logo

PS food-service companies ask court to dismiss Evergreen lawsuit

By: Jeremy Carroll

August 20, 2013

Five major manufacturers of polystyrene food-service products, and the trade association that represents them, are attempting to get a lawsuit tossed that accuses them of conspiring against a closed-loop recycling program for lunch trays.

Evergreen Partnering Group Inc. in North Reading, Mass., filed a $25 million antitrust lawsuit in U.S. District Court in Boston in 2011, claiming that Pactiv Corp., Genpak LLC, Solo Cup Co., Dolco Packaging and Dart Container Corp. agreed among themselves not to partner with Evergreen.

The five companies are part of the Plastics Foodservice Packaging Group of the American Chemistry Council — all of which were named as defendants in the antitrust lawsuit.

The U.S. District Court dismissed the complaint, but the U.S. Court of Appeals vacated that judgment in a June 19 ruling. That ruling, in effect, revived the lawsuit.

“In assessing these allegations, the district court improperly applied a heightened pleading standard in reviewing Evergreen’s complaint, and it improperly occupied a fact finder role when it both chose among plausible alternative theories interpreting defendants’ conduct and adopted as true allegations made by defendants in weighing the plausibility of theories put forward by the parties,” the three judge panel of the Court of Appeals wrote.

Now the manufacturers and ACC filed a joint motion for dismissal on Aug. 19, and several of the companies filed individual motions to get their company dismissed from the case.

Solo Cup was among those that filed a separate motion for dismissal, saying the complaint contains no evidence that the company participated in a conspiracy or in unfair business practices.

“Importantly, there is not a single allegation in the [complaint] that Solo met with, or had any communication with any other defendant regarding [Evergreen] or its recycled resin,” Solo Cup attorney Scott Mendel wrote in his motion for dismissal.

Dart too, said Evergreen failed to allege that Dart had any interaction with the company or any other defendant relating to the prospect of doing business with Evergreen, “or that Dart was even aware of what its alleged co-conspirators were or were not doing where Evergreen was concerned,” attorney John Faust wrote in the motion.

Previously ACC said the allegations were “without merit” and the organization planned to defend itself against “these wildly imaginative, but baseless claims.”

Evergreen had operated closed-loop recycling systems, beginning in 2002, in public school systems in Providence, R.I.; Boston; Pasco County, Fla., and Gwinnett and DeKalb counties in Georgia. The last that was still operating — in Gwinnet County — closed for good in January 2009, citing a lack of cooperation from those PS tray manufacturers.