Summary
affirming the dismissal of an unjust enrichment claim brought by New York indirect purchasers because the alleged connection between plaintiffs and defendants was simply too attenuated, but observing "a plaintiff need not be in privity with the defendant to state a claim for unjust enrichment"
Summary of this case from In re Occupant Safety Sys.Opinion
2004-06517.
February 28, 2006.
In a purported class action to recover damages, inter alia, for antitrust violations and unjust enrichment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated November 20, 2003, as granted the motion of the defendants Crompton Corporation, Uniroyal Chemical Company, Inc., Uniroyal Chemical Company Limited, Flexsys NV, Flexsys America, LP, Bayer Corporation, and Rhein Chemie Corporation pursuant to CPLR 3211 (a) (7) to dismiss the antitrust and unjust enrichment claims.
Milberg Weiss Bershad Schulman, LLP, New York, N.Y. (Laura Kam, J. Douglas Richards, Michael M. Buchman, Lerach Coughlin Stoia Geller Rudman Robbins, LLP [Bonny E. Sweeney], Carey Danis, LLP [Michael J. Flannery and James J. Rosemergy], Robbins Umeda Fink, LLP [Brian J. Robbins], and Maricic Goldstein, LLP [David M. Goldstein] of counsel), for appellant.
O'Melveny Myers, LLP, New York, N.Y. (Frank Goldman, Ian T. Simmons, and Benjamin G. Bradshaw of counsel), for respondents Crompton Corporation, Uniroyal Chemical Company, Inc., and Uniroyal Chemical Company Limited; and Covington Burling, New York, N.Y. (Marc V. Falkoff, William D. Iverson, Michael J. Fanelli, and Gibson, Dunn Crutcher, LLP [James D. Slear, D. Jarrett Arp, and Daniel G. Swanson] of counsel), for respondents Flexsys NV and Flexsys America, LP; and Jones Day, New York, N.Y. (Christian Sproule, Albert J. Rota, William V. O'Reilly, Christian G. Vergonis, and J. Andrew Read of counsel), for respondent Bayer Corporation (one brief filed).
Eliot Spitzer, Attorney-General, New York, N.Y. (Michelle Aronowitz, Jay L. Himes, Peter D. Bernstein, and Jean Lin of counsel), for State of New York, amicus curiae.
Kirby McInerney Squire, LLP, New York, N.Y. (Daniel Hume of counsel), for American Antitrust Institute, amicus curiae.
Before: Crane, J.P., Santucci, Mastro and Dillon, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
In this action on behalf of a putative class of members who purchased automobile tires in New York, the plaintiff seeks to recover damages against producers of rubber processing chemicals for conspiring to artificially fix, raise, stabilize, and maintain the price of rubber processing chemicals, thereby causing the plaintiff and others similarly situated to pay inflated prices for tires processed with the defendants' chemicals.
The Supreme Court properly dismissed the plaintiff's General Business Law § 340 (the Donnelly Act) class action claim as barred by CPLR 901 (b) ( see Paltre v. General Motors Corp., 26 AD3d 481 [decided herewith]).
The Supreme Court likewise properly dismissed the plaintiff's claim to recover damages for unjust enrichment. Because the plaintiff was not in privity with the defendants, the plaintiff cannot maintain an action against them to recover damages for unjust enrichment ( see Outrigger Constr. Co. v. Bank Leumi Trust Co. of N.Y., 240 AD2d 382, 384; Kagan v. K-Tel Entertainment, 172 AD2d 375, 376; Sybelle Carpet Linoleum of Southampton v. East End Collaborative, 167 AD2d 535, 536-537; Kapral's Tire Serv. v. Aztek Tread Corp., 124 AD2d 1011, 1013). We decline to follow the decision of the Appellate Division, First Department, in Cox v. Microsoft Corp. ( 8 AD3d 39, 40), which dispenses with the requirement of privity for a claim sounding in unjust enrichment.