FILED UNDER SEAL CIVIL ACTION NO. 06-md-1768

THIS DOCUMENT CONTAINS CONFIDENTIAL AND HIGHLY CONFIDENTIAL

INFORMATION SUBJECT TO THE STIPULATED PROTECTIVE ORDER APPROVED BY THE COURT BY ORDER DATED JANUARY 12, 2007

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

__________________________________________ ) IN RE: ) METHYL METHACRYLATE (MMA) ) Judge Timothy J. Savage ANTITRUST LITIGATION ) ) 06-md-1768 __________________________________________) ) THIS DOCUMENT RELATES TO: ) ALL DIRECT PURCHASER ACTIONS ) __________________________________________)

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Plaintiffs Borden & Remington Corporation, ConMed Corporation, Dental

Models & Designs, Inc., Innovative Hightech Lighting Corporation (f/k/a Inhee Lighting

Corporation), Just Hardware, Inc., and Plastics Color & Compounding, Inc. (collectively,

“Plaintiffs”) respectfully submit this supplemental memorandum in opposition to

Defendant Imperial Chemical Industries PLC’s (“ICI”) Motion to Dismiss Plaintiffs’

Consolidated Complaint for Lack of Personal Jurisdiction and Defendant Lucite

International Limited’s (“Lucite”) Motion to Dismiss for Lack of Personal Jurisdiction.

This is the second time that ICI and Lucite have moved to dismiss this action on

the ground that this Court has no personal jurisdiction to adjudicate Plaintiffs’ claims

against them. In doing so, ICI and Lucite have merely repackaged the identical arguments

they made in relation to the superceded complaint that was dismissed in part on other

grounds entirely unrelated to the issue of personal jurisdiction.1

In their most recent filings, ICI and Lucite suggest that it was somehow

incumbent upon plaintiffs to present “new” allegations that further establish personal

jurisdiction. See Defendant Imperial Chemical Industries PLC’s Memorandum in Support

of its Motion to Dismiss Plaintiffs’ Second Amended Consolidated Class Action

Complaints for Lack of Personal Jurisdiction (“ICI Mem.”) at 1-3; Memorandum of Law

in Support of Defendant Lucite International Limited’s Motion to Dismiss the

Complaints for Lack of Jurisdiction (“Lucite Mem.”) at 1, 3, 13. However, the previous

complaint satisfied every Constitutional requirement necessary for this Court to exercise

personal jurisdiction over ICI and Lucite, as was demonstrated comprehensively in the

Direct Purchaser Plaintiffs’ Memorandum in Opposition to Motions to Dismiss for Lack

of Jurisdiction, filed on January 12, 2007 (“Plaintiffs’ Jurisdictional Memorandum” or

“Pl. Mem.”).

In recognition of this fact, Plaintiffs did not modify the jurisdictional allegations

set forth in the previous complaint. Given the fully developed record before the Court,

interjection of new or additional jurisdictional matter into the Second Amended

Complaint would have been unnecessary.

1 On December 19, 2007, the Court entered an Order requiring Plaintiffs to file a Second Amended Complaint that more completely satisfies the pleading requirements set forth in Bell Atlantic Corp. v. Twombly, 27 S. Ct. 1955, 1965 (2007), which was handed down by the Supreme Court after the filing of Plaintiffs’ initial amended complaint. On January 28, 2007, Plaintiffs filed their Second Amended Complaint, which does contain highly specific allegations that more than satisfy the Twombly pleading standards. See Direct Purchaser Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint, filed contemporaneously with this memorandum. By Orders dated March 13, 2008, the Court denied ICI and Lucite’s previously filed jurisdictional motions as moot.

The question of personal jurisdiction in this case was already fully briefed and

ripe for adjudication before the filing of the Second Amended Complaint. It remains so

now. The filing by ICI and Lucite of redundant briefs repeating the same arguments and

relying on the same sworn statements of the same corporate officers2 adds nothing of

value or substance to their earlier submissions. That being the case, Plaintiffs rest on the

facts and legal analysis set forth in Plaintiffs’ Jurisdictional Memorandum. For the

Court’s convenience, a copy of this memorandum is attached here at Exhibit A; the

voluminous exhibits described in the memorandum are on file with the Clerk of the

Court. Plaintiffs would be pleased to submit additional copies of the exhibits at the

request of the Court.3

2 In connection with the instant motions, ICI and Lucite rely upon same sworn statements filed with their earlier motions in October 2006: (1) a Declaration of Adam Westley, Assistant Company Secretary of ICI (ICI Mem. at 1 n.1, 3, Exhibit 1); and (2) Affidavits of Ian Robin Lambert, Lucite Limited’s Chief Executive Officer (Lucite Mem. at 1, Exhibits A and B). 3 Plaintiffs offer a few general observations about the most recent jurisdictional filings by ICI and Lucite. Like the reply memoranda submitted in February 2007, the new briefs fail to come to terms with the cases within the Third Circuit cited in Plaintiffs’ Jurisdictional Memorandum that sustain personal jurisdiction where, as here, a corporate parent and its wholly owned subsidiary conduct their affairs as a “single functional and organic entity.” This determination requires an examination of several “non-exhaustive” factors in their totality and in relation to one another. Pl. Mem. at 5-9 (and cases cited therein). Plaintiffs have shown that these controlling factors, properly applied to the facts of this case (Pl. Mem. at 9-46), support this Court’s exercise of personal jurisdiction. By contrast, ICI and Lucite quibble myopically about the significance of isolated facts in an analytically sterile vacuum that disregards ICI and Lucite’s aggregate contacts with the United States. Moreover, as perhaps best illustrated by Lucite’s effort to obscure the centralized control exercised over its American subsidiary (see, e.g., Lucite Mem. at 13-16), ICI and Lucite attempt to “spin” away the straightforward evidence before the Court (see, e.g., Pl. Mem. at 26-31) with hyper-technical and self-serving reinterpretations of contextually disconnected facts. Arguments of this kind do nothing to dispel Plaintiffs’ prima facie evidence establishing the propriety of personal jurisdiction over Lucite and ICI.

Dated: April 8, 2008 Respectfully submitted, BOLOGNESE & ASSOCIATES, LLC

By:__________________________ Anthony J. Bolognese Joshua H. Grabar John G. Narkin

1500 JFK Blvd., Suite 320 Philadelphia, PA 19102

Telephone: (215) 814-6750 Facsimile: (215) 814-6764

H. Laddie Montague Ruthanne Gordon Charles P. Goodwin Candice J. Enders BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Michael D. Hausfeld Robert G. Eisler Seth R. Gassman COHEN MILSTEIN HAUSFELD & TOLL, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 Steven A. Kanner William H. London Douglas A. Millen

FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4521

Interim Co-Lead Counsel for Direct Purchaser Plaintiffs

.

EXHIBIT A

.

FILED UNDER SEAL CIVIL ACTION NO. 06-md-1768

THIS DOCUMENT CONTAINS CONFIDENTIAL AND HIGHLY CONFIDENTIAL

INFORMATION SUBJECT TO THE STIPULATED PROTECTIVE ORDER APPROVED BY THE COURT BY ORDER DATED JANUARY 12, 2007

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________________ ) IN RE: ) METHYL METHACRYLATE (MMA) ) Judge Timothy J. Savage ANTITRUST LITIGATION ) ) 06-md-1768 __________________________________________) ) THIS DOCUMENT RELATES TO: ) January 12, 2007 ALL DIRECT PURCHASER ACTIONS ) __________________________________________)

DIRECT PURCHASER PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Anthony J. Bolognese Joshua H. Grabar John G. Narkin BOLOGNESE & ASSOCIATES, LLC 1617 JFK Blvd., Suite 650 Philadelphia, PA 19103 Telephone: (215) 814-6750 Facsimile:(215) 814-6764

H. Laddie Montague Ruthanne Gordon Charles P. Goodwin BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604

Steven A. Kanner William H. London Douglas A. Millen MUCH SHELIST FREED DENENBERG AMENT & RUBENSTEIN, P.C. 191 North Wacker Drive Suite 1800 Chicago, IL 60606 Telephone: (312) 521-2000 Facsimile: (312) 521-2100

Michael D. Hausfeld William P. Butterfield Megan E. Jones COHEN MILSTEIN HAUSFELD & TOLL, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699

Interim Co-Lead Counsel for Direct Purchaser Plaintiffs

TABLE OF CONTENTS

I. BACKGROUND ................................................................................................................ 1

A. Jurisdictional Motions and Discovery .................................................................... 1

B. Jurisdictional Arguments Advanced by XXX and XXXXX .................................. 4 II. ARGUMENT...................................................................................................................... 5

A. The Controlling Legal Standards ............................................................................ 5

B. XXXXX’s Pervasive Contacts With the United States Are Sufficient to Sustain Personal Jurisdiction ............................................................................................... 9

1. XXXXX’s Issuance and Marketing of American Depositary Receipts

(“ADRs”) .................................................................................................... 9

2. XXXXX’s Ownership of United States Patents ....................................... 13

3. XXXXXX and its Subsidiaries in the United States Operate as a Single Functional and Organic Entity .................................................................. 14

a. XXXXX’s 100% ownership of the stock of its U.S. subsidiaries 14

b. XXXXX’s Common Worldwide Corporate Image ...................... 15

c. XXXXX’s “Overlapping” Management....................................... 18

d. XXXXX Controls and Dominates its American Subsidiaries ...... 20

e. XXXXX and its American Subsidiaries Share Common

Operational Functions................................................................... 25

C. XXXXX’s Pervasive Contacts With the United States Are Sufficient to Sustain Jurisdiction............................................................................................................ 26

1. XXXXX Dictated Pricing Strategy for MMA and PMMA in the United

States and Elsewhere Throughout the World............................................ 26

2. XXXXX and its Subsidiaries Operate as a Single Functional and Organic Entity......................................................................................................... 31

a. “XXXXXXX’s” Interconnected Ownership Structure and

Common Identity .......................................................................... 31

i .

b. XXXXXX Dominates and Controls its Subsidiaries .................... 36

c. XXXXXXX Board Authorized United States Litigation Against XXXXX ........................................................................................ 39

d. XXXXXX and its Subsidiaries Share Common Information

Technology ................................................................................... 40

e. The XXXXX “Group’s” Extensive Use of the United States Capital Markets............................................................................. 40

(1) Notes Issued by XXXXXX............................................... 40

(2) XXXXXX’s Sales of XXXXX Stock to United States

Employees of XXXXX..................................................... 42

f. XXXXX’s Overlapping Management .......................................... 44

g. Common Representation of XXXXX and XXXX By The Same Law Firm....................................................................................... 45

D. Jurisdiction Over XXXXX is Not Unfair or Unjust ............................................. 45

III. CONCLUSION................................................................................................................. 47

ii .

TABLE OF AUTHORITIES

Cases Arch v. American Tobacco Co., Inc.,

984 F. Supp. 830 (E.D. Pa. 1997) ............................................................................................... 7 CDI v. Marck,

2005 WL 146890 (E.D. Pa. Jan. 21, 2005) ............................................................................... 46 Commodity Futures Trading Commission v. Worldwide Commodity Corp.,

366 F. Supp.2d 276 (E.D.Pa. 2005) .......................................................................................... 46 Directory Dividends, Inc. v. SBC Communications, Inc.,

2003 WL 21961448 (ED. Pa. July 2, 2003)...................................................................... passim Genesis Bio Pharmaceuticals, Inc. v. Chiron Corp.,

2002 WL 27261 (3d Cir. 2002)................................................................................................. 45 Helicopteros Nacionales de Columbia, S.A. v. Hall,

466 U.S. 408 (1984).............................................................................................................. 5, 27 In re Automotive Refinishing Paint Antitrust Litigation,

2002 WL 31261330 (E.D. Pa. July 31, 2002) 6, 13, 16 In re Automotive Refinishing Paint Antitrust Litigation,

358 F.3d 288 (3d Cir. 2004)........................................................................................................ 6 In re Latex Gloves Products Liability Litig.,

2001 WL 964105 ............................................................................................................... passim Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945).............................................................................................................. 5, 40 Miller Yacht Sales, Inc. v. Smith,

384 F.3d 93 (3d Cir. 2004).................................................................................................. 5, 6, 7 Parker v. DPCE, Inc.,

Civ. A. No. 91-4829, 1992 WL 501273, 1992 U.S. Dist. LEXIS 16921 (E.D. Pa. Nov. 3, 1992) ........................................................................................................................................... 8

Pinker v. Roche Holdings Ltd.,

292 F.3d 361 (3d Cir. 2002)............................................................................................... passim

iii .

Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003)....................................................................................... 11

Simeone v. Bombardier-Rotax GMBH,

360 F.Supp.2d 665 (E.D. Pa. 2005) ................................................................................... passim Superior Coal Co. v. Ruhrkohle, A.G.,

83 F.R.D. 414 (E.D. Pa. 1979).................................................................................................... 8 Vogel v. Imperial Chemical Industries Limited,

443 F.2d 257 (3d Cir. 1971)...................................................................................................... 13 Waldron v. British Petroleum Co, Ltd.,

149 F. Supp. 830 (1957) ............................................................................................................. 6 Williams v. Canon,

432 F.Supp. 376 (C.D. Cal. 1977) ............................................................................................ 11 Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000)........................................................................................................ 11 Zenith Radio Corp. v. Matsushita Elect. Indus. Co.,

402 F. Supp. 262 (E.D. Pa. 1975) ............................................................................................... 8 Zippo Mfg. Co. v. Zippo Dot Com, Inc.,

952 F. Supp. 1119 (W.D. Pa. 1997).......................................................................................... 12

iv .

The Direct Purchaser Plaintiffs, by the undersigned Interim Co-Lead Counsel, submit this

memorandum of law in opposition to Defendant Imperial Chemical Industries PLC’s Motion to

Dismiss Plaintiffs’ Consolidated Complaint for Lack of Personal Jurisdiction (“ICI Jurisdictional

Motion”) and Defendant Lucite International Limited’s Motion to Dismiss for Lack of Personal

Jurisdiction (“Lucite Jurisdictional Motion”).

I. BACKGROUND

The legal and factual support for the allegations at issue in this action are set forth

comprehensively in the Direct Purchaser Plaintiffs’ Memorandum of Law in Opposition to

Defendants' Motion to Dismiss Consolidated Amended Class Action Complaint (“Complaint”)

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, filed on December 21, 2006.

The Court is respectfully referred to that brief for an exhaustive discussion of the manner in

which defendants effectuated their unlawful international conspiracy to fix the prices of methyl

methacrylate (“MMA”) and polymethyl methacrylate (“PMMA”) in the United States and the

manner in which the Complaint states a proper claim for relief under Section 1 of the Sherman

Act, 15 U.S.C. § 1.

A. Jurisdictional Motions and Discovery

On October 6, 2006, defendants Imperial Chemical Industries PLC (“ICI”) and Lucite

International Limited (“Lucite Limited”) filed motions pursuant to Rule 12(b)(2) of the Federal

Rules of Civil Procedure to dismiss the Direct Purchasers’ claims against them on the alleged

ground lack of personal jurisdiction (collectively, the “Jurisdictional Motions”). Significantly,

other foreign-based defendants in this litigation -- Arkema S.A., Degussa A.G., and Röhm

GmbH & Co. KG -- conceded and did not challenge the propriety of this Court’s exercise of

personal jurisdiction over them.

1

As provided in paragraph 4 of this Court’s Case Management Order dated August 21,

2006, the Direct Purchaser Plaintiffs on September 29, 2006 filed Rule 34 requests seeking the

production of documents from ICI and Lucite Limited relating to the discrete issue of personal

jurisdiction (“Jurisdictional Document Requests”). On November 9, 2006, ICI and Lucite

Limited filed objections and responses to the Jurisdictional Document Requests. Upon review of

these objections and responses, the Direct Purchaser Plaintiffs determined that ICI and Lucite

Limited fell short of meeting their discovery obligations on contested jurisdictional issues.

Accordingly, meet-and-confer discussions took place among counsel for the parties on

November 16, 2006 (separate discussions with both ICI and Lucite Limited); November 27,

2006 (Lucite Limited only); November 30, 2006 (ICI only) and December 27, 2006 (ICI only).

As part of their good-faith effort to resolve the issues in dispute informally, the Direct

Purchaser Plaintiffs took the unusual step of providing ICI an objective, non-adversarial analysis

of how the information already in the public domain supports a finding that this Court has a

legally appropriate basis to exercise jurisdiction over ICI in this litigation; at the same time, the

Direct Purchaser Plaintiffs recognized that, if this motion had to be litigated, ICI would face a

genuine burden in attempting to locate and produce documents that pre-dated the divestiture of

its MMA/PMMA business in 1999. In an attempt to alleviate ICI’s discovery burden, the Direct

Purchaser Plaintiffs agreed to accept responsive information in the form of a factual narrative in

lieu of a full-scale document production. See Letter dated November 21, 2006 from Anthony J.

Bolognese to ICI's counsel (“Nov. 21 Letter,” attached hereto as Exhibit 1) and Letter dated

November 22, 2006 from Anthony J. Bolognese to ICI's counsel (“Nov. 22 Letter,” attached

hereto as Exhibit 2).

2

ICI rejected the Direct Purchaser Plaintiffs’ invitation to withdraw its motion on the basis

of the public domain facts presented and analyzed in the Nov. 21 Letter, and it failed to

reciprocate the Direct Purchaser Plaintiffs’ good faith by providing a jurisdictional discovery

narrative that furnished little substantive information responsive to the Direct Purchaser

Plaintiffs’ requests. See Letter dated December 11, 2006, from ICI's counsel to Anthony J.

Bolognese (“ICI Discovery Response,” attached here as Exhibit 3).4 Nonetheless, because the

Direct Purchaser Plaintiffs are sincere in their belief that they are now in possession of public

facts sufficient for the Court to deny the ICI Jurisdictional Motion, and in an effort to avoid

burdening the Court unnecessarily with a discovery dispute, the Direct Purchaser Plaintiffs have

elected to respond to this motion without insisting upon further jurisdictional discovery they

were entitled to receive from ICI. By contrast, Lucite Limited did produce relevant corporate

documents, and it made its Chief Executive Officer, Ian Lambert, available for a deposition on

4 After the Direct Purchaser Plaintiffs provided ICI with the Nov. 21 Letter specifying the public-domain evidence (including specific web site references) that the Direct Purchaser Plaintiffs believe supports this Court’s finding of personal jurisdiction over ICI, ICI altered its corporate web site, deleting information identified as material evidence in the Nov. 21 Letter. By letter dated December 29, 2006 (“Dec. 29 Letter”) from Anthony J. Bolognese to ICI's counsel, counsel for the Direct Purchaser Plaintiffs recounted the circumstances under which ICI’s deletion of material evidence was discovered, and he specifically requested ICI to provide an electronic “snapshot” of the ICI web site in the form that it existed at the time of the Nov. 21 Letter. A copy of the Dec. 29 Letter is attached hereto as Exhibit 4, which also includes the e-mail referenced therein from ICI's counsel. ICI has failed to respond to this request. Pending definitive action by ICI dispelling the confusion that it has created in altering its web site after its receipt of the Nov. 21 Letter, all internet citations in this memorandum are to ICI’s web site in the form that it existed online on and immediately before November 21, 2006. See Exhibit 1 hereto. Plaintiffs believe that it would be appropriate under the circumstances for the Court to strike ICI's motion to dismiss, to draw an adverse inference against ICI's position on its motion to dismiss, and/or to compel ICI to produce an electronic snapshot of its internet web site as it existed on and immediately before November 21, 2006.

3

December 4-5, 2006 in New York City. The jurisdictional significance of all of these facts will

be discussed in detail below.

B. Jurisdictional Arguments Advanced by ICI and Lucite Limited Both ICI and Lucite Limited argue that the Complaint should be dismissed for lack of

personal jurisdiction on the following grounds:

The “only” contact that ICI and Lucite Limited maintain with their American subsidiaries is through “mere stock ownership”; ICI and Lucite Limited further claim that they are uninvolved in the “day-to-day operations” of their U.S subsidiaries and they exercise no “dominance or control” over these subsidiaries. See Defendant Imperial Chemical Industries PLC’s Memorandum in Support of its Motion to Dismiss Plaintiffs’ Consolidated Class Action Complaint for Lack of Personal Jurisdiction (“ICI Brief”)5 at 2-3, 4, 11; Memorandum of Law in Support of Defendant Lucite International Limited’s Motion to Dismiss the Complaints for Lack of Personal Jurisdiction (“Lucite Limited Brief”) at 5, 136

Because ICI and Lucite Limited have established corporate identities separate

from their United States subsidiaries, ICI and Lucite Limited are insulated from liability for their subsidiaries’ unlawful conduct unless these defendants’ chosen corporate structures were a sham and plaintiffs can show that corporate formalities were disregarded in a way that would entitle them to “pierce the corporate veil.” ICI Brief at 7-11; Lucite Limited Brief at 12-14.

Based on their characterization of the business, operations and finances of their

United States subsidiaries as “wholly independent” from the business, operations and finances of ICI and Lucite Limited, these defendants conclude that there was no reason for them to reasonably anticipate that they could have been “haled” into court in the United States and there are no contacts that would justify an exercise of personal jurisdiction over them by a United States federal court. ICI Brief at 4-7, 11-12; Lucite Limited Brief at 1-7, 10-12.

In claiming that its defense of this litigation in the United States District Court for the

Eastern District of Pennsylvania would be “unreasonable and onerous,” Lucite Limited has

5 See also Declaration of Adam Westley, Assistant Company Secretary of ICI, dated October 6, 2006 (“Westley Declaration”). 6 See also Affidavit of Ian Robin Lambert, Lucite Limited’s Chief Executive Officer, dated October 6, 2006 (“Lambert Affidavit”).

4

further contended that this Court’s exercise of personal jurisdiction would “offend traditional

notions of fair play and substantial justice.” Lucite Limited Brief at 15.

As demonstrated below, none of the above arguments justify dismissal of the Direct

Purchaser Plaintiffs’ Complaint on ground of lack of personal jurisdiction. On the contrary, both

ICI and Lucite Limited, now and in the past, have maintained pervasive contacts with the United

States that are much greater than the bare minimum “continuous and systematic contacts”

necessary to establish general jurisdiction under Helicopteros Nacionales de Columbia, S.A. v.

Hall, 466 U.S. 408, 416 (1984) and controlling Third Circuit authority. ICI and Lucite Limited’s

Rule 12(b)(2) motion should be denied.

II. ARGUMENT

A. The Controlling Legal Standards In Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004),7 the Third Circuit

held that:

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff bears the burden of establishing the court's jurisdiction over the moving defendants…. However, when the court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor…. A court may exercise either general or specific personal jurisdiction. Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 369 n.1 (3d Cir. 2002), citing Int’l Shoe Co. v. Washington, 326

U.S. 310, 317 (1945). General jurisdiction exists when a defendant's contacts with the forum

state are "continuous and systematic." Helicopteros, 466 U.S. at 416. Specific jurisdiction exists

7 Citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) and Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir 1992).

5

when the claim "arises out of or relates to" a defendant's contacts with the forum.8 Id. at 414.

“[P]ersonal jurisdiction in federal antitrust cases is assessed on the basis of a defendant’s

aggregate contacts with the United States as a whole.” In re Automotive Refinishing Paint

Antitrust Litigation, 358 F.3d 288, 298 (3d Cir. 2004); Pinker, 292 F.3d at 369 (3d Cir. 2002); In

re Automotive Refinishing Paint Antitrust Litigation, 2002 WL 31261330, at *9 (E.D. Pa. July

31, 2002).

To determine "the sufficiency of a defendant's contacts with the [national] forum, a court

should look at the extent to which the defendant ‘availed himself of the privileges of American

law and the extent to which he could reasonably anticipate being involved in litigation in the

United States.'" Pinker, 292 F.3d at 369. The Court should “approac[h] each case individually

and tak[e] a ‘realistic approach’ to analyzing a defendant’s contacts with a forum.” Miller Yacht,

384 F.3d at 100 (internal quotations omitted).

Although ICI and Lucite Limited argue erroneously that their decision to conduct

business worldwide through separately incorporated subsidiaries created an insurmountable

barrier to the exercise of jurisdiction against them by American courts,9 the Third Circuit has

8 Specific jurisdiction depends upon whether the Fifth Amendment’s Due Process Clause has been satisfied. Pinker, 292 F.3d at 368-369. Two threshold standards must be met (1) defendant must have constitutionally sufficient “minimum contracts” with the forum and (2) subjecting the defendant to the court’s jurisdiction must comport with “traditional notions of fair play and substantial justice.” Id. See also Commodity Futures Trading Commission v. Worldwide Commodity Corp., 366 F. Supp.2d 276, 280-281 (E.D. Pa. 2005). 9 See ICI Brief at 7-11; Lucite Brief at 12-14 (and inapposite cases cited therein). However, legal liability cannot be evaded so easily through corporate formalism. In Zenith Radio Corp. v. Matsushita Elect. Indus. Co., 402 F. Supp. 262 (E.D. Pa. 1975), a case in which the Court held that a Japanese electronics corporation was subject to personal jurisdiction in antitrust action under Section 12 of the Clayton Act based on the domestic conduct of the corporation’s U.S. subsidiary, then-District Court Judge A. Leon Higginbotham, Jr. analyzed several vintage cases that rejected the type of argument advanced by ICI and Lucite Limited here. For example, in Zenith, 402 F. Supp. at 321-322, Judge Higginbotham quoted with approval the observation in Waldron v. British Petroleum Co, Ltd., 149 F. Supp. 830, (1957), that “[a] corporation may be a

6

expressly acknowledged “the difficulty of formulating bright-line rules in the personal

jurisdiction analysis,” and it has emphasized instead the “fact sensitive nature” of the personal

jurisdictional analysis. Miller Yacht, 384 F.3d at 100 (internal citations omitted).

Aside from direct contacts that ICI and Lucite Limited maintain with the United States,

an important question for determination by the Court is whether ICI and its American

subsidiaries, and Lucite Limited and its American subsidiaries, each constitute “a single

functional and organic entity” in which ICI and Lucite Limited exercise control of their

respective subsidiaries’ “day-to-day operations” in such a way that the subsidiaries conduct

business as a “mere department” of ICI and Lucite Limited. Directory Dividends, Inc. v. SBC

Communications, Inc., 2003 WL 21961448, at *3-*4, *8 (ED. Pa. July 2, 2003), citing In re

Latex Gloves, 2001 WL 964105, at *3-*4 (E.D. Pa. (Aug. 22, 2001); Arch v. American Tobacco

Co., Inc., 984 F. Supp. 830, 837 (E.D. Pa. 1997). See also, Simeone v. Bombardier-Rotax

GMBH, 360 F.Supp.2d 665, 678 (E.D. Pa. 2005).10

fiction of the law but there is no reason to carry the fiction to the extreme of saying that a corporation which has wholly owned subsidiaries performing services in the local jurisdiction which ordinarily would be performed by service employees, or making sales which ordinarily would be made by a sales department, is in fact not transacting business in that jurisdiction, particularly when the entire corporate set-up of the defendant shows that it is designed to operate to a substantial degree through separate corporate entities responding to the wishes and directions of the parent and providing the revenues sought by the parent. We would be exalting fiction over fact if w[e] were … to conclude that under those circumstances the parent company was not in fact transacting business in this District through the instrumentality of its wholly owned subsidiaries.” 10 While both ICI and Lucite Limited devote multiple pages of their briefs to the indisputable proposition that “mere stock ownership” alone does not confer personal jurisdiction against a foreign corporate parent (see ICI Brief at 2-3, 4, 11 and Lucite Brief at 5, 13), the jurisdictional facts in this case involve far more than “mere stock ownership.” Moreover, a foreign parent’s control over 100 percent of its subsidiaries’ stock is one important factor that affirmatively militates in favor of a court’s exercise of personal jurisdiction over a subsidiary’s corporate parent.

7

Third Circuit law requires the Court to examine the relationship between ICI and its

American subsidiaries on one hand, and the relationship between Lucite Limited and its United

States subsidiaries on the other. This examination is performed “in terms of the legal

interrelationship of the entities, the authority to control and the actual exercise of control, the

administrative chains of command and organizational structure, the performance of functions,

and the public's perception." Simeone, 360 F. Supp.2d at 675 (emphasis supplied), quoting In

re Latex Gloves, 2001 WL 964105, at *3.

In the Zenith antitrust action, 402 F. Supp. at 327-328 (E.D. Pa.1975), Judge

Higginbotham identified a “set of factors which the court should examine to determine whether a

corporation, though superficially absent from a district, is in fact transacting business there

through a subsidiary or corporation.” In the time since, this Court has further developed and

relied upon these “non-exhaustive factors” to guide the Court in its analysis of personal

jurisdiction issues in cases like this involving the conduct of corporate parents and their

operating subsidiaries. As Judge Schiller summarized in Simeone, 360 F. Supp.2d at 675-676:

As part of this inquiry, courts in this District often consider the following discrete factors: (1) ownership of all or most of the stock of the subsidiary; (2) common officers and directors; (3) a common marketing image; (4) common use of a trademark or logo; (5) common use of employees; (6) an integrated sales system; (7) interchange of managerial and supervisory personnel; (8) performance of business functions by the subsidiary which the principal corporation would normally conduct through its own agents or departments; (9) marketing by the subsidiary on behalf of the principal corporation, or as the principal's exclusive distributor; and (10) receipt by the officers of the subsidiary corporation of instruction from the principal corporation. Directory Dividends, 2003 WL 21961448, at *3; In re Latex Gloves Prods., 2001 WL 964105, at *4; Parker v. DPCE, Inc., Civ. A. No. 91-4829, 1992 WL 501273, at *5, 1992 U.S. Dist. LEXIS 16921, at *15 (E.D. Pa. Nov. 3, 1992); Superior Coal Co. v. Ruhrkohle, A.G., 83 F.R.D. 414, 421 (E.D. Pa. 1979). These factors are best viewed as a non-exclusive guide to help resolve the broader issue of whether the companies have a "single functional and organic identity." See Directory

8

Dividends, 2003 WL 21961448, at *3 (citing In re Latex Gloves, 2001 WL 964105, at *3-*4.11

This evidence demonstrates that ICI's and Lucite's subsidiaries do operate in the United

States as the agent and alter ego of their foreign corporate parents, and that both ICI and Lucite

Limited conduct their global businesses through networks of international subsidiaries that

function collectively as a "single functional and organic entity." Together with other evidence

demonstrating that ICI and Lucite Limited maintain substantial direct contacts with the United

States, the facts establishing that these defendants operated with their respective subsidiaries as

"single functional and organic entities" prove that there are more than the minimal contacts with

the United States necessary to establish personal jurisdiction over them in this litigation.

B. ICI’s Pervasive Contacts With the United States Are Sufficient to Sustain Personal Jurisdiction

1. ICI’s Issuance and Marketing of American Depositary Receipts

(“ADRs”)

Above and beyond the manner in which ICI conducted its regular business operations in

the United States through dominated and controlled subsidiaries (see, infra, at 14-26), ICI has

purposefully availed itself of the benefits of United States law, and it has subjected itself to

jurisdiction in United States federal courts, by virtue of its issuance and trading of ADRs12 on the

New York Stock Exchange (“NYSE”).

11 After identifying the identical factors analyzed in Simeone, Judge Surrick offered the following observation in Directory Dividends, 2003 WL 21961448, at *3 and n.3: “The Court ‘should examine all relevant factors that relate to the intimacy of the relationship between the parent and subsidiary to assess whether the contacts of the subsidiary [with the forum] should be imputed to the parent.’ Arch, 984 F. Supp. at 837 (stating that the test ‘perforce incorporates all the factors that have been historically used in determining whether a subsidiary is an alter ego or agent of the parent.’… The Arch test is commonly relied on in this District.” See Latex Gloves, 2001 WL 964105, *3 n.10 (citing cases). 12 ADRs are “financial instruments that allow investors in the United States to purchase and

9

According to ICI’s Annual Report and Accounts 2005 (“ICI 2005 Annual Report”),

which was incorporated in a Form 6-K filed with the U.S. Securities and Exchange Commission

(“SEC”) on or about March 13, 2006 (relevant excerpts from which are attached here as Exhibit

5), at 152-153, approximately 8,200 ICI ADRs trade on the NYSE, representing 5.27 percent of

the Ordinary Shares of ICI stock traded on the London Stock Exchange.

In Pinker, 292 F.3d at 371-373, the Third Circuit reversed a district court dismissal of a

securities fraud action and found specific jurisdiction on the ground that, by sponsoring ADRs

traded on the NYSE, a foreign defendant took “action” in a “deliberate attempt to solicit

American capital,” thus purposefully availing itself of the “privilege of conducting activities” in

the United States such that it had “adequate notice that it may be haled into an American court.”

Although the Third Circuit in Pinker found it unnecessary to address whether the foreign

defendant had the “continuous and systematic contacts” needed to establish general jurisdiction

under the facts of that case, the court reasoned that it was not “unfair or inconsistent with

‘traditional notions of fair play and substantial justice’” to require defendant to appear in federal

court to defend plaintiff’s claims on the merits.

sell stock in foreign corporations in a simpler and more secure manner than trading in the underlying security in a foreign market.” Pinker, 292 F.3d at 365. “An ADR is a receipt that is issued by a depositary bank that represents a specified amount of a foreign security that has been deposited with a foreign branch or agent of the depositary, known as the custodian…. The holder of an ADR is not the title owner of the underlying shares; the title owner of the underlying shares is either the depositary, the custodian, or their agent…. ADRs are tradable in the same manner as any other registered American security, may be listed on any of the major exchanges in the United States or traded over the counter, and are subject to the Securities Act and the Exchange Act.” Pinker, 292 F.3d at 367. “ADRs are one of the preferred methods for trading foreign securities in the United States, with the value of ADRs bought and sold annually in the hundreds of billions.” Id. (citing, Bruce L. Hertz, American Depository Receipts, 600 P.L.I./Comm. 237, 239 (1992)).

10

This particular issue was considered under a general jurisdiction analysis in Newport

Components, Inc. v. NEC Home Electronics, 671 F. Supp. 1525, 1539-1540 (C.D. Cal 1987), an

antitrust case in which defendant NEC Corporation (“NEC”), a Japanese corporation operating

through its subsidiaries as a worldwide manufacturer and distributor of computers and

communications equipment, issued ADRs that were traded on the “NASDAQ” over-the-counter

market in the United States. There, the Central District of California held that:

The Court believes that by registering with, and transacting business under the auspices of, the United States Securities and Exchange Commission, NEC has availed itself of the privileges and protections of the United States and its government. These benefits…constitute one form of “systematic and continuous” contact with the United States as a whole. Given the obvious benefits the use of ADRs provide to NEC, and in light of the fact that these securities are actively traded in the United States, and regulated by federal law, the Court believes it is proper to consider the trading of these securities for purposes of establishing personal jurisdiction.

Id. at 1540.13

The compelling logic expressed by the courts in Pinker and NEC applies directly to ICI

in this litigation.

In soliciting and using capital obtained from American investors, ICI has voluntarily

subjected itself to the reporting requirements of the Securities Exchange Act of 1934, the

Sarbanes-Oxley Act of 2002 and the rules of the NYSE. Many of the specific disclosures

provided by ICI in its internationally disseminated 2005 Annual Report (Exhibit 5) reflect ICI’s

13 In NEC, the court analyzed this issue in terms of whether a foreign defendant maintained sufficient “national” contacts with the United States as opposed to more restrictive and limited contacts with a specific state forum. See NEC, 671 F. Supp. at 1540 n. 17 (distinguishing Williams v. Canon, 432 F.Supp. 376, 379 (C.D. Cal. 1977)). In more recent “state contacts” cases, courts have also held that a foreign defendant’s ADR “list[ing] on the New York Stock Exchange is a militating factor in favor of conferring jurisdiction.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 330 (S.D.N.Y. 2003) (emphasis supplied) (citing Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 97 (2d Cir. 2000)).

11

effort to satisfy its mandatory obligation to comply with American securities laws and

regulations.14

ICI also works hand-in-glove with United States-based Citigroup, the Depositary of ICI’s

ADRs, in marketing the ADRs to investors in the United States. See ICI 2005 Annual Report

(Exhibit 5) at 155. For example, ICI’s web site links directly to a web site maintained by

Citigroup, the former of which invites “potential investors” to review ICI’s Annual Report and

other documents filed by ICI with the SEC, and the latter of which describes the benefits of ADR

investments and provides detailed information about XXX. XXX XXXXXXXXXX

XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX.15

SEC Edgar Filing Information for ICI’s Form 20-F filed on March 31, 2006 also

demonstrates that has ICI represented to American regulators and investors that it maintains an

official “Mailing Address” in the United States at “C/O ICI Americas, 10 Finderne Avenue,

Bridgewater, N.J. 08807.”16

14 ICI’s alleged failure to comply with United States securities laws resulted in legal proceedings against ICI in the Southern District of New York, which was not dismissed on jurisdictional grounds but was instead settled by ICI out of court. See infra at 21 n. 25. 15 Intentional “commercial interactivity” between a web site host and customers in the forum jurisdiction has been held to support a finding of personal jurisdiction. Here, ICI specifically used its interactive web site as a vehicle to encourage American investors to purchase ICI ADRs through Citigroup. This type of commercial use of the internet supports a finding that ICI’s contacts with the United States are sufficient for this Court to exercise personal jurisdiction over ICI. See Toys “R” Us, 318 F.3d at 452 (citing, Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). As noted, supra, at 3 n.1, the web pages referenced above (like many of the other web pages referenced throughout this memorandum) have been taken down, altered or relocated by ICI after the Direct Purchaser Plaintiffs called the web sites to ICI’s attention in the Nov 21 Letter as a factor supporting personal jurisdiction in this litigation. 16XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. It is revealing that ICI has chosen to side step this relevant fact in its effort to persuade the Court that it has virtually no contact at all with the United States. See Westley

12

Considered in isolation or conjunction with ICI’s other abundant “continuous and

systematic contacts” with the United States, ICI’s issuance and trading of ADRs in the United

States demonstrates the propriety of this Court’s exercise personal jurisdiction over ICI in this

litigation.

2. ICI’s Ownership of United States Patents

Another important factor establishing personal jurisdiction over foreign-based defendants

is the ownership of United States patents. Automotive Refinishing, 2002 WL 31261330, at *9,

aff’d, 358 F.3d 288, 298 (3d Cir. 2004). ICI holds numerous patents issued by the United States

Patent Office (“U.S.P.T.O.”). See ICI Discovery Response at 3 (“ICI applied for roughly twenty

patents with the U.S.P.T.O. during the 2002-05 time period, several of which it has licensed to

third-parties in the U.S.”). During the preceding period – including the relevant period before ICI

sold its MMA and PMMA business, for which ICI improperly withheld discovery from the

Direct Purchaser Plaintiffs – ICI has also owned numerous other patents. See esp@cenet

database search results attached hereto as Exhibit 6. Moreover, the Third Circuit affirmed a

district court’s exercise of personal jurisdiction against a predecessor of ICI on basis of its

interference applications filed by with the U.S.P.T.O. Vogel v. Imperial Chemical Industries

Limited, 443 F.2d 257 (3d Cir. 1971).

Given these undisputed facts concerning ICI’s longstanding and systematic invocation of

the benefits of the United States patent laws, ICI’s motion to dismiss for lack of personal

jurisdiction borders on the frivolous.

Declaration at ¶ 6 (“ICI does not have any: (a) office; (b) manufacturing plant; (c) post office box; or (d) telephone listing in the United States”).

13

3. ICI and its Subsidiaries in the United States Operate as a Single Functional and Organic Entity

As discussed supra at 6-9, courts in the Third Circuit analyze personal jurisdiction over

non-resident defendants by evaluating several “non-exhaustive” factors that are used to help

resolve the broader issue of whether the companies have a “single functional and organic

identity.” Simeone, 360 F. Supp. 2d at 675, citing Directory Dividends 2003 WL 21961448, at

*3; and Latex Gloves, 2001 WL 964105, at *3.

Measured from the vantage-point of the public’s “perception,” the formal legal

distinctions emphasized by ICI in this motion do not exist; instead, the “legal interrelationship”

of the ICI entities; the ICI’s Board of Directors’ “authority to control” the activities of its

subsidiaries and its “actual exercise of control” over those activities; and ICI’s “administrative

chains of command and organizational structure,” together with “the performance of functions”

throughout the globally integrated ICI organization demonstrate that ICI and its subsidiaries

operate as a prototypical “single functional and organic identity.” Id.

The following facts, among others, support this conclusion:

a. ICI’s 100% ownership of the stock of its U.S. subsidiaries

A corporate parent’s 100 percent ownership of the shares of its subsidiary is a factor

supporting personal jurisdiction. Directory Dividends, Inc., 2003 WL 21961448, at *4 and

Simeone, 360 F. Supp.2d at 676.

As shown by the organizational charts included at pages 4-5 of the ICI Discovery

Response (Exhibit 3), ICI owns 100% of the stock of United States entities known as “ICI

American Holdings Inc.” and “National Starch and Chemical.” ICI American Holdings Inc. in

turn owns 100% of the stock of ten other United States subsidiaries, including the Glidden

Company and Indopco, Inc. See also 2005 ICI Annual Report at 131.

14

b. ICI’s Common Worldwide Corporate Image

ICI’s marketing of ADRs and other products in the United States is achieved through a

common corporate image, which is reflected consistently in ICI’s public reports filed with the

SEC and its global Web site.17 This common corporate image effectively obscures corporate

distinctions between and among the entities that comprise what ICI refers to universally as the

“ICI Group.”

As the court held in Simeone, 360 F. Supp.2d at 678, personal jurisdiction over a

corporate parent is supported when the parent’s “representations to the public” indicate that the

parent viewed the subsidiary “as simply a department of itself” and when the parent’s annual

reports regularly employed “[p]hrases blurring the … companies together.”

Throughout the ICI 2005 Annual Report, ICI blends each and every component of its far-

flung network of wholly owned subsidiaries into one single entity, and it presents the business,

operations, finances and financial performance of those subsidiaries as though they were

indistinguishable from ICI itself. See, e.g., ICI 2005 Annual Report at second introductory page

(“‘Company’ means Imperial Chemical Industries PLC. ‘ICI,’ ‘ICI Group’ or ‘Group’ means

Imperial Chemical Industries PLC and its subsidiary companies”) (emphasis supplied).

When ICI does properly acknowledge a special American dimension in its globally

integrated operation, it does so in the context of emphasizing how critically important the United

States is to the international corporate parent in London. For example, in describing National

Starch, a n ICI subsidiary based in Bridgewater, New Jersey,18 ICI disclosed that “National

17 As noted above, ICI has taken down, altered or relocated relevant portions of its web site after the Direct Purchaser Plaintiffs’ Nov. 21 Letter cited specific web site pages as evidence establishing personal jurisdiction in this litigation. 18 This is the same New Jersey location that ICI reported to the SEC as its United States “Mailing Address.” See supra at 12.

15

Starch comprises 32% of ICI’s revenues” and that 39 percent “of ICI’s revenue is generated from

customers based in North America.” ICI 2005 Annual Report at 6.

ICI’s global web site prominently touts the revenue contributions of National Starch,

which is identified correctly as “a member of the ICI Group.”

http://www.ici.com/ICIPLC/divisions/Star . This web page, whose internet address indicated that

U.S.-based National Starch is a merely a “division” of ICI, featured the photograph of National

Starch’s recently retired Chairman and Chief Executive Officer William Powell, who is also one

of six “Executive Directors” of ICI in England.19 See infra at 18. As the court held in

Automotive Refinishing, 2002 WL 31261330, at *9, a web site highlighting a foreign-based

defendant’s “significant market position in North America” affirmatively supports a finding of

personal jurisdiction.20

19 William Powell retired from ICI and National Starch during 2006. He was replaced on an interim basis at National Starch by ICI’s Chief Executive, John McAdam. See http://news.nationalstarch.com/NewsStory.asp?newsItemId=526. 20 ICI’s “Group Overview” web page (http://www.ici.com/ICIPLC/ici-overview/index.htm) represents that “the ICI Group is a huge international business” that “comprises the International Businesses of National Starch,” as well as other global operating divisions, including Quest, Uniqema and ICI Paints. As the 2005 ICI Annual Report makes clear, each of these “international businesses” have a significant physical presence and financial interest in the United States. For example, Quest and National Starch joined together in funding a 17,000 square-foot research facility in Philadelphia (2005 ICI Annual Report at 11); Uniqema, which accounted for 11 percent of ICI’s sales in 2005, has “major operations in North America,” including a facility in New Castle, Delaware (2005 ICI Annual Report at 12); ICI Paints, which includes the Glidden Paints brand name familiar to American consumers and which accounted for 40 percent of the ICI Group’s sales in 2005, maintains “[m]ajor manufacturing facilities” in the United States, which serve ICI’s “significant interest in both trade and retail markets” in the United States, including a “significant relationship” in the United States market with The Home Depot. (2005 ICI Annual Report at 13). From these disclosures, one could reasonably conclude that ICI’s contacts with the United States are not only “ongoing and systematic,” but are indispensable to ICI’s success or failure as a global company. It is the context of these facts that the Court should evaluate the apparently conflicting representations in the Westley Declaration at ¶ 5 (ICI “does not conduct any business in the United States’); ¶ 7 (“ICI does not own or lease any property in the United States”); and ¶ 8 (“ICI does not engage in any sales or service

16

ICI has for years conveyed a common worldwide corporate image to international

customers and investors. As but one example, ICI’s global web site displays the trading price of

ICI stock on the London Stock Exchange side-by-side the trading price of ICI’s ADRs on the

NYSE, with ICI reciting the slogan that ICI is “The Vital Ingredient to the World at Large.” See

http://www.ici.com/ICIPLC/home/index.jsp.

Although ICI now attempts to minimize its significance (see ICI Brief at 3; 10-11), the

Complaint at paragraph 34a alleges that ICI “coordinated a ‘worldwide advertising and

marketing’ campaign in 1996 intended to promote the branding of its acrylic products in the

United States and Europe.” This $4 million coordinated international marketing effort was the

subject of a feature story reported in one of the world’s leading financial publications. See Rich,

Stamp of Approval: Ingredient branding aims at making components as familiar as products/ A

look at ICI’s campaign, Financial Times, February 29, 1996,21 which quoted a n ICI “global”

acrylics division director who hailed ICI’s campaign as a major initiative to position ICI

worldwide as the “Intel of acrylics.” Likewise included in the article were laudatory comments

by an official employed by ICI in the United States who praised ICI for its efforts to ingrain in

the public’s mind a common worldwide image for his company. While ICI ignores such

precedent, the cases cited above demonstrate that these are compelling facts demonstrating the

propriety of the Court’s exercise of jurisdiction over ICI in this case. See, i.e., Directory

Dividends, 2003 WL 21961448, at *4 (personal jurisdiction is proper where a “single, unified

brand” identity makes it “easier for customers to find and do business … across geographic

boundaries and product lines”). activities in the United States”). Facts in the public domain show that ICI is not the passive, uninterested “phantom” parent corporation portrayed in the Westley Declaration. 21 A copy of this Financial Times article is attached hereto as Exhibit 7.

17

c. ICI’s “Overlapping” Management

Overlapping directors and management and “common use of employees and interchange

of managerial and supervisory personnel” are factors supporting personal jurisdiction. Directory

Dividends, 2003 WL 21961448, at *4-5. Again, information disclosed publicly in ICI’s 2005

Annual Report demonstrates that this factor supports the Court’s exercise of jurisdiction over ICI

in this litigation.

Until his recent retirement, U.S. citizen William H. Powell served as one of six

“Executive Directors” of ICI and as the Chairman and CEO of U.S.-based National Starch.22 See

ICI 2005 Annual Report at 32. In 2005, Powell attended eight out of eight meetings of ICI’s

Board of Directors, (ICI 2005 Annual Report at 36), for which he received a base salary of

₤414,000 ($754,500), the second highest of ICI’s 11 directors (ICI 2000 Annual Report at 45 and

n.8).23 As an important part of his ICI Board membership, Powell exercised global corporate

responsibility for ICI’s “Sustainabilty Development” program (see infra at 24), under which ICI

imposes company-wide standards on its subsidiaries throughout the world.

Other senior members of ICI’s corporate management in London speak with a distinctly

American accent. For example, U.S. citizen and attorney Joseph T. Gorman is one of six “non-

Executive Directors” on ICI’s board, and he is the Chairman of ICI’s Audit Committee, a

critically important corporate governance body that imposes uniform requirements (some of

22 See supra at 16. 23 This does not include additional compensation in the form of awards under ICI’s “Performance Growth Plan” and share options in the form of ADRs traded on the NYSE (ICI 2005 Annual Report at 46-47).

18

which are designed to comply with U.S. securities laws) upon ICI’s subsidiaries worldwide. ICI

2005 Annual Report at 32, 36.24

Leonard J. Berlik and Andy M. Ransom also serve as non-Executive Directors of ICI,

and they are members of ICI’s “Executive Management Team.” Berlik is a U.S. citizen and the

Executive Vice President of Uniqema, who worked for 28 years (from 1972 to 2000) with New

Jersey-based National Starch. Ransom is ICI’s General Counsel, Executive Vice President and

Secretary, who worked as “Vice President and General Counsel for ICI in the Americas, based in

New Jersey, USA” from 1998-2000. (2005 Annual Report at 32, 34, 37).

Because ICI improperly refused to provide any discovery for the period before 2002,

including the years before ICI’s divestiture of ICI Acrylics in late 1999 (see supra at 3; Exhibits

2 and 3), the Direct Purchaser Plaintiffs cannot provide the Court with a wealth of historical

information concerning “overlapping” management between ICI in London and its subsidiaries

in the United States. However, as alleged at paragraph 68 of the Complaint, the president and

chief executive officer of [Tennessee-based] ICI Acrylics, Inc. was Ross H. McMillan, who also

served as an officer of the parent company ICI as “vice president for acrylic resins in the

Americas.” ICI does not deny this allegation, as indeed it cannot.

Here, as in Directory Dividends and other cases, common overlapping management is a

factor that militates persuasively in favor of personal jurisdiction. 24 ICI’s Audit Committee “assists the Board in the discharge of its responsibilities for corporate governance, financial reporting and corporate control,” including, inter alia, (a) reviewing the Group’s plans for achieving compliance … with Section 404 of the Sarbanes-Oxley Act 2002, regarding internal control over financial reporting”; (b) “the Group’s compliance with…the New York Stock Exchange Corporate Governance rules”; and (c) “review” of ICI’s “Internal Audit function.” (ICI 2000 Annual Report at 37). As stated in 2005 Annual Report at 37, “During 2005, as part of the Group’s programme to meet the requirements of Section 404 of the Sarbanes-Oxley Act 2002, the Internal Audit function has focused principally on identifying and developing [ICI’s] plan to identify, document and test key controls over financial reporting.”

19

d. ICI Controls and Dominates its American Subsidiaries

In determining whether ICI and its subsidiaries constitute “a single functional and organic

entity” in which the parent’s control of the subsidiaries’ “day-to-day operations” is such that the

subsidiary conducts business as a “mere department” of its corporate parent,25 the Court should

note the extremely high degree that ICI “from the top down” dictates the business operations of

its subsidiaries worldwide. The Court should also note that, far from the passive “investor”

portrayed in the ICI Brief and the Westley Declaration, ICI’s tight-fisted oversight and control

over the budgets, operations and financial performance of its subsidiaries demonstrate that ICI’s

subsidiaries exercise little independence; these subsidiaries are instead micro-managed by their

corporate parent in the United Kingdom.

As the 2005 ICI Annual Report leaves no doubt, decisions of any strategic or financial

significance are made by ICI’s board of directors in London. For example:

ICI’s board is responsible for the “overall strategy and objectives for the Group,”26 including, inter alia, (a) “revie[w of] the operational performance of the Group on a regular basis”; (b) “setting the strategic direction of the Group”; (c) “approving the annual budget and Group Finance Plan”; (d) “authorization of material borrowings and any issue of equity securities”; (e) committing to major capital expenditure, acquisitions or divestments; and (f) “approving and monitoring compliance” with corporate policies set by ICI. (2005 Annual Report at 35) (Exhibit 5).

ICI’s “Board is responsible for maintaining and reviewing the effectiveness of the

Group’s system of internal controls. The internal control systems are designed to meet the Group’s particular needs and the risks to which it is exposed … The Group’s strategic direction is regularly reviewed by the Board. Annual plans and performance targets for each business unit are set by the Chief Executive and are reviewed in total by the Board in light of the Group’s overall objectives.

25 Simeone, 360 F. Supp.2d at 678; Directory Dividends, 2003 WL 21961448, at *3-4, 8 (citing In re Latex Gloves Products Liability Litig., 2001 WL 964105, at *3-*4) and Arch, 984 F. Supp. at 837. 26 As shown above, supra at 15, ICI’s expansive definition of the term “Group” includes all of ICI’s “subsidiary companies.”

20

The processes to identify and manage the key risks to the success of the Group are an integral part of the internal control environment. Such processes include strategic planning, the appointment of senior managers, the regular monitoring of performance, control over capital expenditures and investments and the setting of high standards and targets for safety, health and environmental performance.27 (Id. at 38) (emphasis supplied)

Businesses are responsible for meeting the defined reporting timetables and

compliance with Group accounting manuals…. The Chief Executive receives a monthly summary of financial results from each business, and the Group’s published quarterly financial information is based on standardized and timely reporting process. Responsibility for monitoring compliance with Group policies and guidelines rests with the chief executives of the businesses and with senior managers at the Corporate Centre. Annual statements of compliance are provided to the Board, and these statements are reviewed by the relevant functional leader for each policy area. In turn, there is an annual report to the Audit Committee, on behalf of the Board, on the degree of compliance with Group policies and guidelines. (Id.) (emphasis supplied)

ICI is entitled to manage its global business operations in whatever fashion best serves its

corporate interests, providing that ICI does so in a manner that complies with the laws of the

various jurisdictions in which it operates, including the United States. However, what ICI cannot

do is deny plausibly that it maintains minimal contacts with the United States sufficient to

subject it to the jurisdiction of American courts.28

27 Until recently, this critical central management function was performed under the personal supervision and direction of U.S. citizen and ICI “executive” board member William H. Powell, also the Chairman and Chief Executive of ICI’s New Jersey-based National Starch. See supra at 18; infra at 24. 28 ICI was in fact “haled” into the United States District Court for the Southern District of New York by American ADR investors who claimed that ICI violated the United States securities laws. See Posniak v. Imperial Chemical Industries, PLC, No. 1:03-cv-02457-NRB (S.D.N.Y.). After the court denied ICI’s motions to dismiss, ICI settled the action in 2006. See Pacer docket sheet attached hereto as Exhibit 8. Ignoring this case, ICI relies in this motion on the materially incomplete Westley Declaration, which avers with calculated imprecision that “ICI is not a plaintiff in any suit in any court in the United States.” (Westley Declaration at ¶ 14) (emphasis supplied) Similar equivocation appears in the ICI Discovery Response at 2 (citing dismissal of Rains v. PPG Industries, Inc. 359 F. Supp. 2d 720 (S.D. Ill. 2004), a case involving the narrow question of whether ICI had the minimum contacts with the State of Illinois). However, under controlling Third Circuit law, the standard that applies in this case is whether

21

Relevant case law demonstrates that the heavy operational influence exercised by ICI’s

board is precisely the kind of control and domination that gives rise to personal jurisdiction. As

the court held in Simeone, 360 F.Supp. 2d at 676, jurisdiction over a corporate parent is

appropriate when (a) the parent maintains a “supervisory board” that serves as the parent’s

“vehicle for exchanging information” with and influencing the business decision-making of the

subsidiary; (b) the parent’s executives conduct quarterly reviews of the subsidiary; (c) the parent

determines the subsidiary’s budget (Id. at 676-677); and the parent requires the subsidiary to

“submit preliminary budgets and strategic plans… for review and challenge.” (Id. at 677)

Other corporate policies imposed by ICI upon its subsidiaries worldwide likewise evince

the kind of control and domination that give rise to personal jurisdiction.

For example, according to the 2005 ICI Annual Report:

ICI manages its global organizations through both its International Businesses and its Regional and Industrial Businesses, each of which is responsible for determining its own employees’ terms and conditions and employment policies within the framework of [corporate-wide] Employment Practices agreed by the ICI Executive Management Team,” including mandatory policies relating to (a) “Health and safety of employees”; (b) “Development of people”; (c) “Diversity”; (d) Respect for the individual; (e) “Work/life balance; (f) Organizational change”; (g) “Communication and consultation” and (h) “Performance and reward.” (2005 ICI Annual Report at 17-18) (emphasis supplied)

ICI boasts of its corporate-wide “disability discrimination policy.” (2005 ICI

Annual Report at 18) As part of the “particular attention” that it pays “to the people capability requirements to meet its strategic objectives,” ICI “monitor[s] the gender, ethnicity and national diversity of its management population.” (Id. at 16) To that end, ICI reports that of its 820 “management positions” located in North America, there was a 10% ethnic minority. (Id.)

ICI maintains what it calls a “Speak Up” whistle-blowing system that operates in

“all countries” where it has employees. The system ensures anonymity for whistle-blowers, but ICI purportedly “investigates the issue reported in each call

ICI had the requisite minimum contacts with the United States as a whole, not with any individual state. Automotive Refinishing, 358 F.3d at 298. The Rains decision is inapposite.

22

and monitors the call rate in each business and region to identify trends” (2005 ICI Annual Report at 17)

ICI’s global web site boasts of the worldwide corporation’s “code of conduct for working

and doing business in ICI,” which ICI introduces with the caption, “The Way We Do Business

Around Here” (“ICI Code of Conduct”). A copy of the ICI Code of Conduct is attached here as

Exhibit 9. In no uncertain terms, the ICI Code of Conduct warns that, “As a minimum this

requires compliance with the law in every country in which we operate… In many areas ICI

expects ethical and behavioral standards which go well beyond the minimal legal requirements.”

(ICI Code of Conduct at 2). Any breach of the ICI Code of Conduct (which deals among other

things with the use of “personally or confidential” business information and which specifically

requires compliance with various government’s antitrust laws)29 purportedly carries with it

potentially severe consequences, including “disciplinary action against those involved including

(where appropriate) dismissal.” (ICI Code of Conduct at 8). While individual business managers

are responsible in the first instance with compliance of ICI’s Code of Conduct, implementation

rests ultimately with senior management at ICI’s “Corporate Center” in London, including ICI’s

Vice President, Group Safety, Security, Health and Environment (“VP Group SSHE”) and ICI’s

Chief Internal Auditor, to whom “any significant breaches” are to be reported and in turn who is

responsible for reporting ICI Code of Compliance matters to ICI’s board of Directors. (Id.)

29 Among other things, the ICI Code of Conduct requires ICI’s employees to “familarise” themselves with different nation’s competition laws because “[p]enalties for noncompliance can be severe and can involve criminal offenses.” ICI Code of Conduct at 6. ICI specifically reminds its employees that “some countries laws (eg the US) [sic] can apply outside their countries boundaries.” Id. Apart from being an admission that the allegations at issue in this litigation (i.e., international price-fixing activities that have an effect on United States commerce) do give rise to personal jurisdiction, implementation of ICI’s Code of Conduct is also germane to the merits of the Direct Purchaser Plaintiffs’ claims.

23

The ICI Code of Conduct is one part of a broader corporate-wide program, known as “the

ICI Sustainable Development Policy,” which includes “Safety, Health and Environment”

requirements that “apply throughout ICI and [its] subsidiaries worldwide.”

http://www.ici.com/ICIPLC/ici she/2005/pages/approach/global_policy/sustainability_policy.htm.

and ICI 2005 Annual Report at 15-17. See ICI Sustainability Review 2005 (“Sustainability

Review”), attached here as Exhibit 10. ICI maintains a centralized “Sustainability Board” based

in London that “brings together senior representatives of all [of the company’s] businesses and

functions.” (Sustainability Review at 3) ICI proclaims that its "sustainability objectives" are an

"integral" part of ICI’s "Group risk management process" and a vehicle by which ICI endeavors

to “add value and deliver positive benefits not only for the businesses but also for [its] customers

and other stakeholders.” (Id.) ICI’s apparent goal is to portray itself as a “responsible corporate

citizen” that takes seriously its responsibilities under the “UN Global Compact” in the areas of

“safety, health, environmental performance and product stewardship” and in the realm of proper

corporate governance under the Sarbanes-Oxley Act. (Id. at 1, 3-4) To that purported end, ICI

conducts “global training programmes for key managers and auditors to ensure common

standards and significant improvements in safety and health.” (Id. at 4) (emphasis supplied)

ICI constantly emphasizes and demands that its subsidiaries adhere to firmly established

“common standards” that apply throughout ICI’s entire worldwide corporate organization. As the

courts made clear in Directory Dividends, Inc., 2003 WL 21961448, at *5 and Simeone, 360 F.

Supp.2d at 677, a corporate parent’s control of business at the subsidiary level through

subsidiaries’ required adherence to a code of business conduct, policy manuals and guidelines

supports the court’s exercise of personal jurisdiction. Having established and enforced common

24

policies so emphatically, ICI cannot be heard to contend that this Court lacks jurisdiction in this

case.

e. ICI and its American Subsidiaries Share Common Operational Functions

Describing the “Group Organization” of “ICI and its businesses,” the ICI 2005 Annual

Report informed American and international investors that:

[ICI’s operating businesses] are supported by Group functions that provide expertise in information technology, procurement, human resources, manufacturing, finance, sustainability, health and the environment (SHE), and applied technology, where real value can be created for ICI’s customers through the application of advanced technology across the Group. A number of senior management boards leverage the combined skills and experiences of the functional teams. The functional boards are responsible for establishing functional strategies and ensuring Group-wide implementation of best practices.

(ICI 2005 Annual Report at 9) (emphasis supplied)30

The “Group functions” described in the ICI 2005 Annual Report are a matter of critical

importance to ICI and all of its subsidiaries throughout the world, as evidenced by a speech

given in early 2006 by John McAdam, ICI’s Chief Executive, a copy of which is attached here as

Exhibit 11 (“McAdam Speech”). There, McAdam informed his audience that “substantial

bottom line improvements” had to be made by ICI to “achieve significantly higher levels of

overall performance.” (McAdam Speech at 2) After reviewing “the type and level of investment

30 Among other areas, research and development is one function that ICI coordinates closely with its many subsidiaries across the globe. Again according to the ICI 2005 Annual Report: “The technology Board, comprising the senior business R&D managers and led by the Group Vice President of R&D, is responsible for the development of the Group’s technology strategy and its implementation by the R&D staff employed by the Group’s business….The business R&D teams are complemented by a central R&D resource that aims to provide world-class capability that are common to all the businesses. The Group’s distributed technology network draws on the expertise across ICI, allowing new products and processes to be developed and exploited by individual businesses more rapidly, and stimulating new options from the combination of technical capabilities of the Group’s different businesses.” (ICI 2005 Annual Report at 15) (emphasis supplied)

25

and resource allocation for each of [ICI’s] businesses… and how they are run going forward

(McAdam Speech at 4), McAdam identified several things that ICI intended to do to “arrest”

what he described as a situation of financial “under-performance” and “profit warnings” to stock

analysts in March 2003. McAdam Speech at 5-6.

Among the solutions announced by McAdam were:

A step change in the effectiveness in all of ICI’s support functions[, including] Finance, HR, Procurement and not least Technology which underpins our product development in order to accelerate profitable top line growth…. [W]e will progressively invest to improve the effectiveness and efficiency on a ‘pan-ICI” basis of all our support Functions, starting with HR and Finance, where we will target ‘Best in Class’ levels of both service and cost.

(McAdam Speech at 6) (emphasis supplied)

Projecting that ICI’s “performance transformation programme” was expected to

“generate efficiency savings of around ₤ 170m per annum by 2011,” McAdam concluded that

the creation of a more effective and efficient pan-ICI infrastructure will free more of our

resources to focus on organic growth.” (McAdam Speech at 7) (emphasis supplied)

In this respect, as with every other factor analyzed independently above, it is apparent

that ICI and its American subsidiaries share a “single functional and organic identity” that

renders ICI amenable to personal jurisdiction in this Court. See Simeone, 360 F. Supp.2d at 675

(citing Directory Dividends 2003 WL 21961448, at *3; and Latex Gloves, 2001 WL 964105, at

*3).

C. Lucite Limited’s Pervasive Contacts With the United States Are Sufficient to Sustain Jurisdiction

1. Lucite Limited Dictated Pricing Strategy for MMA and PMMA in the

United States and Elsewhere Throughout the World

Like ICI, Lucite Limited’s attempt to divorce itself from the price-fixing activities of its

American subsidiary cannot be reconciled with the record. The MMA and PMMA sold in the

26

United States by Tennessee-based defendant Lucite International, Inc. (“Lucite Inc.”) was the

byproduct of global economic factors that were considered, analyzed and applied at the highest

levels of Lucite Limited management in the United Kingdom. The Court may therefore exercise

specific jurisdiction31 over Lucite Limited because of Lucite Limited’s own misconduct, and not

merely the coordinated misconduct of Lucite Inc. in the United States. Along with their co-

defendants (some of which like Lucite Limited were fined millions of Euros by the European

Commission for their unlawful anti-competitive conduct in Europe), Lucite Limited and Lucite

Inc. joined together to devise and implement collusive prices charged for MMA and PMMA to

customers throughout the United States during the class period.

As the Direct Purchaser Plaintiffs alleged at paragraph 57 of the Complaint:

The global MMA and PMMA markets are dominated by a small number of companies, including defendants. Defendants viewed and treated the MMA and PMMA markets as global markets. For example, tens of millions of tons of MMA were imported into the United States annually during much of the Class period. Prices charged for MMA and PMMA in Europe affected prices in the United States. Because defendants had large customers that purchased MMA, PMMA, or both in the United States and Europe, the threat of arbitrage was always present. This threat required that the respective prices for MMA and PMMA were set in relation to one another in both Europe and the United States. MMA is the principal ingredient in the manufacture of PMMA. The cost of MMA impacts the price of PMMA in the United States and throughout the world.

A memorandum written by Annie S. Veerman, Lucite Limited’s Chief Financial Officer

and Secretary, a copy of which is attached here as Exhibit 12 (“Veerman Memorandum”),

LIL005364-005370, attests to the fundamental truth of this allegation. In this memorandum,

addressed to Lucite Limited’s board of directors, Veerman explained that:

The business is driven by MMA and other monomers….Monomer prices are driven primarily by global factors eg occupacity [sic]. Regional issues are secondary given the ability that the business/industry has to ship Monomer

31 See supra at 5-6 and n.5. Specific jurisdiction exists when the claim "arises out of or relates to" a defendant's contacts with the forum. Helicopteros, 466 U.S. at 414

27

globally. Our primary risks and business drivers are linked to the upstream and downstream businesses and market conditions faced by each businesses [sic] rather than any geographic location of our assets. Pricing dynamics, both selling price and input costs, are the result of global arbitrage across broadly homogenous product groups.

* * * Our Monomer supply and demand is balanced globally via a global S&OP process and through a Global Monmer Team (GMT) which meets quarterly. When supply is required cross-regionally e.g. if have production problems or shutdowns then this product is sourced as much as possible from another region….

* * * Upstream/Downstream data is reported to the [Lucite Limited] board each month and a significant amount of modeling [is] done on the business uses upstream and downstream splits to forecast the business going forward.

(Veerman Memorandum at LIL 005367-005368)

By Veerman’s account, “[g]eographic data is reported to the board each month at the

level of [geographic segments] as management units.” (Veerman Memorandum at LIL 005368)

At his deposition, Lucite Limited Chief Executive Officer Ian Lambert confirmed that this

“modeling is done centrally to corroborate the information” that Lucite Limited corporate

headquarters “receive[s] from the units.” (Lambert Deposition Transcript [“Lambert

Transcript”] at 81-82)32 The “modeling” process takes place in Lucite Limited’s head office in

Southampton, England, and it is conducted by Veerman and Lambert, two of Lucite Limited’s

most senior officials, together with a third “business analyst.” (Lambert Transcript at 82) As

part of this centralized management system, Lucite Limited authorizes and directs the “global

monomer team” described in the Veerman Memorandum to coordinate Lucite’s MMA and

PMMA pricing and market strategies throughout the world. (Veerman Memorandum at LIL

005367)

32 All references to the Lambert Transcript are included as exerpts, in full context and in sequential page order, at Exhibit 13.

28

If Lambert’s affidavit is to be believed, Lucite Limited is merely a detached “holding

company for the Lucite group of companies,” including Lucite Inc., whose “day-to-day

operations” are purportedly “conducted and controlled by its own officers and directors, not

Lucite Limited.” (Lambert Affidavit, ¶¶ 5, 16) However, the Veerman Memorandum makes the

opposite conclusion clear: In whatever way one might understand the intentionally vague phrase

“day-to-day operations,” the fact is that the business of Lucite Inc. and every other member of

“the Lucite group of companies” is firmly dominated and controlled by the Lucite Limited parent

entity based in England.

Again according to Lucite Limited CFO Veerman: “We have only one board for Lucite

International – this board meets on a global basis and makes policy and strategy decisions on

a global basis. For operational, legal, fiscal and HR reasons management operates businesses

in different geographical locations under the strategic direction of Lucite International

Limited.” (Veerman Memorandum at LIL 005368) (emphasis supplied)

On matters of MMA and PMMA pricing, marketing and distribution, Lucite Limited’s

three regional divisions (one of which includes the Americas) do not operate autonomously

outside of the “global” policy and strategic decisions mandated by Lucite Limited’s senior

management; these regional divisions are instead required to implement the global pricing

strategy dictated by Lucite Limited. As the Veerman Memorandum admits, “Very few major

decisions [are] taken regionally and the regions do not operate independently of the global

picture.” (Veerman Memorandum at LIL 005368) (emphasis supplied)

Other Lucite Limited board documents demonstrate Lucite Limited’s tight grasp over its

operating subsidiaries; they likewise demonstrate Lucite Limited’s micro-management of the

development and implementation of the Lucite “Group’s” worldwide pricing policies for MMA

29

and PMMA -- without regard to any economically unsound distinction between the American

and European markets. These documents include:

A meeting handout for a September 2002 Lucite Limited board meeting held in Memphis, Tennessee, LIL 006161-005163, attached hereto as Exhibit 14 (“monomer prices are improving across all regions, US and Europe are posting 12-15% price increases”) (LIL 006161) (emphasis supplied)

Written material for a meeting of Lucite Limited board in April 2002, LIL

006017-006022 at 006019, attached hereto as Exhibit 15 (“Within our business we need to achieve in the US/Europe a better balance of market-to-contract/formula pricing on monomers.”) (emphasis supplied)

While the Lambert Affidavit submitted in support of Lucite's motion inaccurately

portrays Lucite Limited as an entity wholly separate and apart from Lucite Inc., the Veerman

Memorandum confirms the allegation in paragraph 32a of the Direct Purchaser Plaintiffs’

Complaint that “[t]he operations of Lucite Inc. are inseparable from those of its corporate parent

in Great Britain.”33 The Lucite Limited Brief at 3 describes the Direct Purchaser Plaintiffs’

allegations of dominance and control as “conclusory and bare bones,” even though the Lucite

Limited Brief at 5 acknowledges (but does not dispute) the extremely specific “non-exclusive

example” provided in paragraph 32a, which is reproduced here in its entirety:

The operations of Lucite Inc. are inseparable with those of its corporate parent in Great Britain. By way of non-exclusive example, there is a press release (and accompanying “Editor’s Note”) XXXXXXXXXXXXXXXXXXXXXXXXcrylic polymers), who announced a price increase for acrylic polymer products sold by Lucite in the United States. See http://www.luciteusa.com/news/Polymer Price Increase 8-4-06.pdfThat press release is written on “Lucite International”

33 The frequency and regularity of board meetings that Lucite holds in the United States also confirm the essential accuracy of this allegation. Lambert estimates that Lucite has conducted board meetings in Memphis, Tennessee three times and once in Texas and that Lucite endeavors to hold at least one of its board meetings in the United States each year. Lambert Transcript at 235-237 (Exhibit 13). During past meetings, Lucite’s board has addressed specific issues relating to the business of Lucite Inc, as well as the means by which Lucite purports to meet its own obligation to comply with financial reporting and corporate governance requirements of the Securities and Exchange Commission and the Sarbanes-Oxley Act of 2002. See LIL006649-006702 at LIL006660, attached here as Exhibit 16.

30

letterhead, which also occurred with respect to North American price increases throughout the Class period. The editor’s note asserts that “Lucite International is the world’s largest producer of methacrylates with a portfolio that includes Meth

For the Court’s independent reference, Whitaker’s August 4, 2006 press release and

annexed “Editor’s Note” are attached here as Exhibit 17.

The above facts demonstrate that Lucite Limited, acting on its own behalf and through

Lucite Inc., engaged in purposeful activity that was intended to, and did, control the price of

MMA and PMMA sold to customers in the United States. Such activity establishes Lucite

Limited’s amenability to specific jurisdiction before the Court in this litigation, where the precise

issue in controversy is the participation of Lucite Limited and Lucite Inc. in an unlawful price-

fixing conspiracy that affected United States commerce.

2. Lucite Limited and its Subsidiaries Operate as a Single Functional and Organic Entity

The evidence recounted in the immediately preceding section also establishes that Lucite

Limited and its subsidiaries -- like ICI and its subsidiaries -- share a “single functional and

organic identity” that subjects Lucite Limited to personal jurisdiction in this Court.

Numerous independent facts compel this conclusion, including:

a. “Lucite International’s” Interconnected Ownership Structure and Common Identity

A Form 20-F dated April 13, 2006 (“Lucite 2005 Form 20-F”) filed with the SEC by

Lucite International Group Holdings Limited (“Lucite Holdings”) at 22 and F-5634 demonstrates

that, while the corporate structure maintained by the “Lucite International Group” is superficially

intricate, the Company conducts its worldwide business as one integrated collective entity.

34 All references to the Lucite 2005 Form 20-F cited in this memorandum are included as excerpts, in full context and in sequential page order, at Exhibit 18.

31

The Lucite 2005 Form 20-F discloses that defendant Lucite Limited owns 100% of the

shares of Lucite Holdings, and that both entities together wholly own all of Lucite’s other

subsidiaries “known commercially” by the common name “Lucite International.” (Lucite 2005

Form 20-F at 22) Like other “Lucite International” subsidiaries, defendant Lucite Inc. is owned

100% by defendant Lucite Limited. (Lucite 2005 Form 20-F at F-56) The entire “Lucite

International” organization is controlled ultimately by a private fund known as Charterhouse

Capital Partners LLP (“Charterhouse”), which owns 78% of Lucite Limited’s common stock and

98% of Lucite’s Limited preferred stock; Charterhouse has “significant elective control” over

Lucite International’s entire business, including “the power to elect all of the directors of our

companies, to change their management, to approve any changes to their documents and to

approve any mergers.” (Lucite 2005 Form 20-F at 10) (emphasis supplied)

As the court held in Simeone, 360 F. Supp.2d at 676, a finding of personal jurisdiction is

supported when a corporate parent has “power to hire” the chief executive of a subsidiary,

despite the purported existence of the subsidiary’s “own management team.”

Like the ICI 2005 Annual Report, the Lucite 2005 Form-20-F blurs the formal legalistic

distinctions emphasized heavily in the Jurisdictional Motions, and it instead reinforces the

essential identity among the many “different” Lucite entities. For example, the Lucite 2005

Form-20-F at F-11 contains the following “business description” of “Lucite Holdings,” which

itself conducts no business operations aside from that associated with stock ownership of Lucite

Limited’s other subsidiaries:

[Lucite Holdings] and subsidiary companies (together referred to as “Lucite” or the “Company’) are engaged in the production and distribution of methacrylate monomers, the principal building block of acrylic, and the production and distribution of acrylic based polymers, resins, sheet and composite. These products are manufactured at facilities located in the Americas, Europe and Asia and are sold throughout the world.

32

Throughout the Lucite 2005 Form-20-F, Lucite Holdings uses the collective “we” or

“our” to describe many and varied elements of Lucite’s business, including, by way of non-

exhaustive example:

Risks Attendant to “International Operations”: “[W]e are exposed to economic downturns and local business risks in several different countries, particularly in the United States, and they could adversely affect our profitability…. We derive substantial revenue from international operations, particularly the United States. If there is an economic downturn in the United States… our profitability could be adversely affected” (Lucite 2005 Form-20-F at 11) (emphasis supplied)

Relationship With Key Supplier and Customer and Identification of Lucite’s

Physical Facilities: “Our relationship with DuPont is critical to our business and if this relationship were to cease, our cash flow, margins and competitive position could be materially and adversely affected. DuPont is our largest supplier and one of our largest customers, and we rely on DuPont for various manufacturing services. If DuPont were to cease to be our supplier or were to cease sharing site services with us, our cash flow, margins and competitive position could be materially and adversely affected. DuPont is our only supplier of hydroanic acid (‘HCN’) in the United States, specifically at our Beumont, Texas and Memphis, Tennessee facilities. We have recently entered an agreement with DuPont at our Beaumont, Texas facility, whereby we operate DuPont’s Acrylonirile (‘AN’) assets, and the by-product HCN from this process is supplied to us. At Memphis, DuPont produces HCN for its own internal use, and we are the only unaffiliated purchaser of the rest of its production….DuPont is also one of our largest customers. Several of our US facilities are located within DuPont Chemicals complexes and, in some cases, are operated by DuPont at our direction; we share supplies and services at those sites with DuPont and other site tenants.” (Lucite 2005 Form-20-F at 11) (emphasis supplied) Compare with Lambert Affidavit at ¶ 8 (“Lucite Limited maintains no office, place of business, or mailing address in the United States”).

Fixed Assets: “We recently entered into an agreement with DuPont (effective December

1, 2005), whereby we have an option to acquire DuPont’s Acrlonitrite (‘AN’) and HCN producing assets in Beaumont, Texas. We have concluded that the option is almost certain to be exercised….”35 (Lucite 2005 Form-20-F at F-20) (emphasis supplied)

Perhaps most significantly, the Lucite 2005 Form-20-F at 15 also makes clear that Lucite

Inc. is Lucite’s authorized agent in the United States: “Our agent in the United States is Lucite

35 As shown infra, at 39-40, Lucite’s “key” relationship with DuPont has apparently deteriorated so significantly that Lucite Inc. solicited and obtained the authorization of Lucite Limited’s board of directors to initiate legal proceedings against DuPont in an American court.

33

International, Inc., which is located at The Lucite Center, 7275 Goodlett Farms Parkway,

Cordova, Tennessee, 38018, USA.” Compare again with Lambert Affidavit at ¶ 8 (emphasis

supplied) (“Lucite Limited maintains no office, place of business, or mailing address in the

United States”) and Lambert Affidavit at 7 (emphasis supplied) (“Lucite Limited maintains no

officer, agent, distributor. servant, broker, wholesaler, or other representative anywhere in the

United States for the transaction of any business of any nature”). The law is well settled that

personal jurisdiction is established when a subsidiary functions, as Lucite Inc. does here, as an

“agent” of its parent. Arch, 984 F. Supp. at 837 and Latex Gloves, 2001 WL 964105, *3 n. 10

(citing cases).36

So too, the unified “Lucite International” identity that Lucite Limited uses to make it

“easier for customers to do business across geographic borders and product lines” is emphasized

prominently in its global web site, XXXXXXXXXXXXXX,37 as is Lucite’s “leading” position

and presence in the world, including the United States. As the Direct Purchaser Plaintiffs alleged

in paragraph 58 of the Complaint:

On its Web site, defendant Lucite asserts that it “is the world’s leading supplier of [MMA] and the only organization with production, research and development,

36 Lambert may be attempting to rely upon the fiction that there is a meaningful distinction between Lucite Limited and Lucite Holdings, even though “[a]ll of the issued share capital of [Lucite Holdings] is held directly by Lucite International Limited” (Lucite 2005 Form-20-F at 42) and even though Lucite Limited’s board discharges critical duties on behalf of Lucite Holdings, including corporate governance, audit, financial reporting, and remuneration policies. (Lucite 2005 Form-20-F at 40-41). Both Lucite Limited and Lucite Holdings may be deemed to be the “parent” of wholly owned Lucite Inc. Should the Court agree with Lambert’s implicit assertion that there is a meaningful difference between Lucite Inc.’s British “parents,” the Direct Purchaser Plaintiffs respectfully request leave to amend the Complaint to add other British-based Lucite entities as parties defendant, including Lucite U.K. Ltd. and Lucite Holdings. 37 See Directory Dividends, 2003 WL 21961448, at *4 (personal jurisdiction is proper where a “single, unified brand” identity that makes it “easier for customers to find and do business … across geographic boundaries and product lines”).

34

sales and marketing facilities in all three major geo-economic regions - the Americas, Europe and Asia.” See http://www.lucite.com/overview_global.asp. Representing that its corporate “strategy is to continue at the forefront of a global industry” in the production of MMA (“the main building block of acrylic,” for which Lucite claims to have a 25% global market share by volume), Lucite asserts that it “employs 2000 people in sales, marketing, R&D, manufacturing, engineering, technology and business support at 16 manufacturing sites and 35 sales offices around the globe” and that it “serve[s] and support[s] customers in more than 100 different countries....” See id. and http://www.lucite.com/overview_growth.as

Without mentioning the separate "autonomous" existence of Lucite Inc. or any other

United States operating subsidiary, Lucite’s global Web site identifies major American locations

at which Lucite maintains manufacturing and sales facilities, including (a) Beaumont, Texas; (b)

Belle, West Virginia; (c) Parkersburg, West Virginia; (d) Branch, Missouri; and (e) the

Memphis, Tennessee area (the location of three separate properties, the “Lucite Center”; the

“President’s Island” facility; and the “Fite Road” facility). See

http://www.lucite.com/overview_global.asp. While CEO Lambert represents to the Court that

Lucite Limited owns no property at all in the United States, Lucite’s global web site identifies

seven facilities in four different states.

The home page of Lucite’s “global” web site also allows visitors to select individual

“regional” sites, including the Americas, Asia and Europe. http://www.lucite.com/default.asp.

The “Americas” regional site contains no reference to the separate, autonomous, existence of

defendant Lucite Inc. or to any other American, Canadian or Mexican subsidiary. On the other

hand, the “contacts” link for the global page holds out Defendant Lucite International Ltd. as the

main contact for customers, investors and other interested parties in all geographic regions, and it

refers visitors to Lucite’s “Home office” in Southampton, United Kingdom.

http://www.luciteinternational.com/contacts.asp. This is consistent with the “non-exclusive

example” cited by the Direct Purchaser Plaintiffs in paragraph 32a of their Complaint – an

35

August 4, 2006 Lucite press release and “editor’s note” asserting that Lucite’s MMA and PMMA

business is “headquartered in Southampton UK,” with “region” headquarters in Tennessee. See

supra at 30-31 (While Lucite Limited attempts to dismiss the significance of this allegation, it

does not and cannot deny it.)

Lucite’s own statements attest to the fact that Lucite Limited treats (and portrays its

subsidiaries to the public) as “mere departments” of “a single functional and organic entity rather

than as separate, autonomous entities.” Directory Dividends, 2003 WL 21961448, at *3-4, 8

(citing In re Latex Gloves, 2001 WL 964105, at 3-4; Arch, 984 F. Supp. at 837). See also

Simeone, 360 F. Supp. 2d at 678.

b. Lucite Limited Dominates and Controls its Subsidiaries

As discussed above, supra, at 32, Charterhouse’s ownership of the stock of Lucite

Limited and its wholly owned subsidiaries gives Charterhouse “significant elective control” over

all of Lucite’s operations, including “the power to elect all of the directors” of the Lucite

“companies,” to change their management, to approve any changes to their documents and to

approve any mergers.” (Lucite 2005 Form-20-F at 10) Although nothing more is required to

demonstrate the type of domination and control necessary to establish personal jurisdiction over

Lucite Limited, numerous other facts also support this conclusion.

For example, Lucite Limited possessed and exercised the authority to control virtually

every aspect of Lucite Inc.’s business, including budgeting, non-budgeted capital expenditures,

code of ethics, compliance, third party litigation (including litigation under United States laws

and contracts); safety, health and environmental (“SHE”), group insurance, group

telecommunications and internet services, monomer pricing strategies and related transfer

pricing policies. Lucite Inc. exercised little actual independence, and only the “authorities” it had

36

were delegated to its subsidiaries specifically under a “Delegation of Authorities” issued by

Lucite Limited. See Lucite International Manual of Delegated Authorities, together with cover

memorandum to Lucite Limited’s board from Annie S. Veerman, dated September 13, 2006,

LIL007122-007136, attached here as Exhibit 19 (identifying “issues that need to be authorised

by the Lucite board” relating to revisions to the delegated authorities).

As mentioned supra at 27-29 and in the Veerman Memorandum described therein, Lucite

Limited’s board receives periodic financial information from its regional business segments;

Lucite Limited’s board uses this information to manage financial and business strategies for the

entire Lucite Group, with “few” decisions made regionally outside of the strict command and

control of Lucite Limited’s board. The nature and quality of financial information generated by

Lucite’s regional segments are, in turn, tightly regulated by Lucite Limited headquarters in the

United Kingdom. As the Lucite 2005 Form-20-F reported at 40:

Our audit committee and remuneration committee have been appointed by the Board of Lucite International Limited and are remitted to cover the entire Company including all subsidiaries of [Lucite Holdings]….The [audit] committee…is responsible for the appointment of auditors and reviews the suitability and effectiveness of internal control systems and the application of corporate policies throughout the Company.

(emphasis supplied).

The Lucite 2005 Form-20-F describes a similar centralized system governing the Lucite

“Group’s” corporate governance obligations:

The [Lucite Holdings] board’s duty of corporate governance is discharged in conjunction with the Board of Lucite International Limited. The Board meets on a regular basis to review performance and business plans of the Group. The Board has established policies for the conduct of business within the Group, including delegations of Board authority to directors and senior management. In addition, the Board appoints committees to ensure appropriate oversight of the Group companies’ operations.

(Lucite 2005 Form-20-F at 40) (emphasis supplied)

37

Among other things, Lucite Limited attempts to satisfy the corporate governance

requirements imposed by the Sarbanes-Oxley Act by employing a so-called “cascading” process

by which Lucite Inc. and all other entities comprising Lucite International provide “written

assurances” to the Lucite Limited board that their legal obligations have been met. See Lambert

Transcript at 192-193 (Exhibit 13) (describing the training of Lucite’s regional and global project

teams for Sarbanes-Oxley compliance and the prescribed use of “generic templates” by all

regions as approved by PriceWaterhouseCoopers).38

Lucite Limited keeps tight reign over the business operations of its subsidiaries in a

number of other significant ways, including through a:

Mandatory Code of Conduct: Lucite 2005 Form-20-F at 55 (emphasis supplied) (“We currently operate a code of business conduct and ethics … for all personnel. The Code of Conduct has been updated to be consistent with guidelines issued by the US Securities and Exchange Commission. The Board, including the CEO and the CFO, adopted the Code in 2004 and the business cascaded the Code to the organization through 2005”) (emphasis supplied) (Exhibit 18)

Mandatory Group Policy for Transfer Pricing: LIL 007336-007339 (attached hereto

as Exhibit 22) (all subsidiaries directly or indirectly controlled by Lucite Limited are required to adhere to policy applicable to “all transaction types including all goods and services traded within the group and any financing activities”) (Exhibit 18).

Mandatory Requirement for Product Stewardship:

www.luciteinternational.com/overview_product_stewardship.asp (“Company HS&E [health, safety and environment] Standards set out mandatory requirements for product

38 See, e.g., Year 2004 Letter of Assurance completed by Lucite and Lucite Inc. Board Member J. Jefferson Davis, the CEO of Lucite Inc, LIL008029-9032, attached here as Exhibit 20. Lucite designed this form for mandatory use by its various subsidiaries, and it demonstrates that Lucite Limited required uniform detailed reporting and accountability from every member of the Lucite International Group. This document further evidences both Lucite Limited’s authority to control its subsidiaries and its extensive exercise of that authority with respect to every aspect of business and operations. See also Letter of Assurance from Neil L. Sayers, attached here as Exhibit 21, LIL 007982-007983 (Lucite’s mandatory internal controls “encompass all processes, policies, standards, system and behaviours in place to address financial control, IT control, compliance controls, operations controls, SHE, fraud, HR and risk management”).

38

stewardship, covering the development of new products and the management of HS&E risk throughout the life of the product”) (Exhibit 18) The numerous mandatory requirements that Lucite Limited imposes on Lucite Inc. and

other operating subsidiaries in the United States are compelling factors supporting this Court’s

exercise of personal jurisdiction over Lucite Limited. Directory Dividends, Inc., 2003 WL

21961448, at *5 and Simeone, 360 F. Supp.2d at 677 (personal jurisdiction is established through

corporate parent’s control of business at the subsidiary level through subsidiaries’ required

adherence to a code of business conduct, policy manuals and guidelines).

c. Lucite’s Limited’s Board Authorized United States Litigation Against DuPont

Although the Lucite 2005 Form-20-F at 11 and F-20 (quoted above, supra at 33),

informed investors about the significance that Lucite placed on its relationship with DuPont and

the potential adverse consequences that could occur to Lucite if that relationship ruptured, Lucite

and Dupont have in fact become embroiled in significant business disputes. These disputes were

apparently so serious that Lucite Inc. obtained the approval and authorization of Lucite Limited’s

board of directors to initiate a lawsuit against DuPont.

As Lucite Limited CEO Lambert acknowledged in his deposition, Lucite Limited’s board

sanctioned the filing and prosecution of an action by Lucite Inc. against DuPont to enforce

alleged contractual indemnities:

Q. Was there an occasion where the issuance of a claim letter and the filing of an action by Lucite International Inc. against E. I. DuPont de Nemours relating to certain contractual indemnities?

A. Yes. The delegations of authority require legal actions to be taken against

third parties to be notified to the Lucite International board. Such actions can have repercussions. So the claim – – contractual claims against E. I. DuPont de Nemours was made inter alia by Lucite International Inc. and the authority under the delegation of authority was granted at this meeting.

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(Lambert Transcript at 178) (Exhibit 13).

By approving alleged claims by Lucite Inc. to enforce a contractual indemnity against

DuPont, an American company so important to Lucite’s integrated global operation that it

warranted several pages of disclosure in the Lucite 2005 Form-20-F (Exhibit 18), Lucite Limited

has manifested its intention to purposefully invoke the benefits of the United States legal system

and United States laws such that this Court’s exercise of jurisdiction over Lucite Limited would

not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,

326 U.S. 310, 317 (1945).

d. Lucite Limited and its Subsidiaries Share Common Information Technology

Under Lucite Limited’s corporate direction, a critical part of Lucite’s information

technology system is based in the United States. A data center located in Lucite’s “TLC

Headquarters” in Cordova, Tennessee is equipped with computers, electronics and

telecommunications equipment that support Lucite’s global business in important ways. See LIL

0001605–0001609, attached here as Exhibit 23.

Among other things, the Tennessee-based Data Center provides to Lucite Limited:

“[C]ommunications and computing services for US, Canada, Mexico and Asia Pacific based Acrylics businesses.” (Id. at LIL 0001609) (emphasis supplied)

A “telecommunications hub for Lucite’s Acrylics global WAN [wide area network]” (Id.

at LIL 0001605) (emphasis supplied) Global web site hosting, including for http://www.luciteinternational.com (Id.)

“Multi-region Internet services, dial services and remote user authentication.” (Id.)

(emphasis supplied)

e. The Lucite “Group’s” Extensive Use of the United States Capital Markets

(1) Notes Issued by Lucite Holdings

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In much the same way that ICI subjected itself to jurisdiction in the United States through

its issuance and sale of ADRs to American investors (see supra at 9-12), the Lucite Group’s

issuance of millions of Euros in debt instruments purchased by American investors through the

United States over-the-counter market demonstrates that Lucite Limited has purposefully availed

itself of the benefits and protections of United States law such that there is nothing unreasonable

about subjecting Lucite Limited to jurisdiction before a court of law in the United States. See

Lucite 2005 Form-20-F at 47 (identifying indentures dated May 4, 2000 and June 25, 2003). See

also Simpson Thacher & Bartlett press release dated August 10, 2006, entitled “Simpson

Thacher Represents Lucite International in 1.3 Billion Recapitalization,

http://www.stblaw.com/siteContent.cfm?contentID=3&itemID=73&focusID=654, a copy of

which is attached here as Exhibit 24 (“Simpson Thacher Press Release”).

As ICI did with its ADRs, Lucite’s election to have its senior notes traded in the

American securities markets triggered application of the United States securities laws, including

the Securities Exchange Act of 1934 and the Sarbanes-Oxley Act of 2002. Indeed, it is only

because of those American laws that Lucite, headquartered in the United Kingdom, has been

required to file and disseminate public documents like the Lucite 2005 Form-20-F and that

Lucite Limited has undertaken steps to require its subsidiaries to satisfy American corporate

governance standards.

More recently, Lucite’s August 2006 “1.3 Billion Recapitalization” also invoked the

protection of New York State law. As the Simpson Thacher Press Release stated, “Although

Lucite International is UK-based, all the documentation was drafted under New York law, and

much of the funding was raised in the U.S.”

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In his deposition, Lambert explained Lucite Limited’s rationale for invoking the benefits

and protections of the SEC and the United States securities laws in the following terms:

The SEC represents a recognized and reputable exchange that establishes clear rules for publication of accounts, the timeliness of the filing of the accounts, the audit and other internal control requirements that are required of people who are registrants. Thus, whenever listing a public instrument that may or is intended to be traded, it is useful to select a recognized exchange where information can be disclosed in a predetermined format that provides investors with confidence. The very paper they’re trading is backed up by the information they would normally expect to see. The SEC is a suitable candidate for that irresepective of the location of the issue of the bonds or the identity of the issuer.

(Lambert Transcript at 165-166).

While Lambert may be aware of the benefits of trading in the American securities

markets, he is disconcertingly unimpressed with the disclosure requirements that the United

States securities laws impose on foreign issuers like Lucite. At his deposition, Lambert was

confronted with specific statements set forth in the Lucite 2005 Form-20-F, particularly

statements relating to the “risks” to which American investors are exposed in investing in

Lucite’s debt instruments – precisely the type of information necessary for an investor to

understand and appreciate before making any informed investment decision. Lambert testified

that Lucite's own SEC filing included disclosures that were “not particularly accurate” and

“hyperbolic.” (Lambert Transcript at 40-42) (Exhibit 13). Lambert’s testimony, like his

conclusory affidavit in support of this motion, should not be credited by this Court because it is

directly contrary to Lucite's repeated public statements, repeated statements made in its global

website and candid statements set forth in Lucite Limited's board papers and related business

documents.

(2) Lucite Limited’s Sales of Lucite Stock to United States Employees of Lucite Inc.

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Lucite Limited also purposefully invoked the benefits of doing business in the United

States by its initiation and consummation of an offer and sale of more than 350,000 of its Class

D shares to 600 United States investors as part of a Lucite “USA Share Scheme” offered to

employees of defendant Lucite Inc. This stock offering was discussed by Lucite Limited’s

senior management during a Lucite Limited board meeting held in March 2003 at or near its

operations in Beaumont and Houston, Texas. See March 2003 Lucite Limited board materials.

See Exhibit 16, LIL 006649-006702. (The USA Share Scheme “has been launched very

successfully with 99.5+% participation. The [Lucite Limited] Board ratified the applications and

the issue of 357,220 “D” ordinary Shares”) (LIL 0006660).

At his deposition, Lambert confirmed that Lucite Limited initiated this scheme and

successfully offered and sold its securities to United States employees of Lucite Inc. Lambert

Transcript at 112. The planning and implementation of this scheme involved the offer and sale of

securities in the heavily regulated United States securities markets, implicating compliance, not

only with the SEC’s requirements, but with the requirements of individual state blue sky laws

protecting investors in Tennessee, Texas, Missouri and West Virginia. This scheme also

involved direct contractual arrangements between Lucite Limited and more than 99% of Lucite

Inc.’s United States employees, including subscription agreements, shareholder agreements and

the issuance of certificated ‘D” shares by Lucite Limited.

Lucite Limited recently invoked its powerful rights under the shareholder agreements

with its United States employee investors and redeemed these shares. As a consequence, those

shares are no longer outstanding, but Lucite Limited’s purposeful action in availing itself of the

privileges and obligations of American law remains a significant factor in its consideration of the

question of personal jurisdiction over Lucite Limited in this litigation.

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f. Lucite’s Overlapping Management

At paragraph 17 of his affidavit, Lambert concedes that J. Jefferson Davis is a member of

the board of directors of both Lucite Limited and Lucite Inc. Even if Davis is, as Lambert claims,

the “only such member” serving in this capacity, Lucite’s worldwide boards are very small, with

Lucite Holdings for example having a mere six members. See Lucite 2005 Form-20-F at 38-39.

By any measure, and especially given the limited number of directors making “strategic

decisions” in England for Lucite subsidiaries in the United States and throughout the world,

Davis’s combined influence over the common business affairs of both Lucite Limited and Lucite

Inc. is both substantial and highly relevant to the issue of Lucite Limited’s jurisdictional contacts

with the United States. In this regard, it is worth recalling that Charterhouse itself reserves the

right to select and fire at its discretion any member of Lucite’s management throughout the

Lucite global corporate structure. See, supra, at 32.

At his deposition, Lucite Limited CEO Lambert expressed confusion as to who did what

in terms of managing Lucite Limited and other subsidiary members of the worldwide Lucite

“Group.” For example, Lambert described the overlap and shared functions in directorships and

senior management between Lucite Limited and its many affiliated entities (see generally

Lambert Transcript at 8-24). Lambert could not identify all subsidiaries for which he served as a

board member (id. at 12-13). Moreover, Lambert did not comprehensibly describe the

management responsibilities exercised by Lucite Limited CFO Annie Veerman, one of the select

number of people in England calling the shots for Lucite Limited subsidiaries throughout the

world. (Id. at 14-16) This failure to distinguish what would otherwise be important management

responsibilities is not surprising given Veerman’s candid acknowledgement that “we have only

one board for Lucite International – this board meets on a global basis and makes policy and

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strategy decisions on a global basis…. Very few major decisions [are] taken regionally and the

regions do not operate independently of the global picture.” Veerman Memorandum at LIL

005368, Exhibit 12.39

Here, as in Directory Dividends, 2003 WL 21961448, at *4-*5, overlapping directors and

management and “common use of employees and interchange of managerial and supervisory

personnel” are factors supporting personal jurisdiction.

g. Common Representation of Lucite Limited and Lucite Inc. By The Same Law Firm

“Representation by the same attorney indicates that a parent and wholly owned subsidiary

are acting as a single entity.” Directory Dividends, 2003 WL 21961448, at *5, citing. Genesis

Bio Pharmaceuticals, Inc. v. Chiron Corp., 2002 WL 27261 *4 (3d Cir. 2002). In the instant

litigation, both Lucite Limited and Lucite Inc. are represented by the same counsel.

D. Jurisdiction Over Lucite Limited is Not Unfair or Unjust

At page 15 of the Lucite Limited Brief, Lucite Limited argues that this Court’s exercise

of personal jurisdiction in this litigation would “offend traditional notions of fair play and

substantial justice” because Lucite Limited’s burdens in defending the lawsuit are purportedly

“unreasonable and onerous” and because Lucite Limited would suffer “significant logistical

burdens, expense and inconvenience.”

As shown in the immediately preceding section, however, Lucite Inc. is already a

defendant in this litigation, and the same team of attorneys who represent Lucite Inc. also

39 As the Lucite 2005 Form-20-F at 39 makes clear, both Lambert and Veerman have substantial experience working in the PMMA and MMA business in the United States. Lambert joined ICI in 1985, 14 years before ICI’s disvested ICI Acrylics in 1999. In 1989, Lambert became controller of Engineering Plastics in the United Sttaes. From 1991, Lambert spent three years as Director of Finance and IT at ICI Fiberite in Arizona. (Id. ) From 1996-1998, Veerman spent two years based in Memphis as Finance and IT Director of ICI Acrylics, Inc. (Id.)

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represents Lucite Limited. There would be no “burden” at all imposed by this Court’s exercise

of jurisdiction over Lucite Limitedbecause, given the Direct Purchaser Plaintiffs’ clearly

articulated allegations of a global MMA/PMMA price-fixing conspiracy, Lucite Limited will be

required, as a party or third party, to produce relevant documents and to make its officers and

directors available for deposition. On the other hand, removal of Lucite Limited as a party to this

litigation based on unsupportable jurisdictional protests would significantly increase the

complexity and burdens faced by all parties to this litigation – and the Court – if the Direct

Purchaser Plaintiffs are required to seek such critical discovery through cumbersome multi-

national procedures.

Here, as in any case in which a defendant seeks to avoid personal jurisdiction on the

ground of “unfairness” that would “offend traditional notions of fair play and substantial justice,”

it is the defendant that assumes a “heavy burden” in presenting a “compelling case” that

jurisdiction is “unreasonable.” CDI v. Marck, 2005 WL 146890, at 4 (E.D. Pa. Jan. 21, 2005)

(and cases quoted therein). Lucite Limited cannot satisfy that heavy burden here because all

other defendants, including Lucite Limited’s own United States subsidiary, are already before

this Court, and exercise of jurisdiction in this District affirmatively “promotes the effective

resolution of the controversy.” Commodity Futures Trading Commission v. Worldwide

Commodity Corp., 366 F. Supp.2d 276, 283 (E.D.Pa. 2005). Likewise, our “national interest” in

furthering the policies of the antitrust laws under which the Direct Purchaser Plaintiffs have

brought this litigation militates strongly in favor of this Court’s exercise of personal jurisdiction

against Lucite Limited, ICI and their respective United States subsidiaries. Id. at 282-283. See

also Pinker, 292 F.3d at 372.

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III. CONCLUSION

For the reasons expressed above, the Direct Purchaser Plaintiffs respectfully request this

Court to deny the Jurisdictional Motions in their entirety. Should the Court discern a need for

further exploration of any of the factors supporting its exercise of jurisdiction over ICI and

Lucite in this litigation, the Direct Purchaser Plaintiffs respectfully request leave to undertake

further limited jurisdictional discovery necessary to a fair adjudication of the issues raised in

connection with the Jurisdictional Motions.

Dated: January 12, 2007 Respectfully submitted,

BOLOGNESE & ASSOCIATES, LLC By:

Anthony J. Bolognese Joshua H. Grabar John G. Narkin 1617 JFK Blvd., Suite 650 Philadelphia, PA 19103 Telephone: (215) 814-6750 Facsimile: (215) 814-6764 E-Mail: ABolognese@bolognese-law.com

H. Laddie Montague Ruthanne Gordon Charles P. Goodwin BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-Mail: rgordon@bm.net

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Steven A. Kanner William H. London Douglas A. Millen MUCH SHELIST FREED DENENBERG AMENT & RUBENSTEIN, P.C. 191 North Wacker Drive, Suite 1800 Chicago, IL 60606 Telephone: (312) 521-2000 Facsimile: (312) 521-2100 E-Mail: skanner@muchshelist.com Michael D. Hausfeld William P. Butterfield Megan E. Jones COHEN MILSTEIN HAUSFELD & TOLL, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-Mail: mhausfeld@cmht.com Interim Co-Lead Counsel for Direct Purchaser Plaintiffs

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1