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WHEELING-PITTSBURGH STEEL v. ALLIED TUBE & CONDUIT

July 27, 1983

WHEELING-PITTSBURGH STEEL CORPORATION, PLAINTIFF, COUNTERDEFENDANT,
v.
ALLIED TUBE & CONDUIT CORPORATION, DEFENDANT, COUNTERPLAINTIFF.



The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

On September 17, 1975, the defendant-counterplaintiff Allied Tube & Conduit Corporation ("Allied") brought a three count counterclaim against the plaintiff-counterdefendant Wheeling-Pittsburgh Steel Corporation ("WP").*fn1 Count I of the counterclaim alleges violations of § 1 of the Sherman Act, 15 U.S.C. § 1. The Court has subject matter jurisdiction over Count I pursuant to 28 U.S.C. § 1331. Counts II and III allege that WP violated the Illinois Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, § 312, and Allied's rights under the Illinois common law. Allied urges the Court to assert subject matter jurisdiction over Counts II and III by virtue of the doctrine of pendent jurisdiction.

In Count I, Allied alleges that WP conspired with unnamed co-conspirators for the purpose of restraining trade and commerce in the electrical metallic conduit industry. Allied claims that WP conspired to prevent, hinder, and delay the adoption of an Allied product by the National Fire Protection Association ("NFPA"), and that the conspiracy was also intended to prevent, hinder and delay the acceptance by Underwriters Laboratories ("UL") of this Allied product. Allied claims that as a result of this conspiracy, its product received approval by the NFPA and UL four months later than should have been the case, thereby delaying Allied's entry into the market and causing it to suffer damages.

WP now moves for summary judgment on Count I on the basis of the Noerr-Pennington doctrine. WP argues that its opposition to Allied's product took the form of lobbying NFPA and UL, which is protected by the Noerr-Pennington doctrine and therefore not prohibited by the Sherman Act. In support of its motion, WP has relied on Allied's representations and certain stipulations entered into by the parties. In a recent statement to the Court, Allied agreed that the facts are not in dispute for purposes of the motion and the question before the Court is a legal one (Allied's Response of July 13, 1983, at 1). For the reasons given below, WP's motion for summary judgment is granted.

I. FACTS

The NFPA is an independent voluntary membership organization. Its raison d'etre is to protect life and property from harm by fire. It attempts to accomplish this by developing, publishing and disseminating model public safety standards such as the National Electrical Code ("NEC"), which sets forth safety standards for electrical installations. The NFPA has a number of committees which review proposed changes to the NEC. Proposals which survive the various committees' work are submitted to the full NFPA membership at its tri-annual convention, and if approved there the proposals become part of the NEC.

UL is a private corporation which tests proposed products and specifications to determine whether they are safe. UL provides two basic services (relevant to the issues raised in this litigation). First, it will develop a set of specifications called a "product standard" for a new product. This product standard is industrywide, and it is by these specifications that each competitor's product is measured. Second, UL will test a particular product to determine whether it is safe. If UL finds a manufacturer's product to be safe, it will allow the manufacturer to attach a UL "label" to its product and will "list" that manufacturer as an approved manufacturer of the particular product.

Many states and cities have adopted building codes which govern the type of electrical equipment that may be used in local construction. The enforcement code authorities often rely on the testing and standards of the NFPA and UL. Frequently, the approval of NFPA and UL is incorporated into state and municipal codes.*fn2 Allied and WP agree that it is imperative that a firm wishing to market a new type of electrical equipment on a wide scale obtain the approval of NFPA and UL.

In January, 1972, Allied began developing a third kind of electrical metallic conduit which it eventually called intermediate metallic conduit ("IMC"). The development of IMC apparently would have been a breakthrough in the electrical metallic conduit industry, since IMC had the potential to become a substitute for rigid. IMC is lighter in weight than rigid, would cost less to manufacture, and could be sold at a lower price. Furthermore, the IMC proposed by Allied could not be manufactured on a CBW mill, but could be manufactured by firms with ERW mills. Since IMC could be produced by many manufacturers in the industry, competition in producing electrical metallic conduit (rigid and IMC) for use in industrial and commercial construction would be increased. If IMC were to be accepted by the industry, manufacturers of rigid (including WP) would likely lose rigid business to the manufacturers of IMC.

In order successfully to market IMC, Allied had to get the approval of the NFPA (through adoption in the NEC) of its new product, and also had to secure UL's approval of IMC. By February, 1974, an NFPA committee approved Allied's proposed IMC for submission to the full membership at the NFPA convention set for May, 1974. Simultaneously, Allied was seeking the approval of UL for its new product. On April 16, 1974, UL issued a bulletin containing particular wall specifications of IMC recommended by a UL working group.

WP and other members of the conduit industry criticized on safety grounds the wall thickness specifications of IMC contained in UL's April 16th bulletin. Allied alleges (and for this motion it is taken as true) that during the NFPA convention of May 20-24, 1974, WP and its cohorts threatened to oppose the adoption of IMC on the floor of the NFPA convention unless UL agreed to hold further meetings as to the specifications. UL agreed to hold such meetings, and WP did not engage in a floor fight at the NFPA convention. Allied's proposal was adopted by the NFPA at its May, 1974 convention.

Allied had previously sent its proposed IMC product standard to UL and on June 18, 1974, WP sent its version of a proposed IMC product to UL. A meeting was convened on June 21, 1974, to discuss the two proposed IMC standards under consideration by UL (that is, the proposals by Allied and by WP). Three representatives of Allied attended this meeting, as did two representatives of WP. Allied fought for the adoption of its proposed standard, and WP fought for the adoption of the standard proposed by it. WP objected to Allied's proposal on safety grounds, stating that the walls of IMC as proposed by Allied were too thin.

On October 23, 1974, UL issued a bulletin containing the "requirements" for IMC. A UL employee (Mr. Bartholf) testified in his deposition that UL investigated WP's safety arguments regarding Allied's proposal, but found no support for WP's contentions. However, it is undisputed that the October 23, 1974, bulletin issued by UL explicitly states: "A number of suggestions were made relating to dimensional and weight specifications for this type of Intermediate Metal Conduit and a slight change minimum wall thickness has been made. . . . With the increase in wall thickness mentioned above . . ." Thus the requirements adopted by UL contained thicker wall specifications than had been suggested by Allied. The changes made tended in the direction espoused by WP.

UL invited submittals for IMC by conduit manufacturers for listing in accordance with the requirements set forth in its October 23, 1974 bulletin. On November 6, 1974, Allied received an IMC listing from UL. Allied claims that this listing came approximately four months later than it would have had it not been for WP's objections to Allied's proposal. Therefore, Allied alleges it was deprived of four months time during which it could have marketed its IMC product.

II. THE LEGAL ARGUMENTS

The basis for WP's motion for summary judgment is that it merely engaged in good faith and effective lobbying of NFPA and UL, both of which it describes as quasi-governmental agencies. WP argues that the Noerr-Pennington doctrine holds that the Sherman Act does not prohibit the kinds of activities in which WP engaged.

Allied maintains that Noerr-Pennington is inapplicable. First, Allied states that neither NFPA nor UL is a governmental agency of the kind contemplated by Noerr-Pennington. Second, Allied argues that even if WP's contacts with and approaches to NFPA and UL amounted to lobbying so-called governmental agencies and would otherwise be within the Noerr-Pennington protection, the facts of this case show that WP did not engage in genuine lobbying efforts, but that its activities were no more than a ...


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