Concrete Products

APR 2012

Concrete Products covers the issues that attract producers of ready mixed and manufactured concrete focusing on equipment and material technology, market development and management topics.

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EDITORIAL DON MARSH, EDITOR Concrete products Ten big defendants and then there were none The U.S. District Court for the Southern District of Florida, Miami, can tend to more pressing matters than In Re Florida Cement and Concrete Antitrust Litigation, a case of alleged producer price-fixing and market allocation originally scheduled for jury trial this month. Taxpayers will be spared the expense, while court staff and jurors are relieved of dis- covering a recurring obstacle in 25 months of case proceed- ings: Insufficient evidence to support alleged illegal behavior among Sunshine State producers with integrated cement and ready mixed businesses. Defense counsel stood ready to counter at trial plaintiffs' claims and prove the immense difficulties their clients would have executing a conspiracy that would boost profits in ready mixed concrete. Too many relationships, loyalties and commitments sprinkled among too many parties, customers, and disparate markets. Perhaps not admissible in court, we can add that defendants' man- agement teams are too smart to risk heavy fines, career ruin or prison for a few extras dollars per yard. In mid-March, Florida District Court filings, Florida Antitrust parties con- firmed a settlement they reported the prior month to the U.S. Court of Appeals for the Eleventh Circuit, Atlanta. The settlement is among counsel for plain- tiffs, a group of small Florida contractors, and defendants, Cemex Corp., Florida Rock Industries, Tarmac America LLC and Prestige AB Management. Terms were not disclosed, nor subject to court approval. Florida Antitrust arrived at the appellate court after the district court denied class certification for two plaintiffs groups, Direct Purchaser and Indirect Pur- chaser. A concurrent ruling in early-January allowed both groups to petition the Eleventh Circuit Court for a possible review of the certification decision, an option Direct Purchaser counsel exercised. A class action would have en- abled plaintiffs to pursue antitrust law violation claims—and injunctive relief plus damages—with greater economy than the "individualized inquiry" to which they were bound by the Florida court ruling. The case emerged in January 2010 from complaints alleging that 10 inte- grated cement and ready mixed concrete producers had engaged in a price- fixing and market allocation conspiracy throughout Florida, dating to at least 2000. In July 2010, plaintiffs withdrew claims against Lafarge North America and Holcim (US) Inc., and scaled the purported conspiracy timeline to 2004– 2009. The following month saw the court dismiss six defendants, or sub- sidiaries of the main defendants named in the original complaint, who were alleged to have participated in cement price-fixing and market allocation. In January 2011, plaintiffs amended their complaint, alleging a ready mixed price-fixing and market-allocation conspiracy among the final four defendants during 2008–2009. In a late-2011 hearing on the class certification, their at- torneys entered an expert witness' analysis of transactions during the pur- ported conspiracy window; it demonstrated how a variety of customers had purchased ready mixed at levels below those indicated in $25/yd. price in- creases defendants had announced for fall 2008. The price increase announcements were central to plaintiffs' claims. In their original motion to dismiss the case, defense counsel countered by citing the Supreme Court's view of uniform price increases among competitors. Defined in high court precedent as "conscious parallelism," such activity is to be ex- pected in concentrated commodity industries, attorneys contended. Defense counsel also invoked the most recent Supreme Court ruling with major an- titrust case implications, 2007's Bell Atlantic Corp. v. Twombly, which set a high threshold of plausibility for plaintiff claims. As Florida Antitrust fades, may the court precedents that derailed its path to trial continue to protect from sketchy claims the honest competitors behind nearly every yard this industry produces. dmarsh@concreteproducts.com 2 | APRIL 2012 WWW.CONCRETEPRODUCTS.COM mining media international editorial office 11555 Central Parkway, Suite 401 Jacksonville, Florida 32224 U.S.A. P: +1.904.721.2925 F: +1.904.721.2930 EDITOR Don Marsh, dmarsh@mining-media.com MANAGING EDITOR Steve Prokopy, sprokopy@mining-media.com ASSISTANT EDITOR Josephine Smith, jsmith@mining-media.com GRAPHIC DESIGNER Christine Hensley, chensley@mining-media.com EDITORIAL DIRECTOR Steve Fiscor, sfiscor@mining-media.com Mining Media International corporate office 8751 East Hampden Avenue, Suite B-1 Denver, Colorado 80231 U.S.A. P: +1-303-283-0640 F: +1-303-283-0641 PRESIDENT/PUBLISHER Peter Johnson, pjohnson@mining-media.com VP-SALES & MARKETING John Bold, jbold@mining-media.com U.S., CANADA SALES Bill Green, bgreen@mining-media.com GERMANY SALES Gerd Strasmann, strasmannmedia@t-online.de SHOW MANAGER Tanna Holzer, tholzer@mining-media.com AD TRAFFIC MANAGER Erica Freeman, efreeman@mining-media.com Concrete Products, Volume 115, Issue 4 (ISSN 0010-5368 USPS 128-180) is published monthly by Mining Media Inc., 10 Sedgwick Drive, Englewood, Colorado 80113 (mining-media.com). Periodicals postage paid at Engle- wood, CO, and additional mailing offices. Canada Post Publications Mail Agreement No. 40845540. Canada return address: Station A, PO Box 54, Windsor ON N9A 6J5, Email: circulation@mining-media.com. Current and back issues and additional resources, including subscription request forms and an editorial calander, are available online at www.concreteproducts.com. SUBSCRIPTION RATES: Free and controlled ciruclation to qualified sub- scribers. Non-qualified persons may subscribe at the following rates: USA and Canada, 1 year $72.00, 2 year $119.00, 3 year $161.00. For subscriber services or to order single copies, write to Concrete Products, 8751 East Hampden, Suite B1, Denver, CO 80231 USA; call +1.303.283.0640 (USA) or visit www.mining-media.com. ARCHIVES AND MICROFORM: This magazine is available for research and retreival of selected archived articles from leading electronic databases and online search services, including Factiva, LexisNexis, and ProQuest. For mi- croform availability, contact ProQuest at 800-521-0600 or +1.734.761.4700, or search the Serials in Microform listings at www.proquest.com. POSTMASTER: Send address changes to Concrete Products, P.O. Box 1337, Skokie, IL 60076. REPRINTS: Mining Media Inc, 8751 East Hampden Avenue, Suite B1, Denver, CO 80231 USA; P: +1.303.283.0640, F: 1+303.283.0641, www.mining- media.com. PHOTOCOPIES: Authorization to photocopy articles for internal corporate, personal, or instructional use may be obtained from the Copyright Clearance Center (CCC) at +1.978.750.8400. To obtain further information, visit www.copyright.com COPYRIGHT 2012: Concrete Products ALL RIGHTS RESERVED

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