ICP Seeks Another Shot at Caterpillar

February 8, 2016

International Construction Products LLC filed suit on Thursday urging a Delaware federal court to rethink its dismissal of an antitrust suit accusing Caterpillar, Komatsu and a Volvo unit of plotting a boycott to keep Chinese equipment from being sold online, arguing an amended complaint will resolve any factual defects.

ICP said U.S. District Judge Richard G. Andrews’ late January dismissal of claims that Caterpillar had monopolized the construction equipment market with help from Komatsu America and a Volvo AB subsidiary and threatened to boycott ICP if it sold Chinese products was based only on some factual deficiencies. ICP says an amended complaint clarifys these deficiencies.

ICP said Thursday its proposed amendments have demonstrated the basis of the monopolization and illegal merger claims and that allowing the new complaint to be filed “would not be futile,” as Judge Andrews previously had found. “The opinion dismissed these claims for failure to allege facts sufficient to state a claim, and these deficiencies have been cured in the proposed second amended complaint,” ICP said Thursday. “Because amendment is demonstrably not futile, the prejudicial dismissal of these claims should be reconsidered.”

The originial suit filed by ICP in January 2015 claimed Caterpillar, Komatsu and Volvo felt threatened by ICP's attempts to sell construction equipment  directly to customers online at discounts of up to 40 percent. ICP said Caterpillar, Komatsu and Volvo conspired to block ICP's online sales by strong-arming its auction partner, IronPlanet.com, into breaking a contract.  Judge Andrews ruled ICP couldn't point to any facts that actually showed the manufacturers had agreed to threaten to stop doing business with IronPlanet and found there was not enough in the complaint to infer that what happened was anything more than parallel conduct. Andrews also said the fact that manufacturers have exclusive distribution agreements with their dealers was not alone grounds for an antitrust allegation because many industries use that distribution model "for entirely procompetitive reasons."

Counsel for the parties could not be reached for comment on Friday.

Source: Law360.com