On behalf of our client, a major manufacturer, we collaborated with a national trade association to persuade a prominent standard-setting agency, the American Society for Testing and Materials, to revise two of its industry-wide standards that establish which construction materials can be used in specified infrastructure projects. Those standards, in turn, are routinely adopted verbatim by local public authorities, whereupon they acquire the force of law.
The standards that we challenged excluded an entire category of products (precast concrete culverts) made by our client and many others. The revised standards authorized their use.
This matter was privately resolved by the parties before any litigation was initiated. Before obtaining this result, we asserted that certain “interested” members of the standard-setting agency had wrongly induced it to adopt industry-wide standards for underground infrastructure that arbitrarily excluded precast concrete culverts, even though the culverts were not only reasonable substitutes, but cost-efficient and well-suited for the kinds of projects in question. We argued that, by so acting, the colluding members of the standard-setting agency had restrained trade in violation of Section 1 of the Sherman Act. We further alleged that the standards-setting agency itself was responsible for harm caused to our client and others by its arbitrary exclusion of their products, since the agency had failed to observe its own procedures and instead permitted interested members to misuse its authority and procedures.
We took the initial role in challenging the above matters. After doing so, a national trade association joined our effort and worked with us to secure meaningful relief. The result constituted an unqualified success for our client and all other similarly situated manufacturers.
