Antitrust Law Daily Wrap Up, ANTITRUST—NDCal: Electronics Reseller Could Pursue Federal, Limited California Claims Stemming from LCD Price Fixing , (Nov 30, 2012)

By E. Darius Sturmer, J.D.

ViewSonic Corporation, a manufacturer of televisions, computer monitors, and other consumer electronics, had standing to pursue federal antitrust claims against makers of thin-film transistor liquid crystal display panels utilized in those electronics for allegedly conspiring to fix prices of the panels globally, the federal district court in San Francisco has ruled. Furthermore, sufficient tolling of the statute of limitations applied to Viewsonic’s California Cartwright Act and Unfair Competition Law claims to render those claims timely (In re: TFT-LCD (Flat Panel) Antitrust Litigation, November 28, 2012, Illston, S.).

However, the company’s failure to show that the filing of a direct purchaser class action complaint based on the same conspiracy in December 2006 tolled its state law claims under California’s equitable tolling doctrine limited its California state law claims to the defendants, products, and conspiracy time periods identified in two sister suits brought more recently and in the consolidated amended complaint of an indirect purchaser plaintiff class during the time that resellers were included in that action. Therefore, a motion by the defendants to dismiss the claims in part was granted.

Sherman Act Standing

The court rejected arguments by the defendants that ViewSonic had no standing to seek damages under the Sherman Act based on its indirect purchases because it had (1) failed to adequately plead the ownership or control exception to theIllinois Brick bar on indirect purchaser standing and (2) failed to allege which co-conspirator sold finished LCD products to it. ViewSonic’s allegations that it bought LCD products from defendants and co-conspirators were sufficient to state a claim under the ownership or control exception.

The ownership or control exception still covered situations where a co-conspirator owned or controlled a direct purchaser and the direct purchaser owned or controlled the seller or co-conspirator, the court stated. Furthermore, ViewSonic was not required to identify with specificity who it purchased finished products from, given that significant evidence of the alleged conspiracy was in the public domain.

Statute of Limitations

After a finding in a prior motion to dismiss that ViewSonic failed to sufficiently plead facts to justify tolling for its state law claims, which were filed on January 20, 2012, the company identified two primary sources on which it relied for tolling: the Consolidated Amended Complaint in the indirect purchaser plaintiff action and two individual complaints that had been filed in February 2007. The court found that tolling under the American Pipe doctrine applied to toll ViewSonic’s California claims from November 5, 2007 through December 5, 2008, when resellers like ViewSonic were excluded from the scope of that action. However, that still left the company’s suit untimely by ten days. In order to maintain consistency with its past orders, the court noted, the company could rely on the two cases to provide those days, but only to the extent that those pleadings identified the defendants, products, and conspiracy periods.

The December 2006 filing of a direct purchaser class action complaint had no tolling effect, the court decided. Because ViewSonic did not even attempt to show that the direct purchaser class claims were substantially similar to the California class claims in terms of proof, it was questionable whether that action provided fair notice of the need to investigate potential indirect purchaser claims under California law. Moreover, because ViewSonic waited as long as it did to file its indirect purchaser claims, the defendants were prejudiced in their ability to collect evidence and defend against the claims.

The litigation is No. M 07-1827 SI, MDL No. 1827. The specific case at issue within the consolidated multidistrict litigation is No. 12-03335 SI.

Janet Irene Levine (Crowell & Moring LLP) for ViewSonic Corp. Carl Lawrence Blumenstein (Nossaman LLP) for AU Optronics Corp.

Cases: Antitrust CaliforniaNews