BOSTON (April 26, 12:30 p.m. ET) — The on-again, off-again antitrust lawsuit against five major manufacturers of polystyrene food-service products and the American Chemistry Council is on again.
Evergreen Partnering Group Inc. first filed the antitrust lawsuit in U.S. District Court in Boston last year, claiming that Pactiv Corp., Genpak LLC, Solo Cup Co., Dolco Packaging and Dart Container Corp. agreed not to partner with Evergreen, a North Reading, Mass.-based closed-loop recycler.
The five companies are part of ACC's Plastics Foodservice Packaging Group, which was also named as a defendant.
U.S. District Court Judge Richard Stearns threw out the case in December, then reopened it in January. He has set a hearing for May 15 on motions that all of the defendants have filed to dismiss the second amended complaint, which Evergreen filed Jan. 30.
The original lawsuit had charged the defendants with collusion, trade libel, unfair business practices, violations of the Sherman Antitrust Act, false advertising in violation of the Lanham Act, and tortious interference with both prospective economic advantage and with contractual relations. Evergreen sought damages of $25 million.
The second amended complaint did not ask for a specific dollar amount in damages. Instead it asked the court to award Evergreen “any and all fair and equitable damages as the court deems fit” and to be reimbursed for “reasonable attorney fees and costs of litigation.”
“Evergreen has not calculated the precise extent of its past damages and cannot now estimate with precision the future damages that continue to accrue, but when it does so, it will seek leave of the Court to insert the amount of the damages sustained herein,” said the second amended complaint.
“In the alternative, because Evergreen's business has been totally or partially destroyed ..., Evergreen also seeks the ‘loss of going concern' value of its business,” the complaint continued. “Evergreen has not calculated the precise extent of its loss of going concern value, but estimates its damages to exceed $25 million.”
Unlike the original lawsuit, the second amended complaint only cited violations of the Sherman Law, violations of the Lanham Act, and unfair business practices under General Chapter 93A of Massachusetts General Law.
Judge Stearns initially threw out the case on Dec. 1 after Evergreen did not obtain legal counsel by a court-ordered deadline, after several law firms withdrew as Evergreen's legal counsel. However, after Evergreen founder and President Michael Forrest found another law firm to serve as his counsel four weeks later, the case was subsequently reopened.
Stearns has reminded Forrest several times during the course of the legal proceedings that “corporations must appear and be represented in court ... by attorneys.”
Forrest filed the lawsuit after Evergreen was unable to make its system for recycling PS school trays economically successful, and after Forrest had engaged in more than 18 months of discussions and negotiations with the five companies and ACC. Solo is now owned by Dart.
Evergreen had operated closed-loop PS 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 one that was still operating—in Gwinnet County—closed for good in January 2009, citing a lack of cooperation from those PS tray manufacturers.
In a November 2010 email, Forrest had told Plastics News that he had offered to settle the matter out of court for $5.6 million.