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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: DIISOCYANATES ) Master Docket Misc. No. 18-1001
ANTITRUST LITIGATION )
) MDL No. 2862
This Document Relates to: )
All Cases )

AMBROSE, United States Senior District Judge

MEMORANDUM OPINION AND ORDER
Plaintiffs filed a Motion seeking leave to amend the CAC to add an additional named
Plaintiff, American Polymers Corp. (ECF No s. 360, 361). Defendants filed a Memorandum in
Opposition asserting that the Motion should be denied because Plaintiffs’ actions constitute undue
delay, and that the Motion is partially futile and substantially prejudices Defendants. (ECF No.
368). Thereafter, Plaintiffs filed a Reply. (ECF No. 369). The Motion is now ripe for review.
Federal Rule of Civil Procedure 15 governs amendments to pleadings and allows for
amendments prior to trial with the opposing party’s consent or with leave of court. F.R.C.P
15(a)(2). To that end, courts “should freely give leave when justice so requires.” Id. “Motions to
amend under Rule 15 are typically granted liberally, and a court may deny leave to amend only
when ‘(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the
amendment would be futile, or (3) the amendment would prejudice the other party.’” Wolfington
v. Reconstructive Orthopedic Assocs. II PC, 935 F.3d 187, 210 (3d Cir. 2019), citing United States
ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242, 249 (3d Cir. 2016)
(quoting United States ex rel. Schumann v. AstraZeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir.
2014)).
This antitrust litigation was initiated on October 10, 2018 and involves diisocyanates.
Plaintiffs’ CAC alleges Plaintiffs purchased diisocyanates from Defendants. (ECF No. 163, ¶¶21-
24, 54). More specifically, the CAC discusses the purchase of both MDI (methylene diphenyl
Case 2:18-mc-01001-WSH Document 372 Filed 09/04/20 Page 1 of 6
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diisocyanate) and TDI (toluene diisocyanate) . Id. Defendants moved to dismiss the TDI
allegations arguing, inter alia, that Plaintiffs lacked standing to bring the same. (ECF No. 224).
In response to Defendants’ Motion to Dismiss, Plaintiffs stated that they alleged that they
purchased both MDI and TDI from Defendants at inflated prices in the CAC.1 (ECF No. 243, p.
34). On June 11, 2020, Plaintiffs discovered that “none of the [named] Plaintiffs have records of
any purchase of TDI from a Defendant during the Class Period.” (ECF No. 361, p. 9). According
to Plaintiffs, this was a “misunderstanding” based on “client representations to counsel.” Id. On
July 5, 2020, Plaintiffs informed Defendants of the same and sought consent to add American
Polymers Corp., a putative class Plaintiff, as a named Plaintiff.
Defendants assert the Motion to Amend should be dismissed due to undue delay. (ECF
No. 368). Upon review of the submissions of the parties, I find that though it would have been
preferable for Plaintiffs’ to have uncovered their “misunderstanding” previously, I do not find bad
faith or undue delay. Within thirty days of discovering the misunderstanding, Plaintiffs informed
Defendants. While Defendants assert that Plaintiffs should have discovered their
“misunderstanding” at various prior junctures (e.g. before filing their Complaint and when Plaintiffs
rejected the notion that none of the named Plaintiffs purchased TDI in response to Defendants’
Motion to Dismiss , among others ), this does not alter the fact that this case is still in its early
stages. Discovery has just recently begun. Jurisdictional discovery with foreign Defendants is
ongoing. Deadlines for challenges to c lass certification pursuant to Rule 23 ha ve not been set.
No trial date has been contemplated or set. Additionally, I note that TDI products have been a
part of the action from the very outset of this multi -district litigation. See, ECF No. 1.
Consequently, amendment should not materially delay any current schedule.

1 On this issue, I ruled as follows: “Defendants’ contention that Plaintiffs failed to adequately plead a TDI
conspiracy claim (based on a single conspiracy that includes TDI and lack of standing to bring a TDI
conspiracy) is rejected. When read in toto, Plaintiffs’ CAC has sufficiently pled that they purchased both
TDI and MDI and paid inflated prices.” (ECF No. 289, p. 5). The amendment sought by Plaintiffs does
not alter the rationale behind this ruling. Based on the same and for the reasons set forth, infra, I find no
basis to reconsider the issue of standing.
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Defendants further assert that the amendment is partially futile because it is barred by the
statute of limitations and because it does not cure the jurisdictional defects as to the foreign
Defendants. (ECF No. 368, pp. 18-23). I disagree. Rule 15(c) provides that an amendment to a
pleading relates back to the date of the original pleading when “the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out --or attempted to be
set out--in the original pleadin g.” F.R.C.P. 15(c)(1)(B). The touchstone of relating back is fair
notice. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149 n. 3 (1984). Defendants
suggest that the court’s inquiry must go further and consider Rule 15(c)(1)(C) in accordance with
Nelson v. City of Allegheny, 60 F.3d 1010, 1011-1013 (3d Cir. 1995). Nelson involved a motion
to amend that was filed after class certification had been denied. That is not the case here. Thus,
I find Defendants’ reliance on the same is misplaced. “[T]the timely filing of a class action tolls
the applicable statute of limitations for all persons encompassed by the class complaint.”
American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553 (1974). The tolling lasts for putative
class members until a ruling on class certification, which has not occurred yet in this case. 2 Id;
see also, China Agritech, Inc. v. Resh, ___ U.S. ___, 138 S. Ct. 1800, 1806 (2018); Schultz v.
Midland Credit Mgmt., Inc., No. 16-cv-4415 (JLL), 2019 WL 2083302, at *10-11 (D.N.J. May 13,
2019)(holding China Agritech does not prohibit American Pipe tolling “to allow the addition or
substitution of a named plaintiff in an ongoing putative class action following the expiration of the
statute of limitations but prior to a decision on class certification.”).
Plaintiffs are not attempting to inject a new unanticipated claim or assert a new theory.
From the outset they have pursued claims related to diisocyanates, including TDI. As evidenced
by the proposed amendment, Plaintiffs merely seek to add a named Plaintiff from a putative class
member and assert the identical claims.
Plaintiff American Polymers Corp. is a California corporation with its principal place
of business in Santa Fe Springs, California. American Polymers Corp. purchased

2 The issue of whether the named Plaintiffs adequately represent the purported class is a Rule 23 issue
and will be addressed at the appropriate time and in due course.
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in the United States one or more of the products at issue directly from one or more
of the Defendants during the Class Period and was injured in its business or
property by reason of Defendants’ alleged violations of the Sherman Act.

(ECF No. 361, p. 21). Additionally, Defendants do not suggest that Plaintiffs’ CAC is untimely.
Based on the same, I find the claim relates back to the filing of the class action. Therefore,
Plaintiffs’ requested amendment would not be barred by the statute of limitations, and, thus, not
futile.3
Finally, Defendants assert that they will be “substantially prejudiced” by the proposed
amendment because they should not have to litigate allegations that should never have been
brought and should have been dismissed several months ago resulting in wasted time and
resources. (ECF No. 368, pp. 23-25). To the contrary, Defendants have had notice all along that
TDI (as a diis ocyanate) is par t of the alleged conspiracy. As set forth above, t his is a not new
claim. Time and resources spent, therefore, are not wasted. Additionally, at this stage of the
litigation, efforts expended will continue to be of value as they continue to defend the claims as
previously asserted. New investigative efforts related to American Polymers should not take
considerable time since TDI allegations were always a part of the CAC and the early discovery
issues/parameters that have already been hammered out will apply to American Polymers. Lead
and Liaison counsel remain the same such that the new and different objections to pr evious
discovery requests should not be an issue. Moreover, permitting the amendment should not
materially delay the current discovery schedule as it does not change the nature of claims
asserted against Defendants.
Consequently, I find that justice so requires amendment.

3Defendants also suggest in a paragraph that amendment should be denied because it “does not cure the
jurisdictional defects as to the Foreign Defendants.” (ECF No. 368, p. 23). The court previously denied
without prejudice Foreign Defendants Rule 12(b)(2) jurisdictional motions. (ECF No. 291). Foreign
Defendants, Covestro AG and Wanhua Chemical Group, have not filed renewed motions. Therefore, any
ruling regarding the same would be premature at this time.
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THEREFORE, this 4th day of September, 2020, upon consideration of Plaintiffs’ Motion for
Leave to Amend Their Corrected Consolidated Amended Class-Action Complaint (ECF No. 360),
it is ORDERED that said Motion is granted. It is further ORDERED as follows:
1. Plaintiffs are granted leave to file a Consolidated Second Amended Class -Action
Complaint (Second Amended CAC) to add American Polymers Corp. as an additional named
Plaintiff by September 10, 2020.
2. Plaintiffs Second Amended CAC only shall include the following new allegation at
Paragraph 24A.
Plaintiff American Polymers Corp. is a California corporation with its
principal place of business in Santa Fe Springs, California. American
Polymers Corp. purchased in the United States one or more of the products
at issue directly from one or more of the Defendants during the Class
Period and was injured in its business or property by reason of Defendants’
alleged violations of the Sherman Act.

3. In accordance with the Order granting Plaintiffs’ leave to file their Consolidated
Amended Class -Action Complaint under seal (ECF No. 153), Plaintiffs may file their Second
Amended CAC under seal.
4. Defendants are permitted, but need not , file responsive pleadings to the Second
Amended CAC by September 24, 2020.
5. If no responsive pleading is filed to the Second Amended CAC, Defendants’
Answers to the CAC shall be deemed to have been filed in response to the Second Amended
CAC, in which case Defendants shall be deemed to have denied the allegations of paragraph 24A
of the Second CAC.
6. Plaintiffs shall provide the information required under Section 4(c) of the Stipulated
Order re: Discovery of Electronically Stored Information (ECF No. 313) for Plaintiff, American
Polymers within 21 days of this order.
7. Plaintiffs shall collect and provide Defendants with the data field maintained by
Plaintiff, American Polymers, and a sample of the requested fields within 30 days of this order.
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BY THE COURT:

_________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court
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