Antitrust Law Daily Wrap Up, ANTITRUST—DMd: Request to Amend Certified Class of Titanium Dioxide Purchasers in Price Fixing Action Not Yet Ripe, (Nov 28, 2012)

By Jeffrey May, J.D.

The federal district court in Baltimore has denied a request from producers of titanium dioxide to amend a recently certified class of purchasers asserting antitrust claims (In Re: Titanium Dioxide Antitrust Litigation, November 27, 2012, Bennett, R.). The defending producers' motion to amend the class definition was not yet ripe for review.

In August, the court certified a class of customers who purchased titanium dioxide from the defending producers from February 2003 until the present (2012-2 Trade Cases ¶78,044). The complaining purchasers alleged a conspiracy to fix prices for titanium dioxide, which is a chemical powder used as a pigment for paints and other products. At that time, the court rejected an assertion by the defendants that the plaintiffs' claims were atypical in that they were small purchasers located in narrow geographies. Minor issues the defendants raised as to the adequacy of the named plaintiffs to represent the proposed class involved no fundamental conflict going to the heart of the litigation, it was decided.

Following certification, the defendants argued that the class should be amended to exclude any putative members who are contractually barred from participation in this class action litigation. The defendants contend that the class should exclude purchasers whose written contracts contain (1) an arbitration clause, (2) a clause restricting the litigation of disputes to courts other than the U.S. District Court for the Northern District of Maryland, and/or (3) a provision waiving the right to a jury trial. The defending producers sought this amendment before notice was issued to the class and the opt-out period expired.

The court decided that the motion to amend should be deferred until after class notice has issued and the opt-out period has expired. The court could not determine whether the mandatory contractual provisions were enforceable until the parties were known and the record presented by the parties was fully developed. After the opt-out period, the defendants would be in a position to supply the court with the actual contracts on which to base a motion to amend class definition or a motion to compel arbitration.

The case is RDB-10-0318.

Michael C. Dell Angelo (Berger and Montague PC) for Haley Paint Co. Darin P. McAtee (Cravath Swaine and Moore LLP) for E.I. Dupont De Nemours and Co.

Cases: Antitrust MarylandNews