Client Alert Practice 1
Pillsbury Winthrop Shaw Pittman LLP pillsburylaw.com | 1
December 1, 2016
Developments in Association Law 2015–2016
By Jerald A. Jacobs*
The Nonprofit Organizations Practice at Pillsbury has prepared this summary
of significant legal and policy developments that have occurred in
approximately the past year. All of these developments have potential impacts
upon nonprofit membership organizations. Citations are included for those
desiring additional details.
Antitrust
Evergreen Partnering Group, Inc. v. Pactiv Corp., 832 F.3d 1 (1st Cir. 2016).
The plaintiff, a converter of polystyrene products, argued that the defendants violated Section 1 of the
Sherman Act by conspiring to sabotage its recycling model involving commission payments by rejecting
agreements that involved commissions and by blocking access to customers. The plaintiff was required to
produce evidence that “tends to exclude the possibility” that the defendants acted independently. The court
concluded that the plaintiff failed to provide evidence sufficient to raise a reasonable inference of unlawful
action. The court found no genuine issue of material fact as to whether a conspiracy existed.
Kleen Products LLC v. International Paper Co., 831 F.3d 919 (7th Cir. 2016).
Containerboard purchasers sought to recover treble damages under Section 1 of the Sherman Act. The
purchasers alleged that defendant companies increased prices by restricting “the supply of containerboard
by cutting capacity, slowing back production, taking downtime, idling plants, and tightly restricting
inventory.” The circuit court ruled that the district court properly certified a nationwide class of purchasers.
The prerequisites for certification were satisfied: There were common methods of proof to show the
existence of the alleged collusion and the effect it had on prices, the collusion predominated over other
factors that could affect an individual purchaser’s damages, and releases signed by some members would
merely limit their recovery period to purchases made after that time.
In re Musical Instruments & Equipment Antitrust Litigation, 798 F.3d 1186 (9th Cir. 2015).
The plaintiffs, purchasers of guitars and guitar amplifiers from the largest retail seller of musical
instruments in the United States, claimed that the defendants violated Section 1 of the Sherman Act by
conspiring to fix prices. The circuit court rejected the plaintiffs’ argument that it is plausible to infer a price-
fixing conspiracy based only on allegations that certain guitar manufacturers each adopted similar
advertising policies (“parallel conduct”) under circumstances that suggest the manufacturers agreed
Public Policy
