Bayer wins summary judgment against pest control operators antitrust class action

Client(s) Bayer AG

Jones Day client Bayer Corporation and Bayer CropScience, L.P. won summary judgment in a case brought as a nationwide antitrust class action by pest control operators who had purchased Premise, a termiticide that Bayer manufactures. The original complaint contained allegations that Bayer had violated the Robinson-Patman Act by discriminating in favor of large purchasers such as Orkin and Terminix, but plaintiffs dropped these allegations in response to a motion to dismiss.

An amended complaint charged Bayer with conspiring with BASF Corporation to fix the price of termiticides by adopting a particular form of distribution, but plaintiffs dropped this allegation at the close of discovery. The summary judgment ruling addressed the plaintiffs' remaining claim, that Bayer's relationship with the intermediaries who actually sold Premise was that of title transfer or distribution, rather than true agency, such that Bayer's agreement with its intermediaries' agreement on the price at which Premise was to be sold to plaintiffs amounted to resale price maintenance under Simpson v. Union Oil. The court disagreed, holding as a matter of law that the relationship was one of agency. The Fourth Circuit upheld the summary judgment ruling.

Budget Pest Prevention v. Bayer, No. 05-CV-00090 (W.D. N.C., filed Apr. 25, 2005); Valuepest.com, et al. v. Bayer Corp., et al., No. 07-1760 (4th Cir. 2009)