concurring.
I concur in the affirmance. Although Ferro takes issue with the district court’s application of Ohio case law, faulting the court for its seeming conclusion that the question whether Cookson had a duty to defend “must be answered solely as of the date the complaints in the Antitrust Cases were filed and solely from the language in the complaint” [Pl.’s Br. 19], Ferro has not successfully refuted the district court’s core conclusion that each underlying Antitrust complaint must be examined to determine if it can reasonably be understood as asserting a claim covered by the indemnity agreement. To be sure, Ferro is correct in pressing the point that this determination must be made in light of post-complaint developments in the litigation, including the discovery upon which Ferro relies. But even in this light, only the Direct Purchaser complaint can even arguably be read to allege successor liability. And nothing that occurred in the course of litigation changes that fact or makes the other complaints reasonably susceptible of another interpretation.
The Consolidated Amended Complaint in the Direct Purchaser Antitrust class action states in paragraph 1, under the heading Nature of the Case: “This lawsuit is brought as a class action on behalf of all individuals and entities who purchased eertain Plastic Additives, ... directly from defendants or any predecessors, parents, subsidiaries, or affiliates thereof (collectively referred to as “Defendants”) from at least as early as January 1, 1990 to January 31, 2003 (the ‘Class Period’).” [Emphasis added.] Antitrust plaintiffs later echoed this language in discovery requests and answers. The complaint, however, describes Ferro without reference to Synpro: “Defendant Ferro Corporation (“Ferro”) is an Ohio corporation with its principal place of business at 1000 Lakeside Avenue, Cleveland, Ohio. Ferro manufactured, marketed and/or sold heat stabilizers and impact modifiers in the United State [sic] during the Class Period.”
When read as a whole, the Direct Purchaser complaint, although ambiguous, can reasonably be read to include allegations of liability based on the conduct of Ferro’s “predecessor” Synpro, given the preamble’s assertion that “defendants” includes “predecessors.” However, I can find nothing in the record or the briefs indicating that Ferro at any time cited or relied on this language.1 In this court, Ferro argues that the district court erred in failing to appreciate that Willoughby Hills2 allows an indemnitee to use information acquired in the course of litigation to establish a duty to defend. After asserting that the *955“district court was still obligated to examine ‘matters well outside the four corners of the pleadings,’ to determine whether ‘the allegations do state a claim which is potentially or arguably within the policy coverage,’ ” a proposition with which this panel has no quarrel, Ferro continues:
The complaints in the Antitrust Cases allege (1) the existence of an antitrust conspiracy that started in 1990 and lasted until 2003 and (2) that both named and unnamed co-conspirators engaged in that conspiracy. Those allegations, when viewed in context with the discovery requests, discovery responses, deposition testimony, and Robert Kaplan’s statement that “Ferro would have been potentially liable for any anticompetitive conduct engaged in by Synpro prior to the time Ferro acquired Synpro’s Plastics Additives business,” [citation to record omitted] demonstrate quite clearly that the underlying complaints state claims that are arguably or potentially within the scope of Cookson’s duty to defend.
The problem with this argument is that without any allegations in the underlying complaints that can arguably be read as asserting, on any ground, Ferro’s liability for Synpro’s pre-acquisition conduct, or any court action in the underlying proceedings that can be understood as recognizing such a claim, the discovery requests and responses, deposition testimony, and even counsel’s affidavit do not create a covered claim where none was even arguably made. And, like the district court, I do not find the two allegations cited by Ferro — (1) the existence of an antitrust conspiracy that started in 1990 and lasted until 2003 and (2) that both named and unnamed co-conspirators engaged in that conspiracy — to allege Ferro’s liability for Synpro’s actions, even when viewed in the light of the later discovery materials. I thus concur.
. Under the circumstance that this language, found in the "Nature of the Case” preamble in one of the four complaints, has never been referred to (as far as I have been able to discover in the record) by either party or the court, I am not prepared to urge reversal on this basis. While this may provide fodder for the argument that the district court and this court place too much reliance on the underlying Antitrust complaints, the cases are clear, as is the rationale — the asserted right to indemnity and a defense must be grounded in the plaintiffs’ claims in the underlying suits. Those claims may be fleshed out or elucidated through discovery, but the claims must be at least potentially part of the underlying lawsuits. No court would permit the Antitrust plaintiffs to proceed on a successor liability theory based on the PolyOne, Indirect Purchaser or California complaints, or the Direct Purchaser complaint without the Nature of the Case language, notwithstanding any developments in discovery. Further litigation would not be required to eliminate these potential claims, but rather to add them. Thus, the plaintiffs’ recovery in those cases cannot even arguably be based on Ferro’s asserted liability for Synpro's conduct.
. City of Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177, 459 N.E.2d 555 (1984).