintaining
reduced production levels from the second quarter.” And then, U.S. Steel, the second
largest domestic integrated producer, cut output by reducing its United States operating
rate from approximately 90% in the first quarter of 2005 to about 75% in the second quarter
of 2005.
76.

Simultaneously with the Mittal Steel cutbacks, U.S. Steel, with the express

purpose of reducing the market supply of steel, closed at least two of its twelve United
States blast furnaces in the second quarter of 2005. In addition, U.S. Steel decreased output
production at several other facilities. Then, U.S. Steel extended its cutbacks on production
in the third quarter of 2005, when it operated its United States mills at only 72% of capacity.
Blatantly, U.S. Steel again stated that it had cut production to limit supply, while tight
supplies in the market persisted.
77.

In response to the mid-2005 cutbacks from Mittal and U.S. Steel, industry

experts remarked that “the degree to which integrated producers cut back is really
unprecedented.” Next, the mini-mill steel producers got into the act as Nucor, the largest

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United States mini-mill producer, followed suit by announcing a shutdown with downtime
on June 28, 2005.
78.

With Nucor following suit with downtime announcements at the same time

as its major competitors, and only one week after the Steel Success Strategies trade
meeting, the conspiracy started to take shape. Ultimately, Nucor operated its United States
mills at 79% of capacity in the second quarter of 2005 and only 81% of capacity in the
third quarter of 2005. In sharp contrast, Nucor operated its mills at approximately 96% of
full capacity in 2004. Nucor then explained that, along with other steel producers, it cut
production in mid- 2005 “to generate a reasonable profit per ton of steel sold.”
79.

Defendant Steel Dynamics, Inc., another and substantial mini-mill

producer, likewise “throttle[ed] back supply” in conjunction with the steel industry’s
coordinated mid-2005 downtime shutdown. According to CEO Keith Busse, this resulted
in “reduced production volume and reduced shipping volumes.” Further, in an article
published June 22, 2005, in the American Metal Market magazine, CEO Busse contended
that “supply-side dynamics are leading to more stabilization.” Specifically, “You had
supply-side cutbacks with what we did and the blast furnace outages that took production
out.” Mr. Busse claimed that “discipline by the mills earlier this year helped stabilize prices
following the lengthy slide.” He admitted that “his mill and others could have moved tone
at lower numbers, but chose to reduce production to bring supply and demand more into
balance. Mr. Busse conceded that this supply reduction strategy represented “a discipline
that didn’t exist 10 years ago.”
80.

Beginning in May 2005, Gerdau Ameristeel locked out workers for six

months at a mill in Beaumont, Texas, and also cutback at least one of its mills for several

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weeks in July and August 2005. Additionally, Gerdau Ameristeel CEO Phillip Casey stated
that prices stabilized in mid-2005 due to “better discipline in the market from the producers
in terms of adjusting the supply.” According to Mr. Casey, the industry’s “consolidated
producer base reacted with more discipline than you would have seen at any time in the
past.”
81.

On or about June 28, 2005, Defendant Commercial Metals cut back

production and joined its major competitors in announcing market-related downtime at
three mills in the United States. The trade press reported on July 20, 2005 that “U.S. steel
producers appear to be sticking to their pledges to reduce production” in an effort to restrict
supply. In response to the unprecedented production cutbacks, an experienced market
analyst surveyed the industry’s mid-2005 downtime and reported having “never seen such
a rapid drop in output...clearly this is unprecedented in our 30-year history analyzing this
sector.”
82.

Additionally, the trade press reported, “In 2005, many U.S. mills, led to

some degree by U.S. Steel, Mittal and Nucor, scaled back production when spring time
service center inventory levels were high. The production cutbacks...had the effect of
stabilizing pricing. In years past, mills often cut prices to move tons when service center
inventories reached similar levels. The mills trumpeted the success of 2005 as evidence of
the new found business strategy and market discipline.”
83.

The mid-2005 industry-wide production cutbacks were against Defendants’

individual competitive interests and, at all relevant times during the class period, the market
price of steel was substantially higher than Defendants’ marginal cost of production. Put

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another way, Defendants could have produced and sold steel products at a significant
operating profit rather than taking costly market downtime in their mills.
84.

The shutdown of a mill is extremely costly because production and revenue

are lost, while the fixed costs (including facility, labor, maintenance and other overhead
costs) remain steady. In a competitive market place, the Defendants would have operated
their mills at a profit and competed with each other for market share, rather than incurring
these significant downtime costs, by not producing steel to their full capacity. Additionally,
Defendants’ coordinated mid-2005 mill shutdowns did not represent a competitive
unilateral business strategy because no domestic steel producer had sufficient market
power to control the price of steel on its own. As a Mittal Steel executive explained, the
participation of other producers was necessary and played an “important” role in reducing
supply and stabilizing the market.
85.

In addition, lack of demand for steel cannot be blamed for the production

cutbacks because, at all relevant times, annual domestic demand for steel far exceeded the
United States production capacity of Defendants and other domestic producers. Also, at all
relevant times during the class period, there was a shortage of steel in the United States
market. According to data published by the AISI trade association, annual domestic
demand for steel significantly exceeded domestic production during every year of the
conspiracy period. Defendants’ cooperative down time exacerbated this supply shortage,
squeezing the market and inflating the prevailing market price of steel.
86.

The domestic manufacturers and other steel purchasers experienced

shortages and volume restrictions for steel, resulting from the industry’s mid-2005
downtime. Defendants’ mid-2005 downtime (implemented just after public and private

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meetings concerning the need for industry-wide supply “discipline,” at a time when no
producer could control the price of steel on its own, when domestic demand for steel far
exceeded domestic supply, and also when, absent collusion, production and competition
would have been more profitable than costly mill shutdowns) is evidence of an agreement
among Defendants to drive up prices by artificially reducing the market supply of steel. By
agreeing to work in unison to limit production on an industry-wide basis, Defendants were
able to restrict the domestic supply of steel and artificially inflate its price.
87.

Defendants’ coordinated output restraints had their intended impact on the

market price of steel. After the industry’s mid-2005 down time, the bench mark price of
hot rolled steel sheet increased by about 25%, i.e., from about $440 in July 2005 to $560
in September 2005.
88.

In response to this price increase, Mittal Steel explained that the industry’s

mid-2005 production cutbacks “led to price stabilization in August” 2005 and that “Prices
are stabilizing....That is why producers are announcing price increases.”
89.

In August 2005, the trade press reported on price increases imposed by U.S.

Steel, Nucor, Steel Dynamics, and others.
90.

According to these reports, “Steel producers cut back production during the

first half of the year to bring steel supplies more in line with demand, leading to recent
price stabilization.”
91.

Similarly, Mittal Steel reported in November 2005 that “cuts in production

have enabled a significant price recovery over recent months.”
92.

Confirming the direct price impact of the industry’s mid-2005 production

curtailment, Nucor Executive Vice President Joe Rutkowski explained that “companies

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decided to curtail production to prop prices up.” Additionally, Mittal’s 2005 annual report
states: “We saw major players in both North America and Europe reducing production to
address the challenges presented by the market. These actions contributed to reducing the
inventory overhang, resulting in a price recovery in the latter part of 2005, a trend that has
continued into this year.”
93.

Mittal Steel explained that the industry-wide “cuts in production prove the

industry’s new focus is shareholder value.” Lakshmi Mittal then praised both Mittal’s
leadership and the industry’s collective supply discipline: “When the market were soft in
2005 Q2 and Q3, Mittal Steel and Arcelor has been clearly the leader who has cut
production and that really shows the resilience of the steel industry, that shows that the
industry is becoming much more sustainable than before.” Mr. Mittal then stated, “we have
seen that the industry stood on its feet through the challenges and the industry has
recovered.... The companies want to produce results to the shareholders, and I think that
they will be ready to cut production, if required[.]”
94.

In November 2005, Mr. Mittal stated “the behavior of the steel companies

and they seem to be behaving very well with following the production side and trying to
maintain the supply demand balance.... we have seen the inventory buildup last year and
since then the producers have been very cautious and careful in oversupply to the market
and we believe that an inventory buildup will not take place in the Americas.”
95.

The industry’s production “discipline” came at the expense of the domestic

manufacturing sector and other consumers of steel, which suffered from supply shortages
caused by the Defendants’ coordinated production cutbacks. Defendants now assert in the
trade press that “oversupply” somehow justified their downtime despite the fact that the

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domestic steel market was, in fact, undersupplied and had severe steel shortages during the
class period. In direct contrast to Defendants’ assertion, Steel Dynamics CEO Keith Busse
has explained that the United States market is fundamentally “steel short” and “we have to
remember we are still undersupplied, not oversupplied over here.”
96.

Defendants’ coordinated downtime added severity to the supply shortage.

As a Toyota representative stated in 2006 proceedings before the United States
International Trade Commission (“ITC”), “for the first time in my 19 plus years working
for Toyota, when we approached [steel] suppliers [in 2005] and told them that...we were
able to increase some of our volumes...we were met with no, we can’t support that.”
According to the Toyota representative, the steel industry’s production restrictions caused
a situation in which “two of our suppliers, citing capacity constraints, effectively imposed
a maximum volume commitment that is lower than the volume we sought.”
97.

Also in a surprising announcement, a Chrysler representative testified in

October 2006 that, “we at the Chrysler group have had consistent and increasing shortages
recently of products for, actually for committed tons. I get calls every Saturday, that famous
Friday night call or Saturday morning call, the plant’s running and we don’t have our steel
here. It happens throughout the week more frequently than we would like to have to deal
with....it started in earnest about a year ago and it’s gotten progressively worse.”
98.

Additionally, a purchasing manager for General Motors reported that the

resulting supply “shortages became sufficiently critical around the third quarter of ’05 that
we had to assemble a crisis center.”
99.

Likewise, a brief submitted to the ITC by the Motor and Equipment

Manufacturers Association and the Precision Metal forming Association stated that “23 out

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of 31 purchasers reported problems with supply, including being placed on allocation or
controlled order entry, and that such supply shortages have continued into 2006 [.]” The
steel consumers’ brief emphasized that “supply problems are ongoing;” that “U.S. steel
producers are still unable to supply all of U.S. steel consumers’ requirements;” and that
“there is a fundamental deficit in the domestic industry’s ability to supply U.S. demand.”
100.

Other steel customers reported major supply disruptions and being placed

on a restrictive supply “allocation” during the class period. These shortages of steel
supplies were caused and/or exacerbated by the domestic industry’s unprecedented
collusive cutbacks in mid-2005 and other later periods.
101.

After the industry’s mid-2005 downtime, prices for steel stayed high and

the market remained exceedingly profitable for producers through mid-2006. Then, on
February 23, 2006, Mittal Steel CEO Lakshmi Mittal explained that: “The industry has
changed immensely...there is a new discipline in the industry which means when demand
is soft, as happened in the second quarter of 2005, companies cut production to better
manage supply/demand.” Mr. Mittal stated: “I first spoke publicly about the need for
consolidation in the steel industry in 1998.... The industry had long been associated with
cyclicality, volatility and an inability to adjust supply to global demand. The result was
some of the lowest valuations of any sector of the stock market. Fast forward eight years
and thankfully the dynamics are changing. The benefits of a more global, consolidated
market are understood and supported. Considerable consolidation has taken place, most
notably in Europe, the U.S. and Japan. A number of multinational companies have been
created. The industry is less volume-focused and has built enough scale and scope to be
able to curtail production in times of overcapacity or weak demand. We have had a number

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of consecutive years of impressive profitability. Additionally, industry analysts praised
“the significant supply discipline for an industry that never had any discipline.”
102.

On May 7-9, 2006, executives including Louis Schorsch, CEO of Mittal

Steel USA; John Surma, CEO of U.S. Steel; and Dan DiMicco, CEO of Nucor met in Boca
Raton, Florida, for the annual meeting of the AISI trade organization, of which Mr.
Schorsch was Chairman.
103.

The following month, Lakshmi Mittal, CEO of Mittal, explained that

“definitely industry has been watchful and inventory levels are in control, and we believe
that industry will remain watchful, and they will be proactive whenever they see that the
market is softening[.]” Then in August 2006, Mr. Mittal stated that “going forward the
industry is getting geared to adjust their production and volume to maintain the prices.
They should not be oversupplying the market. Industry has become very conscious and
careful on their inventory levels and industry has shown in the last one and a half years that
whenever there has been higher inventory levels, the industry has announced production
cuts. And so is the policy of Arcelor Mittal....and we will continue with this policy because
both the company and the industry believes in maintaining the price to return adequate
returns to the shareholder.”
104.

The pattern would repeat itself in late-2006: steel prices began to decline

and the major United States producers intervened with remarkably coordinated production
cutbacks.
105.

In August 2006, Mr. Mittal predicted that “the industry is getting geared to

adjust their production and volume to maintain the prices,” and a purchasing manager for

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General Motors, one of the largest domestic purchasers of steel, stated that a “major,
integrated steel producer” had threatened to cut production rather than accept lower prices.
106.

From October 1-3, 2006, senior executives from the world’s major steel

producers met in Buenos Aires, Argentina, for the International Iron and Steel Institute
(“IISI”) annual meeting. Some of the executive committee members included CEO
Lakshmi Mittal of Arcelor Mittal, CEO John Surma from U.S. Steel, and CEO Dan Di
Micco from Nucor.
107.

On or about October 6, 2006, immediately after the IISI meeting, Arcelor

Mittal announced the indefinite shutdown of two United States blast furnaces for the
purpose of limiting supply. Within a small period of days, on or about October 4, 2006,
U.S. Steel closed a blast furnace in Illinois. Then, on or about October 9, 2006, U.S. Steel
closed another blast furnace at its Gary, Indiana facility. Finally, U.S. Steel operated its
United States mills at only 67% of capacity in the fourth quarter of 2006.
108.

Nucor operated its United States mills at approximately 92% of capacity in

the first three quarters of 2006 before cutting production to approximately 81% of capacity
in the fourth quarter of 2006. Nucor explained that, “Similar to past experience, the more
disciplined and profit driven flat-rolled industry is appropriately focused on pacing supply
to match consumer demand.” Then, Nucor joined its competitors in taking downtime and
publicly discussed its “production discipline during the fourth quarter.” Nucor curtailed
steel sheet production by at least 15% in the fourth quarter of 2006, which, according to
Nucor, “provided a more stable pricing environment.”
109.

Just as in mid-2005, Steel Dynamics participated by taking mill production

cutbacks in the third and fourth quarters of 2006. In its October 18, 2006 Press Release,

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Steel Dynamics referred to “recently announced supply side curtailments,” and predicted
that “fourth quarter shipping volumes may be somewhat lower than the third quarter,
primarily due to planned maintenance outages.” The Company thereafter reported that “in
the fourth quarter, Steel Dynamics, as well as other domestic producers, cut back
significantly on production.” In the Steel Dynamics Q3 2006 Earnings Conference Call
three days later, CEO Busse further declared that the ensuing production cuts “could be
significant; it could be on the order of 1 million, 1.5 million tons perhaps.”
110.

Gerdau Ameristeel also cut production at several of its United States mills

in the fourth quarter of 2006 for the purpose of reducing supply. Gerdau Ameristeel cut
output of steel bar and other “long” products by at least 10% in the fourth quarter of 2006
relative to the third quarter of 2006. In regards to “flat” products, Gerdau Ameristeel cut
production by “considerably more than 10%” in the fourth quarter of 2006 relative to the
third quarter of 2006. Hence, Gerdau Ameristeel estimated that it operated its United States
mills at only 60% of capacity in the fourth quarter of 2006.
111.

AK Steel was next to announce production downtime in the industry’s late-

2006 downtime, operating “somewhere on average about 8% below our total capacity.”
Like its other competitors, AK Steel explained that it cut production because “I don’t think
that really we are interested in getting supply and demand out of balance.”
112.

Commercial Metals also participated in the late-2006 downtime.

Commercial Metals operated at only 75-80% of capacity in the fourth quarter of 2006 and
did so for the purpose of reducing supply in the market place. Commercial Metals also
explained that U.S. mills were “disciplined with their outages” in late-2006.

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113.

Defendant IPSCO also participated in the late-2006 down time. On October

16, 2006, IPSCO announced mill curtailments, “falling in line with other companies that
are taking similar action.”
114.

In its December 13, 2916 Press Release, Steel Dynamics confirmed that it,

too, had cut production by operating “the flat roll mill at a slower pace in November and
December, with the mill’s capacity utilization declining to about 85 percent.” In its 2006
Annual Report dated April 2, 2007, CEO Busse states in his “Letter to our Shareholders”
that “Steel Dynamics, as well as other domestic producers, cut back significantly on
production.”
115.

An industry analyst stated that “Supply discipline on the part of the mills is

being imposed much more quickly than it was last year...The announcement by Mittal to
indefinitely idle two blast furnaces represents the final piece of a supply discipline scenario
unfolding over the past several weeks, an almost immediate response to higher-thannormal service center inventories...The breadth of this discipline is exceptionally
encouraging [.]”
116.

On October 18, 2006, a steel industry analyst reported that “U.S. mills have

reacted quickly...cutting production and moving up maintenance outages to take steel out
of the system.” Additionally, another industry analyst stated that Mittal had been successful
in “encouraging [its United States] peer group to take some down time in Q4 to clear up
the inventory.”
117.

Like mid-2005, the industry’s late-2006 and early-2007 downtime was

against each participating Defendant’s competitive self-interest, absent a conspiracy. At all
relevant times during the class period: (1) annual domestic demand for steel far exceeded

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available domestic steel supply and (2) the prevailing market price for steel was
substantially higher than Defendants’ marginal cost of production. Defendants therefore
could have operated their mills at a profit, and competed for market share, rather than
curtailing production and taking costly market downtime.
118.

United States manufacturers and other consumers suffered steel supply

shortages following the industry’s late-2006 and early-2007 downtime.
119.

In August 2007, a group of domestic auto parts manufacturers appeared

before the ITC to testify on behalf “of the many American hot-rolled steel purchasers that
are being squeezed by the steel mills’ market domination and shortening of supply...all to
the benefit of foreign auto parts makers.”
120.

The benchmark price of hot-rolled steel sheet surged from approximately

$510/ton in January 2007 to $580/ton in March 2007. This was by way of the market
pricing stabilization from the late-2006 and early-2007 industry downtime.
121.

Nucor CEO Dan Di Micco remarked in early-2007 that the industry had

displayed “more profit driven discipline than ever before in my 30 plus years in the
industry.”
122.

Additionally, on or about February 21, 2007, Arcelor Mittal CEO Lakshmi

Mittal stated that when “[w]e had softness in the U.S. market, the industry was able to
restrict production to keep prices stable.” Then in May 2007, Arcelor Mittal reported that
“most important are the prices and we see that the prices in North America have rebounded
nicely in response to our industry’s earlier production cut and are currently stable.” And
once again, at a mid-2007 trade meeting, Mr. Mittal called on fellow producers to “take a
moment to enjoy” the industry’s turn around, explaining: “We have successfully made

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considerable progress in consolidation. We have successfully demonstrated the benefits
that a more consolidated industry creates. We have successfully demonstrated our ability
to better manage supply and demand.”
123.

On May 9, 2007, the seven leading steel executives met in Pittsburgh,

Pennsylvania to discuss their industry’s “new operating model and the benefits of
consolidation.” The participants included Leonard Chuderewicz, Executive Vice President
of Mittal Steel USA; Larry T. Brockway, Vice President and Treasurer of U.S. Steel; Giffin
F. Daughtridge, Vice President at Nucor; Mark D. Millet, Executive Vice President of Steel
Dynamics; and Joseph D. Russo, Senior Vice President at IPSCO.
124.

At this meeting, this group discussed the industry’s successful downtime in

the fourth quarter of 2006 (including Mittal’s “decision to shut down three blast furnaces”
and U.S. Steel’s decision to operate “at 67 percent capacity”) and further praised supply
restriction as “a new industry operating model” and one of the “main reasons for optimism
about the steel industry’s future.”
125.

In New York City in June 2007, ArcelorMittal executive Louis Schorsch

addressed competing executives (including the CEOs of Nucor, U.S. Steel, and Steel
Dynamics) and praised the industry’s “disciplined” supply strategy. Mr. Schorsch stated
that, “the steel mills have to work to remain sustainable, and they need to adjust their
production rates so the price of steel doesn’t drop.” The other steel leaders attending this
meeting agreed that “they all need to work together to keep the prices high.” Then in
addition, Nucor CEO Dan Di Micco addressed competing executives and explained that
“when steel makers are tempted by the market and therefore fluctuate their prices, the

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growth in the industry will quickly decline.” And finally, Steel Dynamics CEO Keith Busse
commented that the industry had “entered a new age” characterized by “market discipline.”
126.

A new round of downtime production cutbacks ensued in mid-2007. These

industry-wide curtailments were once again against Defendants’ individual competitive
interest and artificially inflated the market price of steel. As an executive from Steel
Dynamics explained in October 2007, the industry’s “market discipline” in mid-2007, i.e.,
“mills reducing production,” facilitated another round of price increases later that year. In
another October 2007 statement, Steel Dynamics’ CEO Keith Busse reflects that producers
were coordinating not only on output but also on price. Mr. Busse stated that “[t]here are
some folks out there who are speaking with a forked tongue...They raised the prices and
then backed off. That hurt us in some areas, but we didn’t do it. We held the line.”
127.

Steel market analysts reported that “increased supply discipline” over the

summer months allowed Defendants to announce price increases effective in August and
September 2008. As steel prices continued their ascent and reached record highs in 2008,
Defendants continued to limit production artificially and cooperatively.
128.

A Business Week profile of Lakshmi Mittal remarked about the market and

the cooperative production discipline imposed by Mittal and other major producers: “In the
long run Lakshmi’s vision is an industry dominated by a handful of powerful companies,
strong enough to cut output rather than prices in a downturn.”
129.

Nucor reported record operating earnings of approximately $2.1 billion in

2005, followed by $2.2 billion in 2006, and $1.9 billion in 2007. Nucor’s stock value more
than tripled from approximately $25/share at the beginning of 2005 to a high of $83/share
in 2008.

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130.

U.S. Steel stated its “second highest earnings on record” in 2005, with

reported operating income of approximately $1.4 billion, followed by $1.78 billion in 2006,
and $1.2 billion in 2007. U.S. Steel’s stock value went from $50/share at the beginning of
2005 to a high of $196/share in 2008.
131.

For 2006, Steel Dynamics reported to its shareholders that it achieved

record shipments, record sales, record earnings, and record cash flow from operations. Net
sales increased 48 percent to $3.2 billion, and consolidated shipments grew 39 percent to
4.7 million tons. Net income increased 79 percent to $397 million. Its stock appreciated
83 percent, closing at $32.45.
132.

For 2007, Steel Dynamics reported to the Securities and Exchange

Commission net sales of $4.4 billion, and actual 2007 steel production of 5.0 million tons.
133.

The ongoing activities described above have been engaged in by Defendants

and their Co-Conspirators for the purpose of effectuating the unlawful arrangements to
restrict output and to fix, maintain, raise, or stabilize prices of steel products.
134.

Defendants’ unlawful cooperation with respect to the production and supply

of raw steel allowed Defendants to impose substantial (and often obviously parallel) price
increases and raw material surcharges during the Class Period. In addition, implementation
and monitoring of the conspiracy was facilitated by Defendants’ public and private
dissemination of output, supply, and pricing information; certain Defendants published
production and/or capacity utilization information in their quarterly and annual reports and
in press releases.
135.

Additionally, the AISI trade association facilitated the creation and

monitoring of the conspiracy by compiling detailed output and/or capacity utilization

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information and by maintaining a members-only website that published, inter alia, detailed
output and/or capacity utilization information. In addition, the Metals Service Center
Institute (“MSCI”) published steel inventory data that facilitated implementation of and
monitoring of the conspiracy.
136.

World Steel Dynamics, a steel consulting firm, published supply, demand,

cost, and output data that facilitated implementation of and monitoring of the conspiracy.
137.

During the Class Period, Defendants artificially increased the prices for

steel products and earned unusual and supracompetitive profits as a result of their collusive
and anticompetitive conduct.
INDIRECT PURCHASER ALLEGATIONS
138.

Defendants intended and knew that their combination, collusion, and

conspiracy affected indirect purchasers of steel as well as direct purchasers.
139.

Steel sold by Defendants in its various forms including sheets, bars, etc. is

primarily used in other manufacturing processes rather than being used as a final product.
The steel market exists primarily as a component for end products such as automobiles,
appliances, farm equipment, and various other end products. Demand for steel sold by
Defendants is driven by demand of various downstream markets such as automobiles,
appliances, and various other products and the steel market would not exist without these
downstream end product markets. Thus, the market for steel and steel products are
inextricably linked and intertwined because the demand for steel derives from the demand
of finished steel products.
140.

Defendants’ 10-K SEC filings confirm that many of their customers are

manufacturers of downstream end user products which drive demand for Defendants’ steel.

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Nucor, in its 2006 10-K, states “Our business supports cyclical industries such as the
commercial construction, energy, appliance and automotive industries. As a result,
downturns in the United States economy or any of these industries could materially
adversely affect our results of operations and cash flows.”
141.

Arcelor Mittal, in its 2007 20-F, states that “Steel prices are also sensitive

to trends in cyclical industries, such as automotive, construction, appliance, machinery,
equipment and transportation industries, which are the significant markets for
ArcelorMittal’s products.”
142.

Finally, US Steel states in its 2007 10-K, that “Many of U. S. Steel’s

customers are in cyclical industries such as automotive, appliance, container, construction
and energy. Future downturns in the economy in the United States, Canada or Europe or
any of these industries could reduce the need for U. S. Steel‘s products and adversely affect
our profitability.”
143.

Defendants are aware of various downstream markets as evidenced by their

statements in various SEC filings, and were also aware that any price increases by them
would be passed along to customers of these markets. In fact, Defendants knew and
intended that their price increases would be passed along to consumers of end use products
as otherwise Defendants’ conspiracy could not be successful. Defendants’ price increases
must have been passed on to consumers or the manufacturers would not have been able to
profitably manufacturer end use products which drive the demand for Defendants’ steel.
144.

It is well known that indirect purchasers bear the brunt of illegal price

increases from antitrust conspiracies through the pass-on of the charges from the direct
purchasers. Several commentators have confirmed this.

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145.

For example, Illinois Brick Co. v. Illinois, 431 U.S. 720, 749 (1977)

(Brennan, J., dissenting) stated that “the brunt of antitrust injuries is borne by indirect
purchasers, often ultimate consumers of a product, as increased costs are passed along the
chain of distribution.” Also, 2 Areeda, Hovenkamp & Blair, Antitrust Law ¶346, at 378
(2d ed. 2000) noted that in price fixing cases “consumers buying from an intermediary ...
are injured, often more than the intermediary, who may also be injured but for whom the
entire overcharge is a windfall.”
146.

Other articles have also commented on indirect purchaser pass-on of

conspiratorial overcharges as well. In Benston, Indirect Purchasers’ Standing to Claim
Damages in Price Fixing Antitrust Actions: A Benefit/Cost Analysis of Proposals to
Change the Illinois Brick Rule, 55 Antitrust L. J. 213, 217 (1986) the author stated that “It
is true that, in the long run, the final consumers are victims of the price fixers.” And Robert
G. Harris & Lawrence A. Sullivan, Passing on the Monopoly Overcharge: A
Comprehensive Policy Analysis, 128 U. Pa. L. Rev. 269, 292 (1979) stated that “[g]iven
what is known about the nature of cost functions in most industries, we can state
categorically that, as a general rule, all monopoly overcharges to direct purchasers who
simply resell the manufactured product will in the long run be passed on to the indirect
purchasers who consume the product”.
147.

Manufacturers of steel consumer products also have made statements as to

the importance of steel as a primary component of their products and a major raw material
cost in the production of steel products.

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148.

In Whirlpool’s, a manufacturer of household appliances, 2005 10K SEC

form it was stated that “[t]he primary materials used to produce and manufacture our
products are steel, oil, plastic resins, and base metals such as copper and zinc.”
149.

Ford Motor Company’s 2006 10K SEC form stated “Commodity price

increases, particularly for steel and resins (which are our two largest commodity exposures
and among the most difficult to hedge), have occurred recently and are continuing during
a period of strong global demand for these materials.”
150.

GM’s 2006 10K SEC form stated “We use various raw materials in our

business including corrosion-resistant steel, non-ferrous metals such as aluminum and
copper, and precious metals such as platinum and palladium.”
151.

When the price of raw materials including steel have risen, manufacturers

and retailers of steel products have passed the cost increases down to purchasers of steel
products. Many steel manufacturers have stated that they passed on raw material costs
down to consumers of steel products.
152.

GM’s 2006 10K SEC form stated: “We use various raw materials in our

business including corrosion-resistant steel, non-ferrous metals such as aluminum and
copper, and precious metals such as platinum and palladium. The prices for these raw
materials fluctuate depending on market conditions….Substantial increases in the prices
for our raw materials increase our operating costs, and to the extent they cannot be recouped
through increases in the prices of vehicles, could reduce our profitability.”
153.

Navistar’s, a semi-truck manufacturer, 2007 10-K SEC form stated: “We

try to anticipate price increases for the purchase of component parts used in the production
of our engines. In certain instances, we are able to pass commodity price increases on to

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our customers. During the four-year period ended October 31, 2007, we were exposed to
commodity price increases, particularly for aluminum, copper, precious metals, resins, and
steel.”
154.

Paccar’s, a semi-truck manufacturer, 2006 10K SEC form stated: “Higher

material costs from suppliers, including the impacts of higher crude oil, copper, steel,
aluminum and other commodities have generally been reflected in higher costs and sales
prices for new trucks.”
155.

Whirlpool’s 2006 10K SEC form stated: “The costs of key raw materials

such as steel, plastic, copper, aluminum, zinc and nickel, as well as their impact on
component parts have been, and are expected to remain, at elevated levels. We have been
addressing the higher cost environment with productivity improvements and new product
innovations, as well as cost-based price adjustments.”
156.

Electrolux’s 2006 20-F SEC form stated: “Electrolux is subject to risks

related to changes in commodity prices as the ability to recover increased cost through
higher pricing may be limited by the competitive environment in which Electrolux
operates. The recent development in many commodity markets has resulted in higher
prices, particularly for steel and plastics.”
157.

Deere and Company’s 2007 10K SEC form stated: “Changes in the

availability and price of raw materials (such as steel, rubber and fuel) used in the production
of the Company’s equipment could have an effect on its costs of production and, in turn,
on the profitability of the business.”
158.

A price increase and product update announcement dated November 3,

2007 and addressed to all Amana and Goodman dealers, stated: “Due to the continued

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commodity cost increases of raw materials such as copper, aluminum, steel, and fuels,
Goodman/Amana corporate has announced a 3 to 5 percent price increase on all product
and parts effective January 1, 2008.”

http://www.ralsupply.com/pdf/Goodman-

Amana_01-01-08_price_increase.pdf.
159.

Jay Penny, VP of retail sales, for Electrolux Home Products stated in a

March 30, 2005 letter to their dealers:
“March 30, 2005
Dear Valued EHP Customers,
As you know, raw material costs have continued to escalate. At EHP,
we have accelerated already aggressive cost-out initiatives and are
making good progress. Unfortunately, the rate and breadth of the
material increases have greatly exceeded our productivity gains. As
such, we will be raising wholesale prices on most EHP appliance
products approximately 5-10%, effective May 31, 2005. Specific
product category and model increases and the accompanying price
sheets
will
be
provided
to
you
shortly.
We appreciate your business and your continued support.
Sincerely Jay Penney, VP Sales, Electrolux Home Products”
Found at http://applianceadvisor.com/second-round-price-increases-confirmed/297.
160.

Additionally, on September 19, 2006, John Harris, at the United States

Government Office of Health and Consumer Goods, authored an outlook paper for major
appliances which states in part: “Prices for most appliance categories fell steadily over the
past decade until recently…. It is interesting to note that the prices for most appliance
categories have been rising since at least 2004 as rising commodity prices have begun to
force appliance price hikes.”
161.

The preceding paragraphs show that the price of steel products increased at

the same time that steel prices increased due to the Defendants’ price fixing scheme.

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162.

Further, it is well known that retailers typically follow a “markup rule”

where cost increases are necessarily passed through to the consumer because a product is
priced according to a certain markup percentage from the costs that retailer was charged.
163.

The costs of the steel is traceable through the manufacturing and distribution

chain, and the Defendants, through the manufacturers and retailers, pass on the price
increase of the steel to the end customer. This is evident from the quotes above and evident
from the direct consumer price increases to products as the raw steel prices from the
Defendants went up during the class period.
164.

Additionally, these statements make it quite clear that steel is an extremely

important material for these steel products in terms of both raw material cost and
functionality. There is no suitable substitute for steel in these products.
165.

The steel in the Steel Products is also traceable and not consumed in the

manufacturing process; for every steel product, any person can identify the steel in the
product without hesitation. The steel from the Defendants has been generally only bent,
formed, and/or painted or treated to prevent oxidation and is similar to the original form
that was produced by Defendants. With that, the steel is identifiable in all aspects from
Defendant to manufacturer to end consumer.
FRAUDULENT CONCEALMENT
166.

The running of any Statute of Limitations has been suspended with respect

to any claims which the Plaintiffs and other members of the Class have sustained as a result
of the unlawful combination and conspiracy alleged herein and with respect to their rights
to injunctive relief by virtue of the federal doctrine of fraudulent concealment. In addition
to any Statute of Limitations being tolled and suspended by the filing of the initial Class

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Action Complaint, Defendants, through various devices and techniques of secrecy,
affirmatively and fraudulently concealed the existence of the unlawful combination and
conspiracy alleged herein.
167.

As a result of the active concealment of the conspiracy by Defendants and

their co-conspirators, any and all applicable statues of limitations otherwise applicable to
the allegations herein have been tolled.
COUNT I
VIOLATION OF STATE ANTITRUST LAWS
168.

Plaintiffs incorporate and re-allege, as though fully set forth herein, each

and every allegation set forth in the preceding paragraphs 1-119 of this Complaint.
169.

Defendants’ intentional and purposeful anticompetitive acts that are

described above, including but not limited to collusion to limit production, to set prices,
and the actual act of price fixing, caused and was intended to cause Plaintiffs to pay
supracompetitive prices for Steel products in the Indirect Purchaser States.
170.

Defendants’ monopolistic and anticompetitive acts as described above are

in violation of the following state antitrust statutes:
171.

Defendants have violated Arizona’s state antitrust law, Ariz. Rev. Stat. Ann.

§44-1401, et seq., by virtue of the scheme alleged herein.
172.

Defendants have violated California’s state antitrust law, California

Business & Professions Code §16700, et seq., (the “Cartwright Act”), by virtue of the
scheme alleged herein.
173.

Defendants have violated the District of Columbia’s antitrust law, D.C.

Code Ann. §28-4502 et seq. Defendants’ combinations or conspiracies had the following

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effects: (1) Steel products competition was restrained, suppressed, and eliminated
throughout the District of Columbia; (2) Steel products prices were raised, fixed,
maintained and stabilized at artificially high levels throughout the District of Columbia;
(3) Defendants intended that their combination, collusion, and conspiracy affected indirect
purchasers of Steel products as well as direct purchasers; (4) Plaintiffs and members of the
Class of Steel products purchasers in the District of Columbia were deprived of free and
open competitions; and (5) Plaintiffs and members of the Class of Steel products purchasers
in the District of Columbia paid supracompetitive, artificially inflated prices for Steel
products.
174.

Defendants have violated Iowa’s Competition Law, Iowa Code §553.4, et

seq. Defendants’ combinations or conspiracies had the following effects: (1) Steel
products’ competition was restrained, suppressed, and eliminated throughout Iowa; (2)
Steel products’ prices were raised, fixed, maintained and stabilized at artificially high
levels throughout Iowa; (3) Defendants intended that their combination, collusion, and
conspiracy affected indirect purchasers of Steel Products, as well as direct purchasers; (4)
Plaintiffs and members of the Class of Steel products purchasers in Iowa were deprived of
free and open competitions; and (5) Plaintiffs and members of the Class of Steel products
purchasers in Iowa paid supracompetitive, artificially inflated prices for Steel products.
175.

Defendants have violated Kansas Statutes §50-112.

176.

Defendants have violated Maine’s antitrust law, Me. Rev. Stat. Ann.

10§1104(1). Defendants’ combinations or conspiracies had the following effects: (1) Steel
products’ competition was restrained, suppressed, and eliminated throughout Maine; (2)
Steel products’ prices were raised, fixed, maintained and stabilized at artificially high

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levels throughout Maine; (3) Defendants intended that their combination, collusion, and
conspiracy affected indirect purchasers of Steel products as well as direct purchasers; (4)
Plaintiffs and members of the Class of Steel products purchasers in Maine were deprived
of free and open competitions; and (5) Plaintiffs and members of the Class of Steel products
purchasers in Maine paid supracompetitive, artificially inflated prices for Steel products.
177.

Defendants have violated Michigan Compiled Laws §445.772. Defendants’

combinations or conspiracies had the following effects: (1) Steel products’ competition
was restrained, suppressed, and eliminated throughout Michigan; (2) Steel products’ prices
were raised, fixed, maintained and stabilized at artificially high levels throughout
Michigan; (3) Defendants intended that their combination, collusion, and conspiracy
affected indirect purchasers of Steel products as well as direct purchasers; (4) Plaintiffs and
members of the Class of Steel products purchasers in Michigan were deprived of free and
open competitions; and (5) Plaintiffs and members of the Class of Steel products purchasers
in Michigan paid supracompetitive, artificially inflated prices for Steel products.
Accordingly, Plaintiffs and members of the Class of Steel products purchasers in Michigan
seek all relief under Michigan Comp. Laws Ann. §§445.778(2).
178.

Defendants have violated Minnesota Statutes § 325D.52.

179.

Defendants have entered into agreements in restraint of trade in violation of

Mississippi Code Ann. §75-21-1, et seq. Defendants’ combinations or conspiracies had the
following effects: (1) Steel products’ competition was restrained, suppressed, and
eliminated throughout Mississippi; (2) Steel products’ prices were raised, fixed, maintained
and stabilized at artificially high levels throughout Mississippi; (3) Defendants intended
that their combination, collusion, and conspiracy affected indirect purchasers of Steel

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products as well as direct purchasers; (4) Plaintiffs and members of the Class of Steel
products purchasers in Mississippi were deprived of free and open competitions; and (5)
Plaintiffs and members of the Class of Steel products purchasers in Mississippi paid
supracompetitive, artificially inflated prices for Steel products.
180.

Defendants have violated Nebraska antitrust law, Neb. Rev. Stat. Ann § 59-

801, et seq. Defendants’ combinations or conspiracies had the following effects: (1) Steel
products’ competition was restrained, suppressed, and eliminated throughout Nebraska; (2)
Steel products’ prices were raised, fixed, maintained and stabilized at artificially high
levels throughout Nebraska; (3) Defendants intended that their combination, collusion, and
conspiracy affected indirect purchasers of Steel products as well as direct purchasers; (4)
Plaintiffs and members of the Class of Steel products purchasers in Nebraska were deprived
of free and open competitions; and (5) Plaintiffs and members of the Class of Steel products
purchasers in Nebraska paid supracompetitive, artificially inflated prices for Steel
products.
181.

Defendants have violated Nevada antitrust law, Nev. Rev. Stat. Ann.

§598A.210.
182.

Defendants have violated New Mexico antitrust law, N.M. Stat. Ann. §57-

1-3(A)& (C).
183.

Defendants have violated New York General Business Law §340, et seq.

Defendants’ combinations or conspiracies had the following effects: (1) Steel products’
competition was restrained, suppressed, and eliminated throughout New York; (2) Steel
products’ prices were raised, fixed, maintained and stabilized at artificially high levels
throughout New York; (3) Defendants intended that their combination, collusion, and

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conspiracy affected indirect purchasers of Steel products as well as direct purchasers; (4)
Plaintiffs and members of the Class of Steel products purchasers in New York were
deprived of free and open competitions; and (5) Plaintiffs and members of the Class of
Steel products purchasers in New York paid supracompetitive, artificially inflated prices
for Steel products.
184.

Defendants have violated North Carolina Gen. Stat. §75-16. Defendants’

combinations or conspiracies had the following effects: (1) Steel products’ competition
was restrained, suppressed, and eliminated throughout North Carolina; (2) Steel products’
prices were raised, fixed, maintained and stabilized at artificially high levels throughout
North Carolina; (3) Defendants intended that their combination, collusion, and conspiracy
affected indirect purchasers of Steel products as well as direct purchasers; (4) Plaintiffs and
members of the Class of Steel products purchasers in North Carolina were deprived of free
and open competitions; and (5) Plaintiffs and members of the Class of Steel products
purchasers in North Carolina paid supracompetitive, artificially inflated prices for Steel
products.
185.

Defendants have violated North Dakota antitrust law, N.D. Cent. Code Ann

§51-08.1, et seq. Defendants’ combinations or conspiracies had the following effects: (1)
Steel products’ competition was restrained, suppressed, and eliminated throughout North
Dakota; (2) Steel products’ prices were raised, fixed, maintained and stabilized at
artificially high levels throughout North Dakota; (3) Defendants intended that their
combination, collusion, and conspiracy affected indirect purchasers of Steel products as
well as direct purchasers; (4) Plaintiffs and members of the Class of Steel products
purchasers in North Carolina were deprived of free and open competitions; and (5)

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Plaintiffs and members of the Class of Steel products purchasers in North Carolina paid
supracompetitive, artificially inflated prices for Steel products.
186.

Defendants have violated South Dakota antitrust law, S.D. codified Laws

Ann. §§37-1-14.3 and 37-1-33.
187.

Defendants have violated Tennessee antitrust law, Tenn. Code Ann. §47-

25-106.
188.

Defendants have violated Utah antitrust law, Utah Code Ann. §76-10-919.

189.

Defendants have violated Vermont’s antitrust law, Vt. Stat. Ann.

9.9§2465(b). Defendants’ combinations or conspiracies had the following effects: (1) Steel
products’ competition was restrained, suppressed, and eliminated throughout Vermont; (2)
Steel products’ prices were raised, fixed, maintained and stabilized at artificially high
levels throughout Vermont; (3) Defendants intended that their combination, collusion, and
conspiracy affected indirect purchasers of Steel products as well as direct purchasers; (4)
Plaintiffs and members of the Class of Steel products purchasers in Vermont were deprived
of free and open competitions; and (5) Plaintiffs and members of the Class of Steel products
purchasers in Vermont paid supracompetitive, artificially inflated prices for Steel products.
190.

Defendants have violated West Virginia’s antitrust law, W.Va. code St. R.

§142-9-2.
191.

Defendants have violated Wisconsin Statutes §133.03, et seq. Defendants’

combinations or conspiracies had the following effects: (1) Steel products’ competition
was restrained, suppressed, and eliminated throughout Wisconsin; (2) Steel products’
prices were raised, fixed, maintained and stabilized at artificially high levels throughout
Wisconsin; (3) Defendants intended that their combination, collusion, and conspiracy

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affected indirect purchasers of Steel products as well as direct purchasers; (4) Plaintiffs and
members of the Class of Steel products purchasers in Wisconsin were deprived of free and
open competitions; and (5) Plaintiffs and members of the Class of Steel products purchasers
in Wisconsin paid supracompetitive, artificially inflated prices for Steel products.
192.

Class members in each of the States listed above paid supracompetitive,

artificially inflated prices for Steel products. As a direct and proximate result of
Defendants’ unlawful conduct, such members of the Class have been injured in their
business and property in that they paid more for Steel products than they otherwise would
have paid absent Defendants’ unlawful conduct.
193.

As a result of Defendants’ violations of the statutes set forth above,

Plaintiffs and the Class seek actual damages for their injuries caused by such violations in
an amount to be determined at trial. Plaintiffs and the Class seek treble damages (where
allowed by Statute) pursuant to the Indirect Purchaser States antitrust laws above.
194.

Defendants’ willful and unlawful conduct allows Plaintiffs and the Class to

seek attorneys’ fees in the Indirect Purchaser States where they are allowed by law.
Plaintiffs and the Class seek attorneys’ fees where they are allowed by law.
COUNT II
VIOLATION OF STATE CONSUMER PROTECTION
AND UNFAIR COMPETITION LAWS
195.

Plaintiffs incorporates and re-allege, as though fully set forth herein, each

and every allegation set forth in the preceding paragraphs of this Complaint.
196.

Defendants engaged in unfair competition or unfair, unconscionable, or

deceptive acts or practices, or conduct that is immoral, unethical, oppressive, or conduct
causing substantial injury to consumers. More particularly, Defendants’ deceptive
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practices as alleged herein include, but is not limited to, collusion between Defendants in
restricting production, setting prices, and actual price fixing with the intended purpose to
maintain supracompetitive pricing in the Steel products market. Defendants’ deceptive and
anti-competitive conduct resulted in higher consumer prices for Steel products because of
supracompetitive pricing by Defendants.
197.

Defendants have engaged in unfair competition or unconscionable,

deceptive acts or practices, or conduct that is immoral, unethical, oppressive, or conduct
causing substantial injury to consumers, in violation acts as described above, in violation
the following State consumer protection and unfair competition laws.
198.

Defendants have violated Alaska Statutes § 45.50.471, et seq.

199.

Defendants have violated Arkansas Code §4-88-101, et seq. During the

Class Period, Defendants engaged in unfair, unconscionable, deceptive, or fraudulent acts
or practices, or conduct that is immoral, unethical, oppressive, or conduct causing
substantial injury to Plaintiffs. Defendants possess a gross inequality of bargaining power
in the Steel products market and have refused to make any [Arkansas] class members aware
of, or comprehend, Defendants’ unlawful conduct.
200.

Defendants’ misconduct as described herein constitutes an unconscionable,

false or deceptive act or practice in business, commerce, or trade in violation of the
ADTPA. Ark. Code Ann. §§ 4-88-107, 108.
201.

Defendants have violated California Business & Professions Code §17200,

et. seq., (the “UCL”), by virtue of the scheme and conduct alleged herein. Defendants
engaged in unfair competition or unfair, unconscionable or deceptive acts or practices in
violation of the state consumer protection and unfair competition statues listed below.

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Defendants’ business acts and practices were centered in, carried out, effectuated, and
perfected mainly within the State of California and Defendants’ conduct injured all
members of the Class who purchased Steel products in California. Therefore, this claim
for relief under California law is brought on behalf of the Plaintiffs and the Class members
who purchased Steel products in California. Beginning on a date unknown to California
plaintiffs, but at least as early as January 1, 2005, and continuing to the present, Defendants
committed and continue to commit acts of unfair competition, as defined by Sections
17200, et seq. of the California Business and Professions Code, by engaging in the acts and
practices specified above. This claim is instituted pursuant to Sections 17203 and 17204
of the California Business and Professions Code, to obtain restitution from these
Defendants for acts, as alleged herein, that violated Section 17200 of the California
Business and Professions Code, commonly known as the Unfair Competition Law. The
Defendants’ conduct as alleged herein violated Section 17200. The acts, omissions,
misrepresentations, practices and non-disclosures of Defendants, as alleged herein,
constituted a common, continuous, and continuing course of conduct of unfair competition
by means of unfair or unlawful business acts or practices within the meaning of California
Business and Professions Code, Section 17200, et seq., including, but not limited to, the
following: the violations of Section 1 of the Sherman Act, as set forth above; (2) the
violations of Section 16720, et seq. of the California Business and Professions Code, set
forth above; Defendants’ acts, omissions, misrepresentations, practices and nondisclosures, as described above, whether or not in violation of Section 16720, et seq. of the
California Business and Professions Code, and whether or not concerted or independent
acts, are otherwise unfair, unconscionable or unlawful; Defendants’ acts or practices are

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unfair to consumers of Steel products in the State of California within the meaning of
Section 17200, California Business and Professions Code. California plaintiffs and each
of the California Indirect Purchaser Class members are entitled to full restitution and/or
disgorgement of all revenues, earnings, profits, compensation, and benefits that may have
been obtained by Defendants as a result of such business acts or practices. The illegal
conduct alleged herein is continuing and there is no indication that Defendants will not
continue such activity into the future. The unlawful and unfair business practices of
Defendants, and each of them, as described above, have caused and continue to cause
plaintiffs and the Class members who purchased Steel products in California to pay
supracompetitive and artificially-inflated prices for Vehicle Carrier Services. Plaintiffs
and the Class members who purchased Steel products in California suffered injury in fact
and lost money or property as a result of such unfair competition. The conduct of
Defendants as alleged in the Amended Consolidated Complaint violates Section 17200 of
the California Business and Professions Code.
202.

Defendants have violated Colorado Statute, Colo. Rev. Stat. §6-2-101.

203.

Defendants have violated Delaware Statute, Del. Code Ann. 6§2501-2598.

204.

Defendants have violated District of Columbia Code §28-3901, et seq.

Defendants agreed to, and did in fact, act in restraint of trade or commerce in a market that
includes the District of Columbia, by affecting, fixing, controlling, and/or maintaining, at
artificial and non-competitive levels, the prices at which Steel products was sold,
distributed, or obtained in the District of Columbia. The foregoing conduct constitutes,
“unlawful trade practices,” within the meaning of D.C. Code § 28-3904. Defendants’
unlawful conduct had the following effects: (1) Steel products’ price competition was

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restrained, suppressed, and eliminated throughout the District of Columbia; (2) Steel
products’ prices were raised, fixed maintained and stabilized at artificially high levels
throughout the District of Columbia; (3) Plaintiffs and the Class members who purchased
Steel products in the District of Columbia were deprived of free and open competition; and
(4) Plaintiffs and the Class Members who purchased Steel products in the District of
Columbia paid supracompetitive, artificially inflated prices for Steel products. As a direct
and proximate result of Defendants’ violations of law, Plaintiffs and the Class Members
who purchased Steel products in the District of Columbia suffered an injury and are
threatened with further injury. Defendants’ conduct constitutes unfair competition or
unfair or deceptive acts or practices in violation of District of Columbia Code §28-3901,
et seq. and, accordingly Plaintiffs and the Class members who purchased Steel products in
the District of Columbia seek all relief available under that statute.
205.

Defendants have violated Florida Stat. §501.201 et seq. which broadly

prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or commerce are hereby declared
unlawful.” §501.204(1). Defendants agreed to, and did in fact, act in restraint of trade or
commerce by unfairly and deceptively fixing, raising, stabilizing, and maintaining prices
of, allocating markets for, and restraining and manipulating the supply of Steel products at
supracompetitive levels all which constitute unfair and deceptive trade practices in
violation of [the FDUTPA]. Floridians were among the targets of the conspiracy.
206.

(a) Defendants engaged in commerce in Florida; (b) Defendants and their

co-conspirators secretly agreed to raise prices for Steel products sold to Florida consumers
by direct agreement and through artificial supply restraints on the entire Steel products

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market; (c) Florida consumers were targets of the conspiracy; (d) The secret agreements
were not known to Florida consumers; (e) Defendants: (i) made public statements about
the prices of Steel products that Defendants knew, or should have known, would be seen
by Florida consumers; (ii) such statements either omitted material information that
rendered the statements made materially misleading or affirmatively misrepresented the
real cause of price increases for Steel products; and (iii) Defendants alone possessed
material information that was relevant to Florida consumers, but failed or refused to
provide such information; (f) Due to Defendants’ unlawful trade practices in the State of
Florida, there was a broad effect on Florida consumer Class members who indirectly
purchased Steel products such that Florida consumer Class members have been injured
because they paid more for Steel products than they would have paid absent Defendants’
unlawful trade practices, acts, and conduct; (g) Due to Defendants’ unlawful trade practices
in the State of Florida, Florida consumer Class members who indirectly purchased Steel
products were misled to believe that they were paying a fair price for Steel products, or
that the price increases for Steel products were imposed for valid business reasons.
Similarly situated Florida consumers potentially were affected by Defendants’ unlawful
conduct;(h) Defendants knew, or should have known, that their unlawful trade practices
with respect to pricing Steel products would have an effect on Florida consumers; (i)
Defendants knew, or should have known, that their unlawful trade practices with respect
to pricing Steel products would have a broad affect causing Florida consumer Class
members who indirectly purchased Steel products to be injured by paying more for Steel
products than they would have paid absent Defendants’ unlawful trade practices and acts;

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and (j) Defendants’ consumer-oriented violations adversely affected the public interest in
the State of Florida.
207.

Defendants agreed to, and did in fact, act in restraint of trade or commerce

by unfairly and deceptively fixing, raising, stabilizing, and maintaining prices of, allocating
markets for, and restraining and manipulating the supply of Steel products at
supracompetitive levels.
208.

By reason of the foregoing, Defendants and their co-conspirators committed

actions that constitute unfair and deceptive trade practices in violation of F.S. § 501.204,
and substantially affecting trade and commerce throughout Florida.
209.

Defendants’ unlawful conduct has substantially affected Florida commerce

and had, inter alia, the following effects:
a.

Steel products’ price competition was restrained, suppressed, and/or

eliminated throughout Florida;
b.

The supply of Steel products was improperly limited, reduced

and otherwise manipulated;
c.

Steel products’ prices were raised, fixed, maintained, and

stabilized at artificially high, non-competitive levels throughout Florida;
and
d.

Florida Plaintiffs and members of the Indirect Purchaser State Class

in Florida were deprived of free and open competition. As a direct and
proximate result of Defendants’ unlawful and anticompetitive practices,
including combinations and contracts to restrain trade and monopolize the
relevant markets, Florida Plaintiffs and members of the Consumer

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Protection State Class in Florida have been injured in their business and/or
property in that they paid supracompetitive, artificially inflated prices for
Steel products.
210.

Defendants have violated Idaho Code § 48-601.

211.

Defendants have violated Maine Statute, Me. Rev. Stat. Ann. 5 §§205-A to

212.

Defendants have violated Massachusetts, Mass. Gen. Laws Ann. 93A §§1-

214.

11. Defendants agreed to, and did in fact, act in restraint of trade or commerce in a market
that includes Massachusetts, by affecting, fixing, controlling, and/or maintaining, at
artificial and non-competitive levels, the prices at which Steel products were sold,
distributed, or obtained in Massachusetts. The foregoing conduct constitutes, “unlawful
trade practices,” within the meaning of Mass. Gen. Laws Ann. 93A. Defendants’ unlawful
conduct had the following effects: (1) Steel products’ price competition was restrained,
suppressed, and eliminated throughout Massachusetts; (2) Steel products’ prices were
raised, fixed maintained and stabilized at artificially high levels throughout Massachusetts;
(3) Plaintiffs and the Class members who purchased Steel products in Massachusetts were
deprived of free and open competition; and (4) Plaintiffs and the Class Members who
purchased Steel products in Massachusetts paid supracompetitive, artificially inflated
prices for Steel products. As a direct and proximate result of Defendants’ violations of
law, Plaintiffs and the Class Members who indirectly purchased Steel products in
Massachusetts suffered an injury and are threatened with further injury. Defendants’
conduct constitutes unfair competition or unfair or deceptive acts or practices in violation

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of Mass. Gen. Laws Ann. 93A, et seq. and, accordingly Plaintiffs and the Class members
who purchased Steel products in Massachusetts seek all relief available under that statute.
213.

Defendants have violated Michigan, Mich. Comp. Laws. Ann. §445.901 to

445.922.
214.

Defendants have violated Montana Code § 30-14-101, et seq.

215.

Defendants have violated Nebraska Rev. Stat. Ann. §5-1601, et seq. and

Neb. Rev. Stat.§§87-301 to 87-306.
216.

Defendants have violated Nevada Rev. Stat. Ann. §598.0903 to 598A.

217.

Defendants have violated New Hampshire, N.H. Rev. Stat. §§358-A:1, et

218.

Defendants have violated New York Gen. Bus. Law §349 et seq.

seq.

Specifically: (a) Defendants engaged in commerce in New York; (b) Defendants and their
co-conspirators secretly agreed to raise prices for Steel products sold to New York
consumers by direct agreement and through artificial supply restraints on the entire Steel
products market; (c) New York consumers were targets of the conspiracy; (d) The secret
agreements were not known to New York consumers; (e) Defendants: (i) made public
statements about the prices of Steel products that Defendants knew, or should have known,
would be seen by New York consumers; (ii) such statements either omitted material
information that rendered the statements made materially misleading or affirmatively
misrepresented the real cause of price increases for Steel products; and (iii) Defendants
alone possessed material information that was relevant to New York consumers, but failed
or refused to provide such information; (f) Due to Defendants’ unlawful trade practices in
the State of New York, there was a broad effect on New York consumer Class members

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who indirectly purchased Steel products such that New York consumer Class members
have been injured because they paid more for Steel products than they would have paid
absent Defendants’ unlawful trade practices, acts, and conduct; (g) Due to Defendants’
unlawful trade practices in the State of New York, New York consumer Class members
who indirectly purchased Steel products were misled to believe that they were paying a fair
price for Steel products, or that the price increases for Steel products were imposed for
valid business reasons. Similarly situated New York consumers potentially were affected
by Defendants’ unlawful conduct;(h) Defendants knew, or should have known, that their
unlawful trade practices with respect to pricing Steel products would have an effect on
New York consumers that was not limited to Defendants’ direct customers; (i) Defendants
knew, or should have known, that their unlawful trade practices with respect to pricing
Steel products would have a broad affect causing New York consumer Class members who
indirectly purchased Steel products to be injured by paying more for Steel products than
they would have paid absent Defendants’ unlawful trade practices and acts; and (j)
Defendants’ consumer-oriented violations adversely affected the public interest in the State
of New York.
219.

Defendants have violated North Carolina’s Unfair and Deceptive Trade

Practices Act, N.C. Gen. Stat. §75-1.1, et. seq. Defendants have violated North Carolina
Gen. Stat. §75-1.1, et seq. Defendants agreed to, and did in fact, act in restraint of trade or
commerce in a market that includes North Carolina, by affecting, fixing, controlling, and/or
maintaining, at artificial and non-competitive levels, the prices at which Steel products was
sold, distributed, or obtained in North Carolina and took efforts to conceal their agreements
from Plaintiffs and the Class members who purchased Steel products in North Carolina.

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The foregoing conduct constitutes consumer-oriented deceptive acts or practices within the
meaning of North Carolina law, which resulted in consumer injury and broad adverse
impact on the public at large, and harmed the public interest of North Carolina consumers
in an honest marketplace in which economic activity is conducted in a competitive manner.
Defendants’ unlawful conduct had the following effects: (1) Steel products’ price
competition was restrained, suppressed, and eliminated throughout North Carolina; (2)
Steel products’ prices were raised, fixed maintained and stabilized at artificially high levels
throughout North Carolina; (3) Plaintiffs and the Class members who purchased Steel
products in North Carolina were deprived of free and open competition; and (4) Plaintiffs
and the Class Members who purchased Steel products in North Carolina paid
supracompetitive, artificially inflated prices for Vehicle Carrier Services. As a direct and
proximate result of Defendants’ violations of law, Plaintiffs and the Class Members who
purchased Steel products in North Carolina suffered an injury and are threatened with
further injury. Defendants’ conduct constitutes unfair competition or unfair or deceptive
acts or practices in violation of N.C. Gen. Stat. §75-1.1, et. seq. and, accordingly Plaintiffs
and the Class members who purchased Steel products in North Carolina seek all relief
available under that statute.
220.

Defendants have violated Vermont Stat. Ann. 9 §2453. Defendants agreed

to, and did in fact, act in restraint of trade or commerce in a market that includes Vermont,
by affecting, fixing, controlling, and/or maintaining, at artificial and non-competitive
levels, the prices at which Steel products was sold, distributed, or obtained in Vermont.
Defendants deliberately failed to disclose material facts to Plaintiffs and the Class member
who purchased Steel products in Vermont concerning Defendants’ unlawful activities and

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artificially inflated prices for Vehicle Carrier Services. Defendants owed a duty to disclose
such facts, and considering the relative lack of sophistication of the average consumer,
Defendants breached that duty by their silence.

Defendants misrepresented to all

consumers during the Class Period that Defendants’ Steel products prices were competitive
and fair. Defendants’ unlawful conduct had the following effects: (1) Steel products’ price
competition was restrained, suppressed, and eliminated throughout Vermont; (2) Steel
products’ prices were raised, fixed maintained, and stabilized at artificially high levels
throughout Vermont; (3) Plaintiffs and the Class Members who purchased Steel products
in Vermont were deprived of free and open competition; and (4) Plaintiffs and the Class
Members who purchased Steel products in Vermont paid supracompetitive, artificially
inflated prices for Steel products. As a direct and proximate result of Defendants’
violations of law, Plaintiffs an d the Class Members who purchased Steel products in
Vermont suffered an ascertainable loss of money or property as a result of Defendants’ use
or employment of unconscionable and deceptive commercial practices as set forth above.
That loss caused by Defendants’ willful and deceptive conduct, as described herein.
Defendants’ deception, including its affirmative misrepresentations and omissions
concerning the price of Steel Products, likely misled all consumers acting reasonably under
the circumstances to believe that they were purchasing Steel products at prices born by a
free and fair market. Defendants’ misleading conduct and unconscionable activities
constitutes unfair competition or unfair or deceptive acts or practices in violation of 9
Vermont §2451, et seq. and, accordingly Plaintiffs and the Class members who purchased
Steel products in Vermont seek all relief available under that statute.

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221.

Defendants have violated Wisconsin Stat. Ann. §§425.101 et seq. &

425.301 et seq.
222.

Class members in the States listed above paid supracompetitive, artificially

inflated prices for Steel Products. As a direct and proximate result of Defendants’ unlawful
conduct, Plaintiffs and the members of the Class have been injured in their business and
property in that they paid more for Steel products than they otherwise would have paid
absent Defendants’ unlawful conduct.
223.

As a result of Defendants’ violations of the laws listed above, Plaintiffs and

Class members in the States listed above are entitled to equitable relief, including
restitution and/or disgorgement of all revenues, earnings, profits, compensation and
benefits that may have been obtained by Defendants as a result of such business practices,
including compensable and such other damages in all States allowed by law.
224.

Additionally, Plaintiffs and the Class seek actual damages for their injuries

caused by these violations in an amount to be determined at trial.
225.

Defendants’ willful and unlawful conduct allow Plaintiffs and the Class to

recover attorneys’ fees in the Consumer Protection and Unfair and Deceptive Practices
States where they are allowed by law. Therefore, Plaintiffs and the Class seek attorneys’
fees where they are allowed by law.
COUNT III
UNJUST ENRICHMENT AND DISGORGEMENT OF PROFITS
226.

Plaintiffs incorporate and re-allege, as though fully set forth herein, each

and every allegation set forth in the preceding paragraphs of this Complaint.

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227.

Defendants have been unjustly enriched through overpayments by Plaintiffs

and the Class and the resulting profits reaped by Defendants as a direct result of such
overpayments. Plaintiffs’ and the Class’ detriment and Defendants’ unjust enrichment were
related to and flowed from the wrongful conduct alleged herein, including, without
limitation, Defendants’ unlawful and anti-competitive acts described above for the
purchase price of Steel Products.
228.

Under common law principles of unjust enrichment, Defendants should not

be permitted to retain the benefits conferred through over payments by Plaintiffs and Class
members. Plaintiffs and the Class accordingly are entitled to disgorgement of all profits
resulting from such overpayments and establishment of a constructive trust from which
Plaintiffs and Class members may seek restitution.
229.

Plaintiffs and the Class base their claims for unjust enrichment and

disgorgement of profits under common law principles of unjust enrichment recognized in
each of the 50 States, excluding Ohio and Indiana, and including the District of Columbia.
230.

Plaintiffs and the Class have no adequate remedy at law to seek restitution

under common law principles of unjust enrichment in the jurisdictions identified above.
DAMAGES
231.

During the Class Period, Plaintiffs and the Class purchased Steel Products

indirectly from Defendants, or their subsidiaries, agents, and/or affiliates, and, by reason
of the antitrust violations herein alleged, paid more for Steel Products than they would have
paid in the absence of such antitrust violations. The overcharge for the Steel Products
flowed through the direct purchasers as, when the costs of Steel Products went up the extra
amount was simply passed onto the indirect purchasers farther down the distribution chain

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until the end user. As a result, Plaintiffs and the Class have sustained damages to their
business and property in an amount to be determined at trial.
DEMAND FOR JURY
Pursuant to Federal Rule of Civil Procedure 38(b) and otherwise, Plaintiffs
respectfully demand a trial by jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs and the Class request as follows:
(a)

that this Court declare, adjudge, and decree this action to be a proper class

action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the Class
defined herein;
(b)

that this Court declare, adjudge, and decree that Defendants have committed

violations of state antitrust, consumer protection laws, and common law unjust enrichment
alleged herein;
(c)

that this Court award Plaintiffs and the Class treble damages for

Defendants’ violation of Indirect Purchaser States’ antitrust laws in an amount to be
determined at trial where they are allowed by law and actual damages where treble damages
are not allowed by law;
(d)

that this Court award Plaintiffs and the Class their actual damages for

Defendants’ violation of Consumer Protection Statutes, in an amount to be determined at
trial;
(e)

that this Court award damages to the Plaintiff Class to disgorge profits from

common law unjust enrichment claims from the states listed above;

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(f)

that this Court grant Plaintiffs and the Class the actual costs in prosecuting

this action, together with interest and reasonable attorney’s fees and costs; that this Court
grant such further and other relief as this Court deems just and proper.

DATED: Chicago, IL
April 26, 2016

Plaintiffs,

By:/s/ Marvin Miller_____________
Marvin A. Miller
Matthew E. Van Tine
Lori A. Fanning
Andrew Szot
MILLER LAW LLC
115 S. LaSalle Street, Suite 2910
Chicago, IL 60603
Tel: 312.332.3400
mmiller@millerlawllc.com
mvantine@millerlawllc.com
lfanning@millerlawllc.com
aszot@millerlawllc.com

Christopher Lovell (CL-2595)
Craig M. Essenmacher
Keith Essenmacher
Merrick Scott Rayle
LOVELL STEWART HALEBIAN
JACOBSON LLP
61 Broadway, Suite 501
New York, New York 10006
Tel:(212) 608-1900
clovell@lshllp.com
Interim co-lead counsel

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David E. Kovel
Daniel Hume
KIRBY McINERNEY LLP
825 Third Avenue, 16th Floor
New York, NY 10022
Tel: (212) 371-6600
dkovel@kmllp.com
dhume@kmllp.com
Shpetim Ademi
Mark Eldridge
ADEMI & O’REILLY, LLP
3620 East Layton Avenue
Cudahy, Wisconsin 53110
Tel: (414) 482-8000
Email: sademi@ademilaw.com
meldrige @ademilaw.com
Eric D. Barton
WAGSTAFF CARTMELL
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Tel: (816) 701-1100
EBarton@wagstaffcartmell.com
Peter Safirstein
Elizabeth Metcalf
SAFIRSTEIN METCALF LLP
1250 Broadway, 27th Floor
New York, NY 100001
1-800-221-0015

Daniel E. Gustafson
Daniel C. Hedlund
David A. Goodwin
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Tel: (612) 333-8844
Fax: (612) 339-6622
E-mail:
dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
dgoodwin@gustafsongluek.com

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CERTIFICATE OF SERVICE BY ELECTRONIC MEANS
I, Marvin A. Miller, one of the attorneys for Plaintiffs, hereby certifies that on
April 26, 2016, service of the foregoing document was accomplished pursuant to ECF as
to Filing Users and I shall comply with LR 5.5 as to any party who is not a Filing User or
represented by a Filing User.
/s/ Marvin A. Miller
Marvin A. Miller

68